Report No. 262

(ii) Factors considered Aggravating and Mitigating

5.2.28 In Bachan Singh, the Court recognized and emphasized that each case is unique and has to be decided on its own facts and circumstances. For this reason, the Court refused to provide any standardization or categorization of offences for which the death penalty would be applicable. At the same time however, the Court held that sentencing discretion was not untrammelled.

Rather, it endorsed the holding in Jagmohan that "sentencing discretion is to be exercised judicially on well-recognised principles crystallised by judicial decisions illustrating as to what were regarded as aggravating or mitigating circumstances in those eases."Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 197. Bachan Singh therefore directed courts to determine whether a case is rarest of rare keeping in mind judicial principles derived from a study of precedents as to the kinds of factors that are aggravating and those that are mitigating.

Bachan Singh thus endorsed the twin elements of individualized yet principled sentencing. However, as the Supreme Court has since recognized and the cases below demonstrate, "although the court ordinarily would look to the precedents, but, this becomes extremely difficult, if not impossible,. [since] [t]here is no uniformity of precedents, to say the least." Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 104.

a. Non-Consideration of Aggravating and Mitigating Circumstances

5.2.29 In State of U.P. v. Satish, (2005) 3 SCC 114 the accused was convicted for committing the rape and murder of a minor. On the question of sentence, the Court, after surveying decisions which have laid down principles regarding the imposition of the death penalty, stated that it had "no hesitation in holding that the case at hand falls in rarest of rare category and death sentence awarded by the trial Court was appropriate."State of U.P. v. Satish, (2005) 3 SCC 114. The judgement is completely silent on the aggravating and mitigating circumstances of the case, contains no discussion whatsoever on why the case at hand deserved the imposition of death.

5.2.30 This is not an isolated instance. Many cases subsequent to Bachan Singh, for example, Lok Pal Singh v. State of M.P., A.I.R. 1985 SC 891, Darshan Singh v. State of Punjab, (1988) 1 SCC 618 and Ranjeet Singh v. State of Rajasthan, (1980) 1 SCC 683, have upheld the death sentence without referring to the "rarest of rare" formulation at all.

In some other cases, such as Mukund v. State of M.P., (1997) 10 SCC 130, Ashok Kumar Pandey v. State of Delhi, (2002) 4 SCC 76, Farooq v. State of Kerala, (2002) 4 SCC 697 and Acharaparambath Pradeepan v. State of Kerala, (2006) 13 SCC 643, to name a few, the Court referred to the "rarest of rare" dicta, but did not apply it in imposing/commuting the death sentence, thereby paying mere lip service to the "rarest of the rare" test.

b. Age as a Mitigating Factor

5.2.31 Bachan Singh had recognized that the young age of the offender is a relevant mitigating circumstance which should be given great weightage in the determination of sentence. The Court has repeatedly held that if the offender committed the crime at a young age, the possibility of reforming the offender cannot be ruled out. For example, in Ramnaresh and Ors. v. State of Chhattisgarh, (2012) 4 SCC 257, involving a gang rape and murder, the Court imposed a life sentence taking into account the young age of the convicts (all between 21-30 years of age), which pointed to the possibility of reform.

Similarly, in Ramesh v. State of Rajasthan, (2011) 3 SCC 685, a case involving a double murder for gain, the Court imposed a life sentence by holding that the young age of the convict was a mitigating factor since he could be reformed. In Surendra Mahto v. State of Bihar, Criminal Appeal No. 211/2009 the primary mitigating factor considered by the Court in imposing the life sentence was that the offender was only 30 years old and hence could be reformed.

5.2.32 However, age as a mitigating factor has been used very inconsistently. In the dissent in Bachan Singh itself, Justice Bhagwati had cited multiple examples of otherwise similar cases where the young age of the offender was or was not considered the basis for imposing a life sentence instead of death. This trend of inconsistency in considering the age of the accused as a mitigating factor continues post-Bachan Singh.

5.2.33 To take one example, in Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220 the Supreme Court had imposed the death sentence on the offender for committing the rape and murder of an 18 year old woman who lived in a building where he was a security guard. This case was noticed in Rameshbhai Chandubhai Rathod (2) v. State of Gujarat, (2011) 2 SCC 764, which according to the Court's own assessment involved similar facts except that the rape and murder in this case was that of a child.

