Sundar @ Sundarrajan versus State by Inspector of Police

Sundar @ Sundarrajan  versus State by Inspector of Police  

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

1

Reportable

IN THE SUPREME COURT OF INDIA

INHERENT JURISDICTION

Review Petition (Crl.) Nos. 159-160 of 2013

IN

Criminal Appeal Nos. 300-301 of 2011

Sundar @ Sundarrajan … Petitioner

versus

State by Inspector of Police … Respondent

2

J U D G M E N T

Dr Dhananjaya Y Chandrachud, CJI

This judgment consists of the following sections:

A. Prologue – The impact of Mohd. Arif……………….…………………………3

B. Background...................................................................................................8

C. Scope of Review Jurisdiction......................................................................9

D. Error Apparent on the Face of the Record?.............................................10

D.1 Submissions of Counsel.........................................................................10

D.2. Analysis..................................................................................................12

E. Sentencing & Mitigation.............................................................................32

E.1. Lingering Doubt Theory .........................................................................32

E.2. Sentencing & Mitigation in the Trial Court and the Appellate Courts .....34

F. Conclusion ..................................................................................................50

PART A

3

1. The applicant is a convict on death row. He has moved this court for a fresh

look at his petition seeking a review of his conviction for the offence of murder

and the award of the sentence of death. He does so on the basis of the

decision of the Constitution Bench in Mohd. Arif alias Ashfaq v Registrar,

Supreme Court of India1

. In Mohd. Arif, this Court has held that review

petitions arising from conviction and the imposition of the sentence of death

must be heard in open court and cannot be disposed of by circulation. The

Constitution Bench allowed a period of a month from the date of judgment to

petitioners whose applications seeking review of the judgment of this Court

confirming the award of the sentence of death were rejected by circulation,

where the sentence was yet to be executed.

A. Prologue – The impact of Mohd. Arif

2. In Mohd. Arif, this Court took note of the irreversible nature of the death

penalty and of the possibility of two judicial minds reaching differing

conclusions on the question of a case being appropriate for the award of the

death penalty. The judgment of the majority allowed the right to oral hearing

in review for cases involving death penalty:

29. […] death sentence cases are a distinct category of

cases altogether. Quite apart from Article 134 of the

Constitution granting an automatic right of appeal to the

Supreme Court in all death sentence cases, and apart from

death sentence being granted only in the rarest of rare

cases, two factors have impressed us. The first is the

irreversibility of a death penalty. And the second is the

fact that different judicially trained minds can arrive at

conclusions which, on the same facts, can be

diametrically opposed to each other. Adverting first to

the second factor mentioned above, it is well known

1 2014 (9) SCC 737

PART A

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that the basic principle behind returning the verdict of

death sentence is that it has to be awarded in the

rarest of rare cases. There may be aggravating as well

as mitigating circumstances which are to be examined

by the Court. At the same time, it is not possible to lay

down the principles to determine as to which case

would fall in the category of rarest of rare cases,

justifying the death sentence. It is not even easy to

mention precisely the parameters or aggravating/

mitigating circumstances which should be kept in mind

while arriving at such a question. Though attempts are

made by Judges in various cases to state such

circumstances, they remain illustrative only.

30. […] A sentence is a compound of many factors,

including the nature of the offence as well as the

circumstances extenuating or aggravating the offence. A

large number of aggravating circumstances and mitigating

circumstances have been pointed out in Bachan Singh v.

State of Punjab, SCC at pp. 749-50, paras 202 & 206, that

a Judge should take into account when awarding the death

sentence. Again, as pointed out above, apart from the

fact that these lists are only illustrative, as clarified in

Bachan Singh itself, different judicially trained minds

can apply different aggravating and mitigating

circumstances to ultimately arrive at a conclusion, on

considering all relevant factors that the death penalty

may or may not be awarded in any given case.

Experience based on judicial decisions touching upon

this aspect amply demonstrate such a divergent

approach being taken. Though, it is not necessary to

dwell upon this aspect elaborately, at the same time, it

needs to be emphasised that when on the same set of

facts, one judicial mind can come to the conclusion

that the circumstances do not warrant the death

penalty, whereas another may feel it to be a fit case

fully justifying the death penalty, we feel that when a

convict who has suffered the sentence of death and

files a review petition, the necessity of oral hearing in

such a review petition becomes an integral part of

“reasonable procedure”.

(emphasis supplied)

3. A recent study by Project 39A examined all the judgments involving a

sentence of death delivered by the Supreme Court between 2007 and 2021

as part of which it analysed the exercise of the review jurisdiction in capital

PART A

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cases.2 It noted that, during the period covered by the study, before the

decision in Mohd. Arif, 14 review petitions were dismissed by circulation and

the capital punishment was confirmed in all of them. Out of these, 13 were reopened in view of the judgment which resulted in only 4 re-confirmations of

the death penalty. On the other hand, 7 judgments resulted in commutation

of death sentences, 1 in acquittal and 1 case being abated due to the death

of the prisoner. In view of the above data, the impact of the oral hearing of

review petitions, due to the judgment in Mohd. Arif leading to a change in the

outcome of a death penalty confirmation is evident.

4. The Court in Mohd. Arif, however, was not persuaded by the argument of

involving two additional judges beyond the judges who had heard the original

appeal during the hearing of the review petition. It also held that a review must

be ordinarily heard by the same bench which originally heard the criminal

appeal. It had noted that:

39. Henceforth, in all cases in which death sentence has

been awarded by the High Court in appeals pending before

the Supreme Court, only a bench of three Hon'ble Judges

will hear the same. This is for the reason that at least three

judicially trained minds need to apply their minds at the

final stage of the journey of a convict on death row, given

the vagaries of the sentencing procedure outlined above.