On reference to a larger Bench because the two judge Bench could not agree on the sentence, the three-judge Bench of the Court noted the similarity of the facts to Dhananjoy Chatterjee's case, but held that offender's age was only 28 years which left open the possibility of reform, and hence imposed the life sentence. Therefore in an admittedly similar fact situation Rameshbhai Rathod was given the life imprisonment because he was 28 years old. Dhananjoy Chatterjee was given the death sentence and was executed in 2004. He was 27 years old.

5.2.34 Purushottam Dashrath Borate v. State of Maharashtra, A.I.R. 2015 SC 2170, a very recent case decided by the Supreme Court in May this year, involved a similar fact situation of rape and murder. The Court again pointed to the similarity of the case to that of Dhananjoy Chatterjee, and following Dhananjoy Chatterjee, it imposed the death penalty on both the offenders.

The Court did not refer to the decision in Rameshbhai Rathod; nor to the decision in Shankar Khade which had doubted the imposition of the death penalty in Dhananjoy Chatterjee on the ground that the Court had not accounted for mitigating factors. The age of the offenders in Purushottam Dashrath Borate was 26 years and 20 years respectively. The age of the accused is taken from the High Court judgment in this case. See State of Maharashtra v. Purushottam Dashrath Borate, Criminal Appeal No. 632/2012(Bom), 25.09.2012.

5.2.35 The Supreme Court in Shankar Khade pointed to the inconsistent use of age as a mitigating factor in otherwise similar cases of rape and murder. On the one hand the offenders in Amit v. State of Maharashtra, (2003) 8 SCC 93 (aged about 20 years), Rahul v. State of Maharashtra, (2005) 10 SCC 322 (aged 24 years), Santosh Kumar Singh v. State, (2010) 9 SCC 747 (aged 24 years), Rameshbhai Chandubhai Rathod (2) v. State of Gujarat, (2011) 2 SCC 764 (aged 28 years), and Amit v. State of Uttar Pradesh, (2012) 4 SCC 107 (aged 28 years),
were not given the death sentence since their age was considered a mitigating factor, on the other in Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220 (aged 27 years), Jai Kumar v. State of Madhya Pradesh, (1999) 5 SCC 1 (aged 22 years), and Shivu v. Registrar General, High Court of Karnataka, (2007) 4 SCC 713 (aged about 20 and 22 years), the young age of the accused was either not considered or was deemed irrelevant.

c. Nature of offence as an Aggravating Factor

5.2.36 Since the death penalty is to be awarded only in the rarest of rare cases, Bariyar required judges to survey a pool of similar cases to determine whether the case before them was rarest of rare or not.

5.2.37 Recently, in Shankar Khade, the Supreme Court again alluded to the need for evidence based death sentencing, and was concerned that the rarest of rare formulation is unworkable unless empirical evidence is made available which allows the Court to evaluate whether that a particular case is "rarer" than a comparative pool of rare cases.

In the absence of this data, the Court felt that the application of the rarest of rare formulation becomes "extremely delicate" and "subjective." Shivu v. Registrar General, High Court of Karnataka, (2007) 4 SCC 713, at paras 2-3. However, as the Court realised in this case, while surveying a pool of cases relating to rape and murder, the rape and murder of a young child shocks the judicial conscience in some cases, not in others.

5.2.38 So, for example, on the one hand the Court has held that the rape and murder of a one and half year old child in one case, Mohd. Chaman v. State (NCT of Delhi), (2001) 2 SCC 28, of a 6 year old child in another, Bantu v. State of M.P., (2001) 9 SCC 615 and 10 year old child in a third, Haresh Mohandas Rajput v. State of Maharashtra, (2011) 12 SCC 56, would not attract the death penalty because though these crimes were heinous, the offenders were not a danger to society, and the possibility of reform was not closed.