At present, we are not persuaded to have a minimum

of 5 learned Judges hear all death sentence cases.

Further, […] a review is ordinarily to be heard only by

the same bench which originally heard the criminal

appeal. This is obviously for the reason that in order

that a review succeeds, errors apparent on the record

have to be found. It is axiomatic that the same learned

Judges alleged to have committed the error be called

upon now to rectify such error. We, therefore, turn

2 Exercise of Review Jurisdiction in Capital Cases in DEATH PENALTY AND THE INDIAN SUPREME COURT

(2007-2021), Project 39A, National Law University Delhi (2022).

PART A

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down [the…] plea that two additional Judges be added

at the review stage in death sentence cases.

(emphasis supplied)

5. The data analysed by Project 39A indicates that it is not merely the oral

hearing of review petitions that has changed the outcomes. There may also

be a correlation between the ultimate outcome changing and different judges

being involved as part of the review process instead of the same judges who

had originally decided the appeal. Post Mohd. Arif, this happens when the

judges who were members of the original bench have demitted office by the

time the open court review comes for hearing. The data involves the 13 review

cases re-opened and re-decided post Mohd. Arif after an oral hearing as well

as 10 fresh review cases which were decided post Mohd. Arif. Out of 13 post

Mohd. Arif cases which were re-opened, we have already noted that only 4

led to re-confirmation of the award of the death penalty, while in 7 cases the

sentence was commuted to life imprisonment, 1 resulted in an acquittal and

1 stood abated. Out of the 10 fresh review cases, in 7 the death sentence was

confirmed while in 3 the sentence was commuted.

6. In the cases where the sentence of death was commuted to life imprisonment,

i.e. 7 cases from the first lot of 13 re-opened review cases and 3 cases from

the second lot of 10 fresh review cases, all of the benches in review were of

a different composition from the bench that decided the appeal. The 1 case

which resulted in acquittal also had a different bench in review from the one

in appeal. On the other hand, in the 11 cases which re-confirmed the death

sentence, 7 benches had a composition of one or all the judges being the

same as the bench that decided the appeal. The report notes that:

PART A

7

The stage of review is rendered almost superfluous for

the purpose envisaged by the majority, i.e., a further

reconsideration of a death sentence, when the same

bench (as in criminal appeal) is called upon to decide

the review petition. This is in fact demonstrated by the

data. As predicted by Justice Chelameswar, when heard

by the same bench as the appeal, review petitions resulted

in the death sentence being maintained. 4 out of 11

confirmation judgments rendered at the stage of

review had the same bench. While the remaining 7

confirmation judgments in review were rendered by

benches of different composition, it is relevant to note

that in 1 of these judgments one judge was common

to both the benches that decided the review and the

appeal, and in yet another, two judges were common

to both benches. On the other hand, all of the 10

judgments that resulted in commutation at the review

stage, were rendered by benches having a different

composition from the bench that decided the appeal.

Therefore, the data suggests that a review petition filed

within 30 days of the judgment rendered in appeal, decided

by the same bench, will not demonstrate considerable

differences in approaches or outcome, unlike those

decided by a different bench.

(emphasis supplied)

7. While the above data is not conclusive and the correlation may not

necessarily equate to causation, we find it appropriate to mention as the

present case is also one of those being re-opened and re-heard as a result of

the decision in Mohd. Arif. We clarify by way of abundant caution that being

both a smaller bench and having not been called upon to consider the impact

of different judges sitting in the review of an appeal confirming the death

sentence, we are not deciding on the merits of the proposition.

PART B

8

B. Background

8. In view of the judgment in Mohd. Arif, the order dated 20 March 2013 in the

present case dismissing the review petition through circulation was recalled

and this review petition was heard in open court.

9. The petitioner was accused of kidnapping and murdering a 7-year-old child.

The petitioner is alleged to have picked up the victim while he was returning

from school in the school van on 27 July 2009. Prosecution witnesses testified

to the petitioner having picked up the victim on his motorbike.

10. Due to the victim’s absence, his mother attempted to find his whereabouts

and was informed of the above sequence of events by one of the witnesses.

Accordingly, she proceeded to register a complaint at Police Station,

Kammapuram on the same date. On the same night, she also received a call

on her mobile phone from the petitioner, demanding a ransom of Rs. 5 lakhs

for the release of the victim. Further, another ransom call was made on the

succeeding day from a telephone booth. One of the witnesses is the individual

who runs the booth and has testified that the petitioner made a call enquiring

regarding the payment of money.

11. On 30 July 2009 the police raided the house of the petitioner and arrested

him along with a co-accused who was later acquitted. The petitioner made

confessional statements on the basis of which three mobile phone sets, two

of which had SIM cards, were recovered. The petitioner confessed to

strangling the deceased, putting his dead body in a gunny bag and throwing

it in the Meerankulam tank. The body of the deceased was recovered from

the tank on the basis of the confessional statement.

PART C

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12. On the basis of the investigation, the petitioner was charged under Sections

364A, 302 and 201 of the Indian Penal Code.

3 The trial was committed to the

Court of the Sessions Judge on 30 July 2010. The Sessions Judge convicted

the petitioner for the offences with which he was charged and sentenced him

to (i) death with a fine of Rs.1000 for the offence under section 364A IPC, (ii)

death with a fine of Rs.1000 for the offence under section 302 IPC; and (ii)

rigorous imprisonment for seven years and a fine of Rs.1000 for the offence

under section 201 IPC. The co-accused was acquitted of all the offences.

13. The petitioner’s appeal was dismissed by the High Court of Judicature at

Madras by a judgment dated 30 September 2010. The High Court confirmed

both the conviction and the award of the death sentence.

14. This Court dismissed the appeal of the petitioner and confirmed the judgment

of the Madras High Court on 5 February 2013. Both the High Court and this

Court entered into a detailed appreciation of facts before confirming the

conviction.

C. Scope of Review Jurisdiction

15. Article 137 of the Constitution states that the Supreme Court has the power

to review any judgment pronounced by it subject to provisions of law made by

the Parliament or any rules under Article 145. The Supreme Court Rules

20134 have been framed under Article 145 of the Constitution. Order XLVII

Rule 1 of the 2013 Rules provides that the Court may review its own judgment

3 “IPC” 4 “2013 Rules”

PART D

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16. or order but no application for review will be entertained in a civil proceeding

except on the ground mentioned in Order XLVII Rule 1 of the Code of Civil

Procedure 1908, and in a criminal proceeding except on the ground of an

error apparent on the face of the record.

17. In Mofil Khan v State of Jharkhand5

, a three judge Bench of this Court while

discussing the scope of the power of review held that:

2. […] Review is not rehearing of the appeal all over again

and to maintain a review petition, it has to be shown that

there has been a miscarriage of justice (See:

Suthendraraja v. State). An error which is not self-evident

and has to be detected by a process of reasoning can

hardly be said to be an error apparent on the face of the

record justifying the Court to exercise its power of review

(See: Kamlesh Verma v. Mayavati). An applicant cannot

be allowed to reargue the appeal in an application for

review on the grounds that were urged at the time of

hearing of the appeal. Even if the applicant succeeds in

establishing that there may be another view possible on

the conviction or sentence of the accused that is not a

sufficient ground for review. This Court shall exercise its

jurisdiction to review only when a glaring omission or

patent mistake has crept in the earlier decision due to

judicial fallibility. There has to be an error apparent on the

face of the record leading to miscarriage of justice.

D. Error Apparent on the Face of the Record?

D.1 Submissions of Counsel

18. We have heard the counsel for the petitioner and for the State of Tamil Nadu.

The counsel for the petitioner has submitted that the following errors are

apparent on the face of the record and call for a review of the judgment

dismissing the appeal:

5 2021 SCC OnLineSC 1136

PART D

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a. There is no proof that the phone number through which the ransom calls

were allegedly made by the petitioner i.e. the number ending with

XXX5961, belongs to the petitioner;

b. That the call detail records show that the above-mentioned number is

registered with one individual with residence in Alathur, Palakkad whom

the petitioner has no connection with;

c. That the 15-digit IMEI number for the cell phone, allegedly belonging to

the petitioner containing the SIM with mobile number ending with

XXX5961, mentioned in the seizure memo differs from the IMEI number

mentioned in the call detail record;

d. There is no evidence that the number on which the ransom call was

allegedly made to PW1 (mother of the deceased), i.e. the number ending

with XXX847, belongs to PW1;

e. PW1 has not stated that calls were made to her on 28 July 2009 and the

testimony of PW16, the operator of the phone booth through which the

call was made, cannot be relied upon; and

f. The certificate under Section 65B of the Indian Evidence Act 18726 for

the call detail records was not furnished.

19. The counsel for the State of Tamil Nadu strongly resisted the submissions

which were urged by the Petitioner. The counsel submitted that the above

grounds do not amount to errors apparent on the face of the record and do

not meet the standard for re-appreciating evidence by this Court in review

6 “IEA”

PART D

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jurisdiction in the face of concurrent findings of the Trial Court, the High Court

and this Court. The counsel also took us through the relevant exhibits and

statements of prosecution witnesses to counter the grounds raised by the

petitioner on merits.

D.2. Analysis

20. We are in agreement with the counsel for the State of Tamil Nadu. The

grounds which have been raised by the petitioner have already been dealt

with by the courts which have arrived at concurrent findings recording the guilt

of the petitioner. Further, the case of the prosecution is not founded only on

the alleged calls for ransom but on consistent interlinked evidence as both the

High Court and Supreme Court found in their judgments.

21. Regardless, we consider it appropriate to deal with the contentions of the

petitioner.

22. The petitioner has alleged that the number through which the ransom call was

allegedly made did not belong to him. However, on the basis of his statement

of 30 July 2009, the cell phone with the SIM for the mobile number ending

with XXX5961 was seized from the petitioner along with 2 other cell phones,

the motorbike on which he had kidnapped the victim as well as the victim’s

school bag.

23. Similarly, the contention based on the difference in the IMEI number recorded

in the seizure memo and the call detail records does not affect the

prosecution’s case for the following reason. The difference in the IMEI number

recorded in the seizure memo and the call detail record pertains to the last

PART D

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digit of the 15-digit IMEI number. Every device has a unique IMEI number

identifying the brand owner in the model. The first 8 digits are the Type

Allocation Code (TAC) digits of which the initial 2 digits identify the reporting

body and the next 6 identify the brand owner and device model allocated by

the reporting body. The next 6 digits are the unique serial number assigned

to individual devices by the manufacturer.7

24. These 14 digits in the petitioner’s case match in both the seizure memo and

the call detail record. The last digit in the IMEI number is the ‘Luhn check digit’

based on a function of the other digits using an algorithm. Technically, the last

digit, which is the only digit that is different in the seizure memo and the call

detail record, can be calculated through the algorithm on the basis of the first

14 digits which are the same in both the documents. As the last digit of an

IMEI number is a function of the first 14 digits, as long as the first 14 digits are

a match, it can only lead to one unique device. Accordingly, it can be

conclusively said that a difference in only the last digit of the IMEI number

cannot imply that it represents the IMEI number of a separate device.