On the other hand, in another series of cases, the Court has held that the rape and murder of a 5 year old, Bantu v. State of U.P., (2008) 11 SCC 113, a 6 year old, Jumman Khan v. State of U.P., (1991) 1 SCC 752 or a 7 year old, Kamta Tiwari v. State of M.P., (1996) 6 SCC 250 or a 9 year old, Shivaji @ Dadya Shankar Alhat v. The State of Maharashtra, (2008) 15 SCC 269, were by their very nature extremely brutal, depraved, heinous and gruesome, and were thus deserving of the ultimate penalty.

So for example, in Jumman Khan v. State of U.P., (1991) 1 SCC 752, involving the rape and murder of a 6 year old, the Court held that "[t]he only punishment which the appellant deserves for having committed the reprehensible and gruesome murder of the innocent child to satisfy his lust, is nothing but death as a measure of social necessity and also as a means of deterring other potential offenders." Jumman Khan v. State of U.P., (1991) 1 SCC 752, at para 4.

5.2.39 Similarly, in Md. Mannan v. State of Bihar, (2011) 8 S.C.C 65 the convict had kidnapped, raped and murdered a seven year old. The Court awarded the death penalty since the victim was an "innocent, helpless and defenceless child." Md. Mannan v. State of Bihar, (2011) 8 S.C.C 65, at para 18. The Court held that the crime "had invited extreme indignation of the community and shocked the collective conscience of the society.

Their expectation from the authority conferred with the power to adjudicate, is to inflict the death sentence which is natural and logical." Md. Mannan v. State of Bihar, (2011) 8 S.C.C 65, at para 18. With respect, given the contrary line of cases above, it is not clear from this judgement why in this case, but not in the ones mentioned above, the collective conscience of the society had been so shocked as to invite the punishment of death. The inconsistencies highlighted here, and noticed by the Court itself in Khade, make the infliction of the death penalty in this case anything but "natural and logical." Md. Mannan v. State of Bihar, (2011) 8 S.C.C 65, at para 18.

5.2.40 These inconsistencies have moved the Supreme Court to itself acknowledge that "there is a very thin line on facts which separates the award of a capital sentence from a life sentence in the case of rape and murder of a young child by a young man and the subjective opinion of individual Judges as to the morality, efficacy or otherwise of a death sentence cannot entirely be ruled out." Rameshbhai Rathod (2) v. State of Gujarat, (2011) 2 SCC 764, at para 8.

5.2.41 Similarly, compare the cases of State of Maharashtra v. Damu, (2000) 6 SCC 269 against Sushil Murmu v. State of Jharkhand, (2004) 2 SCC 338. In the former, the accused were convicted of murdering three children as human sacrifice for recovering hidden treasure. The Court did not impose the death penalty on them even though it held that "the horrendous acts" made it "an extremely rare case." State of Maharashtra v. Damu, (2000) 6 SCC 269, at para 47. Nevertheless, the Court imposed life imprisonment on the reasoning that the crime was motivated by ignorance and superstition, which were considered to be mitigating circumstances.

As against this, in Sushil Murmu, where the accused was convicted for murdering one child as human sacrifice, the Court held that given the nature of the crime, the accused "was not possessed of the basic humanness and he completely lacks the psyche or mind set which can be amenable for any reformation to be beyond reform." Sushil Murmu v. State of Jharkhand, (2004) 2 SCC 338, at para 22.

Stating that the crime "borders on a crime against humanity indicative of greatest depravity shocking the conscience of not only any right thinking person but of the Courts of law, as well," Sushil Murmu v. State of Jharkhand, (2004) 2 SCC 338, at para 22, the Court refused to consider the superstitious motivation as a mitigating factor. Instead it held that "[n]o amount of superstitious colour can wash away the sin and offence of an unprovoked killing, more so in the case of an innocent and defenceless child." Sushil Murmu v. State of Jharkhand, (2004) 2 SCC 338, at para 22.