Therefore, the difference in the last digit of the IMEI number can reasonably

be assumed to be a typographical error and does not raise a doubt in the

prosecution’s case.

25. The arguments regarding non-verification of PW1’s number, non-confirmation

with PW1 regarding a call received on the subsequent day as claimed by

PW16 have been raised at a belated stage.

7 GSMA TAC Allocation and IMEI Programming Rules for Device Brand Owners and Manufacturers,

Training Guide (February 2018 v1.0).

PART D

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26. PW8 has stated in her testimony that the petitioner called her to enquire

regarding the phone number of PW1 and she told him to cut the phone and

call again so she can retrieve the number and provide the same, as she did

on the second call. PW1 has also testified that she received the call for

ransom at about 9:30PM. It was upon the petitioner, at the stage of crossexamination of PW1 to raise questions regarding the number ending with

XXX847 belonging to her or regarding the call alleged to have been made by

the petitioner on 28 July 2009 mentioned by PW16.

27. Finally, the petitioner has argued that the CDRs cannot be relied upon due to

the lack of production of the Section 65B certificate. The call detail records

were verified in the testimony of the Legal Officer of Vodafone, PW11, who

himself produced the documents from the computer. He has in his crossexamination specifically corroborated the details of the calls made between

the petitioner and PW1 and PW8 (from whom the number of PW1 was

received after enquiring about it during the call by petitioner). The call detail

records of the mobile number ending with XXX5961 confirm that two calls

were made to PW8 at 9:22PM and 9:25PM on 27 July 2009. Immediately after

this he called on the number ending with XXX847 at 9:39PM. However,

admittedly the certificate mentioned under Section 65B of the IEA was not

produced.

28. Section 65B was inserted in the IEA along with various other amendments by

the Information Technology Act 20008 which took into account digital

evidence. Section 65B provides for the admissibility of electronic records.

8 “IT Act”

PART D

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29. Section 65B of the IEA is reproduced below:

“65-B. Admissibility of electronic records.—(1)

Notwithstanding anything contained in this Act, any

information contained in an electronic record which is

printed on a paper, stored, recorded or copied in optical or

magnetic media produced by a computer (hereinafter

referred to as “the computer output”) shall be deemed to

be also a document, if the conditions mentioned in this

section are satisfied in relation to the information and

computer in question and shall be admissible in any

proceedings, without further proof or production of the

original, as evidence of any contents of the original or of

any fact stated therein of which direct evidence would be

admissible.

(2) The conditions referred to in sub-section (1) in respect

of a computer output shall be the following, namely—

(a) the computer output containing the information was

produced by the computer during the period over which the

computer was used regularly to store or process

information for the purposes of any activities regularly

carried on over that period by the person having lawful

control over the use of the computer;

(b) during the said period, information of the kind contained

in the electronic record or of the kind from which the

information so contained is derived was regularly fed into

the computer in the ordinary course of the said activities;

c) throughout the material part of the said period, the

computer was operating properly or, if not, then in respect

of any period in which it was not operating properly or was

out of operation during that part of the period, was not such

as to affect the electronic record or the accuracy of its

contents; and

(d) the information contained in the electronic record

reproduces or is derived from such information fed into the

computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or

processing information for the purposes of any activities

regularly carried on over that period as mentioned in

clause (a) of sub-section (2) was regularly performed by

computers, whether—

(a) by a combination of computers operating over that

period; or

(b) by different computers operating in succession over

that period; or

(c) by different combinations of computers operating in

succession over that period; or

PART D

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(d) in any other manner involving the successive operation

over that period, in whatever order, of one or more

computers and one or more combinations of computers,

all the computers used for that purpose during that period

shall be treated for the purposes of this section as

constituting a single computer; and references in this

section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a

statement in evidence by virtue of this section, a certificate

doing any of the following things, that is to say—

(a) identifying the electronic record containing the

statement and describing the manner in which it was

produced;

(b) giving such particulars of any device involved in the

production of that electronic record as may be appropriate

for the purpose of showing that the electronic record was

produced by a computer;

(c) dealing with any of the matters to which the conditions

mentioned in sub-section (2) relate,

and purporting to be signed by a person occupying a

responsible official position in relation to the operation of

the relevant device or the management of the relevant

activities (whichever is appropriate) shall be evidence of

any matter stated in the certificate; and for the purposes of

this sub-section it shall be sufficient for a matter to be

stated to the best of the knowledge and belief of the person

stating it.

(5) For the purposes of this section—

(a) information shall be taken to be supplied to a computer

if it is supplied thereto in any appropriate form and whether

it is so supplied directly or (with or without human

intervention) by means of any appropriate equipment;

(b) whether in the course of activities carried on by any

official, information is supplied with a view to its being

stored or processed for the purposes of those activities by

a computer operated otherwise than in the course of those

activities, that information, if duly supplied to that

computer, shall be taken to be supplied to it in the course

of those activities;

(c) a computer output shall be taken to have been

produced by a computer whether it was produced by it

directly or (with or without human intervention) by means

of any appropriate equipment.

Explanation — For the purposes of this section any

reference to information being derived from other

information shall be a reference to its being derived

therefrom by calculation, comparison or any other

process.”

PART D

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30. The petitioner has relied upon the judgment of this court in Arjun Panditrao

Khotkar v Kailash Kushanrao Gorantyal9 which reiterated the dictum in the

decision in Anvar P.V. v P.K. Basheer10 requiring mandatory compliance

with Section 65B of the IEA.

31. One of the earliest decisions on the provision was of a two judge bench of this

Court in State (NCT of Delhi) v Navjot Sandhu11 where the Court held that

Section 65B was only one of the provisions through which secondary

evidence by way of electronic record could be admitted and that there was no

bar on admitting evidence through other provisions. The Court noted that:

150. According to Section 63, “secondary evidence”

means and includes, among other things, ‘copies made

from the original by mechanical processes which in

themselves insure the accuracy of the copy, and copies

compared with such copies’. Section 65 enables

secondary evidence of the contents of a document to be

adduced if the original is of such a nature as not to be

easily movable. It is not in dispute that the information

contained in the call records is stored in huge servers

which cannot be easily moved and produced in the court.

That is what the High Court has also observed at para 276.

Hence, printouts taken from the computers/servers by

mechanical process and certified by a responsible official

of the service-providing company can be led in evidence

through a witness who can identify the signatures of the

certifying officer or otherwise speak of the facts based on

his personal knowledge. Irrespective of the compliance

with the requirements of Section 65-B, which is a

provision dealing with admissibility of electronic

records, there is no bar to adducing secondary

evidence under the other provisions of the Evidence

Act, namely, Sections 63 and 65. It may be that the

certificate containing the details in sub-section (4) of

Section 65-B is not filed in the instant case, but that

does not mean that secondary evidence cannot be

given even if the law permits such evidence to be

9 2020 (7) SCC 1

10 2014 (10) SCC 473

11 2005 (11) SCC 600

PART D

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given in the circumstances mentioned in the relevant

provisions, namely, Sections 63 and 65.

(emphasis supplied)

32. The principle which was enunciated in Navjot Sandhu was overruled by a

three judge bench of this Court in Anvar P.V. where it was held that:

22. The evidence relating to electronic record, as noted

hereinbefore, being a special provision, the general law on

secondary evidence under Section 63 read with Section 65

of the Evidence Act shall yield to the same. Generalia

specialibus non derogant, special law will always prevail

over the general law. It appears, the court omitted to take

note of Sections 59 and 65-A dealing with the admissibility

of electronic record. Sections 63 and 65 have no

application in the case of secondary evidence by way

of electronic record; the same is wholly governed by

Sections 65-A and 65-B. To that extent, the statement

of law on admissibility of secondary evidence

pertaining to electronic record, as stated by this Court

in Navjot Sandhu case, does not lay down the correct

legal position. It requires to be overruled and we do

so. An electronic record by way of secondary evidence

shall not be admitted in evidence unless the

requirements under Section 65-B are satisfied. Thus, in

the case of CD, VCD, chip, etc., the same shall be

accompanied by the certificate in terms of Section 65-B

obtained at the time of taking the document, without which,

the secondary evidence pertaining to that electronic

record, is inadmissible.

(emphasis supplied)

33. Accordingly, in terms of the decision in Anvar P.V. for admitting any electronic

evidence by way of secondary evidence, such as CDRs, the requirements of

Section 65B would necessarily need to be satisfied and no other route under

the IEA may be adopted for the admission of such evidence.

34. However, a three judge bench in Tomaso Bruno v State of Uttar Pradesh12

took a different approach and observed that secondary evidence of the

12 2015 (7) SCC 178

PART D

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contents of a document can also be led under Section 65 of the Evidence Act

without referring to the decision in Anvar P.V. It held that:

24. With the advancement of information technology,

scientific temper in the individual and at the institutional

level is to pervade the methods of investigation. With the

increasing impact of technology in everyday life and as a

result, the production of electronic evidence in cases has

become relevant to establish the guilt of the Accused or

the liability of the Defendant. Electronic documents stricto

sensu are admitted as material evidence. With the

amendment to the Evidence Act in 2000, Sections 65-A

and 65-B were introduced into Chapter V relating to

documentary evidence. Section 65-A provides that

contents of electronic records may be admitted as

evidence if the criteria provided in Section 65-B is complied

with. The computer generated electronic records in

evidence are admissible at a trial if proved in the manner

specified by Section 65-B of the Evidence Act. Sub-section

(1) of Section 65-B makes admissible as a document,

paper printout of electronic records stored in optical or

magnetic media produced by a computer, subject to the

fulfilment of the conditions specified in Sub-section (2) of

Section 65-B. Secondary evidence of contents of

document can also be led Under Section 65 of the

Evidence Act. PW 13 stated that he saw the full video

recording of the fateful night in the CCTV camera, but he

has not recorded the same in the case diary as nothing

substantial to be adduced as evidence was present in it.

(emphasis supplied)

35. A two judge bench in Shafi Mohammed v State of Himachal Pradesh13

strayed even farther away from Anvar P.V. and held that the Sections 65A

and 65B cannot be held to be a complete code on the subject. It held that:

24. We may, however, also refer to the judgment of this

Court in Anvar P.V. v. P.K. Basheer, delivered by a threeJudge Bench. In the said judgment in para 24 it was

observed that electronic evidence by way of primary

evidence was covered by Section 62 of the Evidence Act

to which procedure of Section 65-B of the Evidence Act

was not admissible. However, for the secondary evidence,

procedure of Section 65-B of the Evidence Act was

required to be followed and a contrary view taken in Navjot

13 2018 (2) SCC 801

PART D

20

Sandhu that secondary evidence of electronic record

could be covered under Sections 63 and 65 of the

Evidence Act, was not correct. There are, however,

observations in para 14 to the effect that electronic record

can be proved only as per Section 65-B of the Evidence

Act.