For the Court, a case of this sort "is an illustrative and most exemplary case to be treated as the 'rarest of rare cases' in which death sentence is and should be the rule, with no exception whatsoever." Sushil Murmu v. State of Jharkhand, (2004) 2 SCC 338, at para 23. Therefore, in similar circumstances, while in one case the Court found the murder of three children for human sacrifice to not call for the imposition of the death penalty, in another case it found the murder of one child for similar reasons to require the imposition of the death penalty as a rule.

d. Prior Criminal Record of the offender as an Aggravating Factor

5.2.42 While the Court has often taken into account the prior criminal record of the offender in determining whether the person is capable of reform, the Supreme Court in Sangeet and Shankar Khade pointed to instances where the Court had taken into account cases that were merely pending before the courts, and had not been finally decided. B.A. Umesh v. Registrar General, High Court of Karnataka, (2011) 3 SCC 85; Sushil Murmu v. State of Jharkhand, (2004) 2 SCC 338; Shivu v. Registrar General, High Court of Karnataka, (2007) 4 SCC 713.

See also, Gurmukh Singh v. State of Haryana, (2009) 15 SCC 635. Holding that basing the decision to impose the death penalty on such pending cases would amount to a negation of the principle of presumption of innocence, the Supreme Court admitted that these decisions were erroneous. Sangeet v. State of Haryana, (2013) 2 SCC 452.

5.2.43 One such case was Sushil Murmu v. State of Jharkhand, Sushil Murmu v. State of Jharkhand, (2004) 2 SCC 338, where the offence involved murder for the purposes of human sacrifice. In imposing the death sentence, the Court took into account the "[c]riminal propensities of the accused [which] are clearly spelt out from the fact that similar accusations involving human sacrifice existed at the time of trial." Sushil Murmu v. State of Jharkhand, (2004) 2 SCC 338, at para 23.

Though the Court recognized that the result of the accusations against him were not brought on record, and therefore it was not clear whether the accusations resulted in a conviction, the Court held that "the fact that similar accusation was made against the accused-appellant for which he was facing trial cannot also be lost sight of." Sushil Murmu v. State of Jharkhand, (2004) 2 SCC 338, at para 23. On this basis, the Court imposed the death sentence on the accused.

5.2.44 Similarly, in B.A. Umesh v. Registrar General, High Court of Karnataka, B.A. Umesh v. Registrar General, High Court of Karnataka, (2011) 3 SCC 85, where the accused was convicted for rape, murder and robbery, the Supreme Court imposed the death sentence on him, inter alia, on the ground that he had engaged in similar conduct previously, and had been caught two days after the present incident, trying to commit a similar crime.

The Court held that "the antecedents of the appellant and his subsequent conduct indicates that he is a menace to society and is incapable of rehabilitation." B.A. Umesh v. Registrar General, High Court of Karnataka, (2011) 3 SCC 85, at para 84. As noted by the Supreme Court itself in Sangeet, the allegations against Umesh of having committed other offences was never proved or brought on record. Sangeet v. State of Haryana, (2013) 2 SCC 452.

Despite this, a review petition against this decision was dismissed by the Court, again referencing the allegation that "far from showing any remorse, he was caught within two days of the incident by the local public while committing an offence of a similar type in the house of one Seeba." B.A. Umesh v. Registrar General, High Court of Karnataka, Review Petition (Crl.) No (S).135-136 of 2011 in Crl. Appeal Nos.285-286 of 2011.

5.2.45 So while on the one hand, in one line of cases the court has taken into account cases pending (but not decided) against the accused, in another line of cases, which includes Sangeet, as well as Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641, the Court has held that unless a person is proven guilty in a case, it should not be counted as an aggravating factor against him.

e. The Possibility of Reform

5.2.46 In Bachan Singh the Supreme Court required that the death penalty should be imposed only in those exceptional, rarest of rare cases where the "alternative option is unquestionably foreclosed." Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 209. The Supreme Court recognized in Bariyar, that under the Bachan Singh framework, the option of life is "unquestionably foreclosed" and "completely futile, only when the sentencing aim of reformation can be said to be unachievable." Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 66; Mohinder Singh v. State of Punjab, (2013) 3 SCC 294, at para 23.

5.2.47 Bachan Singh relied on the pre-sentence hearing requirement in Section 235(2), Cr. P. C. to provide the information necessary for courts to determine what mitigating circumstances, if any, were present in the case, and what, therefore, the appropriate punishment in the case would be. According to the Court,

Section 235(2) provides for a bifurcated trial and specifically gives the accused person a right of pre-sentence hearing, at which stage, he can bring on record material or evidence, which may not be strictly relevant to or connected with the particular crime under inquiry, but nevertheless, have, consistently with the policy underlined in Section 354(3), a bearing on the choice of sentence.