25. Though in view of the three-Judge Bench judgments

in Tomaso Bruno and Ram Singh, it can be safely held

that electronic evidence is admissible and provisions

under Sections 65-A and 65-B of the Evidence Act are

by way of a clarification and are procedural

provisions. If the electronic evidence is authentic and

relevant the same can certainly be admitted subject to

the court being satisfied about its authenticity and

procedure for its admissibility may depend on fact

situation such as whether the person producing such

evidence is in a position to furnish certificate under

Section 65-B(4).

26. Sections 65-A and 65-B of the Evidence Act, 1872

cannot be held to be a complete code on the subject.

In Anvar P.V., this Court in para 24 clarified that primary

evidence of electronic record was not covered under

Sections 65-A and 65-B of the Evidence Act. Primary

evidence is the document produced before the court and

the expression “document” is defined in Section 3 of the

Evidence Act to mean any matter expressed or described

upon any substance by means of letters, figures or marks,

or by more than one of those means, intended to be used,

or which may be used, for the purpose of recording that

matter.

(emphasis supplied)

36. The Court in Shafi Mohammed even diluted the requirement of the Section

65B certificate. This led to contradictory positions in these cases vis-à-vis the

law laid down by Anvar P.V. which was settled by a reference to a three judge

bench of this Court in Arjun Panditrao Khotkar. The Court reiterated Anvar

P.V. and held Tomaso Bruno per incuriam and overruled Shafi Mohammed.

It held that:

73. The reference is thus answered by stating that:

PART D

21

73.1. Anvar P.V., as clarified by us hereinabove, is the

law declared by this Court on Section 65-B of the

Evidence Act. The judgment in Tomaso Bruno, being

per incuriam, does not lay down the law correctly.

Also, the judgment in Shafhi Mohammad and the

judgment dated 3-4-2018 reported as Shafhi

Mohd. v. State of H.P., do not lay down the law

correctly and are therefore overruled.

73.2. The clarification referred to above is that the required

certificate under Section 65-B(4) is unnecessary if the

original document itself is produced. This can be done by

the owner of a laptop computer, computer tablet or even a

mobile phone, by stepping into the witness box and

proving that the device concerned, on which the original

information is first stored, is owned and/or operated by

him. In cases where the “computer” happens to be a

part of a “computer system” or “computer network”

and it becomes impossible to physically bring such

system or network to the court, then the only means

of providing information contained in such electronic

record can be in accordance with Section 65-B(1),

together with the requisite certificate under Section

65-B(4). The last sentence in para 24 in Anvar P.V. which

reads as “… if an electronic record as such is used as

primary evidence under Section 62 of the Evidence Act …”

is thus clarified; it is to be read without the words “under

Section 62 of the Evidence Act,…”. With this clarification,

the law stated in para 24 of Anvar P.V. does not need to

be revisited.

(emphasis supplied)

37. Therefore, the law is now settled: a Section 65B certificate is mandatory in

terms of this Court’s judgment in Anvar P.V. as confirmed in Arjun Panditrao

Khotkar.

38. However, Anvar P.V. was decided on 18 September 2014. Till then, the

interpretation of law in Navjot Sandhu, which was decided on 4 August 2005

prevailed. In the instant case, the Trial Court pronounced its judgment on 30

July 2010. Two months later, on 30 September 2010, the High Court affirmed

the decision of the Trial Court to award the death sentence. This Court

PART D

22

dismissed the appeal and confirmed the death sentence on 5 February 2013.

Even the review petition was dismissed in chambers on 20 March 2013 before

being re-opened in the instant proceeding in view of the Constitution Bench’s

judgment in Mohd. Arif alias Ashfaq.

39. Accordingly, none of the courts had the benefit of the law laid down vis-à-vis

the mandatory requirement of the Section 65B certificate in Anvar P.V.. The

courts as well as the investigative agency proceeded in accordance with the

law that was then prevailing.

40. In Sonu alias Amar v State of Haryana14 this court considered the impact of

the retrospective application of Anvar P.V. upon trials that had already been

held during the period when Navjot Sandhu held the field and observed that:

37. The interpretation of Section 65-B(4) by this Court by

a judgment dated 4-8-2005 in Navjot Sandhu held the field

till it was overruled on 18-9-2014 in Anvar case. All the

criminal courts in this country are bound to follow the law

as interpreted by this Court. Because of the interpretation

of Section 65-B in Navjot Sandhu, there was no necessity

of a certificate for proving electronic records. A large

number of trials have been held during the period between

4-8-2005 and 18-9-2014. Electronic records without a

certificate might have been adduced in evidence. There is

no doubt that the judgment of this Court in Anvar case has

to be retrospective in operation unless the judicial tool of

“prospective overruling” is applied. However, retrospective

application of the judgment is not in the interest of

administration of justice as it would necessitate the

reopening of a large number of criminal cases. Criminal

cases decided on the basis of electronic records adduced

in evidence without certification have to be revisited as and

when objections are taken by the accused at the appellate

stage. Attempts will be made to reopen cases which have

become final.

14 2017 (8) SCC 570

PART D

23

41. However, it did not decide upon this issue being a two judge bench and kept

the question of law open for it to be decided in an appropriate case. In Arjun

Panditrao Khotkar this court did not consider the question raised in Sonu.

42. On the other hand, Sonu did deal with the question of whether, at the

appellate stage, the reliance upon CDRs can be reconsidered if the objection

was not raised during the trial. As the counsel for the State of Tamil Nadu has

argued, the defense as well did not raise the plea of the CDRs being

inadmissible in the absence of a Section 65B certificate at the trial or at the

appellate stage. On this issue, this Court in Sonu noted that:

32. It is nobody's case that CDRs which are a form of

electronic record are not inherently admissible in evidence.

The objection is that they were marked before the trial

court without a certificate as required by Section 65-B(4).

It is clear from the judgments referred to supra that an

objection relating to the mode or method of proof has to be

raised at the time of marking of the document as an exhibit

and not later. The crucial test, as affirmed by this Court, is

whether the defect could have been cured at the stage of

marking the document. Applying this test to the present

case, if an objection was taken to the CDRs being marked

without a certificate, the Court could have given the

prosecution an opportunity to rectify the deficiency. It is

also clear from the above judgments that objections

regarding admissibility of documents which are per se

inadmissible can be taken even at the appellate stage.

Admissibility of a document which is inherently

inadmissible is an issue which can be taken up at the

appellate stage because it is a fundamental issue. The

mode or method of proof is procedural and objections,

if not taken at the trial, cannot be permitted at the

appellate stage. If the objections to the mode of proof

are permitted to be taken at the appellate stage by a

party, the other side does not have an opportunity of

rectifying the deficiencies. The learned Senior Counsel

for the State referred to statements under Section 161

CrPC, 1973 as an example of documents falling under the

said category of inherently inadmissible evidence. CDRs

do not fall in the said category of documents. We are

satisfied that an objection that CDRs are unreliable

due to violation of the procedure prescribed in Section

PART D

24

65-B(4) cannot be permitted to be raised at this stage

as the objection relates to the mode or method of

proof.

(emphasis supplied)

43. While the Court in Arjun Panditrao Khotkar did not directly deal with the

issue of allowing objections against CDRs, due to a violation of the procedure

under Section 65B, being raised at a belated stage, it kept it open for trial

courts, in exceptional cases, to allow the prosecution to provide such

certificate at a later stage. It held that:

54. Therefore, in terms of general procedure, the

prosecution is obligated to supply all documents upon

which reliance may be placed to an Accused before

commencement of the trial. Thus, the exercise of power by

the courts in criminal trials in permitting evidence to be filed

at a later stage should not result in serious or irreversible

prejudice to the Accused. A balancing exercise in respect

of the rights of parties has to be carried out by the court, in

examining any application by the prosecution Under

Sections 91 or 311 of the Code of Criminal Procedure or

Section 165 of the Evidence Act. Depending on the facts

of each case, and the Court exercising discretion after

seeing that the Accused is not prejudiced by want of a

fair trial, the Court may in appropriate cases allow the

prosecution to produce such certificate at a later point

in time. If it is the Accused who desires to produce the

requisite certificate as part of his defence, this again will

depend upon the justice of the case-discretion to be

exercised by the Court in accordance with law.

(emphasis supplied)

44. Therefore, we are inclined to agree with the ratio in Sonu by not allowing the

objection which is raised at a belated stage that the CDRs are inadmissible in

the absence of a Section 65B certificate, especially in cases, where the trial

has been completed before 18 September 2014, i.e. before the

pronouncement of the decision in Anvar P.V.. However, we are also mindful

PART D

25

of the fact that the instant matter involves the death sentence having been

awarded.

45. Most recently, in Mohd. Arif v State (NCT of Delhi)15, a three judge Bench

of this Court while deciding a review petition in a case involving the review of

a death penalty faced a similar fact situation where the decisions of the trial

court and appellate courts were rendered during the period when Navjot

Sandhu was the prevailing law. In that case as well, the Court took note of it

being a matter involving a death sentence and held that:

“24. Navjot Sandhu was decided on 4.8.2005 i.e., before

the judgment was rendered by the Trial Court in the instant

matter. The subsequent judgments of the High Court and

this Court were passed on 13.9.2007 and 10.8.2011

respectively affirming the award of death sentence. These

two judgments were delivered prior to the decision of this

Court in Anvar P.V. which was given on 18.9.2014. The

judgments by the trial Court, High Court and this Court

were thus well before the decision in Anvar P.V. and were

essentially in the backdrop of law laid down in Navjot

Sandhu. If we go by the principle accepted in

paragraph 32 of the decision in Sonu alias Amar, the

matter may stand on a completely different footing. It

is for this reason that reliance has been placed on

certain decisions of this Court to submit that the

matter need not be reopened on issues which were

dealt with in accordance with the law then prevailing.

However, since the instant matter pertains to award of

death sentence, this review petition must be

considered in light of the decisions made by this Court

in Anvar P.V. and Arjun Panditrao.

25. Consequently, we must eschew, for the present

purposes, the electronic evidence in the form of CDRs

which was without any appropriate certificate under

Section 65-B(4) of the Evidence Act.”

(emphasis supplied)

15 2022 SCC OnLineSC 1509

PART D

26

46. Accordingly, we too deem it appropriate to consider this review petition by

eschewing the electronic evidence in the form of CDRs as they are without

the appropriate certificate under Section 65B even if the law, as it was during

the time the trial in the present case was conducted, allowed for such

electronic evidence to be admitted.