The present legislative policy discernible from Section 235(2) read with Section 354(3) is that in fixing the degree of punishment or making the choice of sentence for various offences, including one under Section 302, Penal Code, the Court should not confine its consideration principally or merely to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal. Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 209.

See also Allauddin Mian v. State of Bihar, (1989) 3 SCC 5, ("All trial courts, after pronouncing an accused guilty, must adjourn the hearing on quantum of sentence to another day to enable both the convict and the prosecution to present material in support of the quantum of sentence").

5.2.48 Thus, in Bachan Singh, central to the rarest of rare formulation is the assessment of the offender's possibility of reform, which is to be determined through a distinct pre-sentence proceeding where evidence is to be led on the issue.

5.2.49 Drawing upon the Bachan Singh endorsed standard that the state has to lead evidence to show that the convict cannot be reformed or rehabilitated and thus constitutes a continuing threat to society,534 Bariyar held that, "the court will have to provide clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme." Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 66. Such an evidence based account of the possibility of reform was deemed essential by the Court for introducing an element of objectivity into the sentencing process. Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498.

534 In Bachan Singh, the Court endorsed the following standards:

(3) 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.

5.2.50 The requirement that the state should justify, not only through arguments, but through evidence, that the exceptional penalty of death is the only option in the case, has been reiterated by the Court in Shankar Khade. However, Bariyar has rarely been followed, which is itself a testament to the capricious nature of the death penalty jurisprudence in India.

See Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546 at para 46 (listing out cases where no evidence was led on whether the possibility of reformation was "unquestionably foreclosed"). Recently, in Shankar Khade, Anil @ Anthony Arikswamy Joseph v. State of Maharashtra, (2014) 4 SCC 69 and Birju v. State of M.P., (2014) 3 SCC 421 amongst others, the Court has again reiterated the need for evidence based assessment of the possibility of reformation of the offender.

However, as these cases have also noted, "[m]any-a-times, while determining the sentence, the Courts take it for granted, looking into the facts of a particular case, that the accused would be a menace to the society and there is no possibility of reformation and rehabilitation..." Anil @ Anthony Arikswamy Joseph v. State of Maharashtra, (2014) 4 SCC 69, at para 33; Birju v. State of M.P., (2014) 3 SCC 421.

5.2.51 An example is Md. Mannan v. State of Bihar, (2011) 8 S.C.C 65 where the accused was convicted for rape and murder. The Court in this case opined that the accused is "a menace to the society and shall continue to be so and he cannot be reformed." Md. Mannan v. State of Bihar, (2011) 8 S.C.C 65, at para 18. Noticing this case in Sangeet, the Supreme Court noted that the judgement did not indicate any material on the basis of which the Court concluded that the criminal was a menace to society and "shall continue to be so and he cannot be reformed." Sangeet v. State of Haryana, (2013) 2 SCC 452, at para 38.

It appeared that the only factor upon which the Court had based this conclusion was the nature of the crime. However, as noted in Shankar Khade, in otherwise similar facts, the Court has come to differing conclusions on whether the accused was capable of reform.

Therefore, while on the one hand the possibility of reformation or rehabilitation was ruled out, without any expert evidence, in Jai Kumar v. State of Madhya Pradesh, (1999) 5 SCC 1, B.A. Umesh v. Registrar General, High Court of Karnataka., (2011) 3 SCC 85 and Mohd. Mannan v. State of Bihar, (2011) 5 SCC 317, on the other hand, again without any expert evidence, the benefit of this possibility was given in Nirmal Singh v. State of Haryana, (1999) 3 SCC 670, Mohd. Chaman v. State (NCT of Delhi), (2001) 2 SCC 28, Raju v. State of Haryana, (2001) 9 SCC 50, Bantu v. State of M.P., (2001) 9 SCC 615, Surendra Pal Shivbalakpal v. State Gujarat, (2005) 3 SCC 127, Rahul v. State of Maharashtra, (2005) 10 SCC 322 and Amit v. State of Uttar Pradesh, (2012) 4 SCC 107.