47. Accordingly, we analyse the evidence considered by the High Court and this

Court in appeal without relying upon the CDRs. The High Court took note of

the following evidence in its judgment before arriving at the conclusion of the

guilt of the petitioner and confirming his conviction:

18. According to P.W.1 the mother of the deceased child

Suresh, the child used to leave for School every day at

about 8.00 A.M. and come back at about 4.30 P.M., and

on the date of occurrence, i.e., 27.7.2009, the child as

usual went to the school. From the evidence of P.W.6, the

Correspondent of Sakthi Matriculation School,

Vridhachalam, and also the attendance register, Ex.P3, it

would be quite evident that the child attended the school

that day and was returning from the school in the van

meant for that purpose. According to P.W.2, she is also

studying along with the deceased Suresh, and on the day,

both were returning from the school in the van and got

down at Karkudal, and at that time A-1 who was standing

under a Neem tree along with the motorbike, came to them

and told the child Suresh that both his mother and

grandmother were not doing well and on that false reason,

took the child from the place. The evidence of P.W.2 was

much commented by the learned Counsel for the

appellant. But, those contentions cannot be agreed. The

learned trial Judge has categorically pointed out before

recording the evidence that the maturity of the mind of the

child, P.W.2, to give evidence was actually tested and

found satisfactory, and then he recorded the evidence.

The child at the time of occurrence, was 10 years old, and

at the time of giving evidence, it was aged 11.

[…]

19. It would quite clear that if the evidence of a child

witness is cogent and convincing, the Court can accept

that evidence. In the instant case, the evidence of P.W.2

PART D

27

is narrated above. According to P.W.1, immediately when

the child did not return by 4.30 P.M., she entertained

suspicion and went in search of her son, and she

immediately met P.W.2, the other child. P.W.2 informed

P.W.1 that the child Suresh was taken by a person in a

motorbike telling the above reasons. Now, at this juncture,

in order to accept the evidence of P.W.2, the earliest

version as found in Ex. P1, in the considered opinion of the

Court, would suffice. A perusal of Ex. P1, the complaint,

would clearly indicate that after the child did not return,

P.W.1 met P.W.2 Kamali, the other child, and she was

informed by P.W.2 that the child was taken by a person in

a motorbike with the above false reasons. Thus the earliest

version found therein, would clearly indicate that P.W.2

has come with a true version. That apart, the child was

able to identify the motorbike, marked as M.O.5, before the

Court. Despite cross-examination in full, the evidence of

P.W.2 the child remained unshaken. Following the ratio

laid down in the above decision by the Apex Court, this

Court is of the considered opinion that the evidence of

P.W.2 has got to be accepted.

20. Added further, P.W.2 at the time of the identification

parade, was able to identify A-1 properly as could be seen

from the identification parade proceedings Ex. P4. Apart

from that, the evidence of P.W.2 stood fully corroborated

by the evidence of P.W.3. P.W.3 was a native of the same

village, and all these persons were already known to him.

P.W.3 was sufficiently matured and aged 41. According to

him, he was actually coming on the way, and when the

school van was stopped, P.W.2 and the deceased Suresh

got down, and the child was called by A-1, and on some

reason, the child was taken in the bike which was noticed

by him. P.W.3 also took part in the identification parade

and has also identified A-1 properly. Now, the comment

made by the learned Counsel for the appellant that as

regards the identification parade, there were infirmities

noticed cannot be countenanced in law. As far as the

comment made that there was no requisition made by the

Investigating Officer for the test identification parade or the

signature of A-1 was not obtained is concerned, the same

cannot be accepted for the reason that insofar as the

identification parade conducted by P.W.10, it was pursuant

to the orders of the Chief Judicial Magistrate only on the

requisition made by the Investigating Officer; otherwise, it

could not have taken place at all. The conduct of the

identification parade in order to identify A-1 in which P.Ws.

2 and 3 have participated, was never denied by the

appellant before the trial Court. Under the circumstances,

this Court is of the considered opinion that the test

PART D

28

identification parade was properly done, and the trial

Judge was perfectly correct in accepting the evidence

adduced by the prosecution in that regard.

21. Apart from the above, it is pertinent to point out the

legal position in respect of the identification parade. It is

settled proposition of law that the identification parade is

only a corroborative piece of evidence and the

identification done in the Court, is a substantive piece of

evidence. The Court must look into whether at the time

when the witnesses saw the accused in the company of

the deceased, such a thing would have caused a dent in

their memory. In the instant case, the child was only 7

years old, and both the child and P.W.2 Kamali who was

coming along with the child, got down together, and the

appellant/A-1 came there and took the child on the flimsy

reason. In such a situation, naturally the same would have

caused a dent in the memory of P.W.2, and and it would

not fail ordinarily, and equally so the memory of P.W.3, a

man aged about 41. No doubt, it would have caused a dent

in their memory. Therefore, the trial Judge was perfectly

correct in accepting the evidence of P.Ws.2 and 3.

48. From the above, it is clear that two witnesses, PW2 and PW3, saw the

petitioner taking away the victim on his motorbike after he got down from the

school bus while returning. PW2 and PW3 also identified the petitioner upon

his arrest at the time of the test identification parade which was found to have

been properly conducted. Furthermore, both of the witnesses also provided

unimpeachable evidence in their respective cross-examinations before the

trial court. The trial court also followed the proper procedure in taking the

testimony of PW2, a child witness, by recording the maturity of the mind of

the child, who even identified the motorbike before the Court.

49. The aforementioned evidence shows that the victim was last seen with the

petitioner. In the appeal before this Court, the petitioner’s counsel seems to

have acknowledged that there was enough evidence to establish kidnapping,

in view of the following observations:

PART D

29

21. We have considered the first contention advanced by

the learned counsel for the appellant, on the basis of the

contention noticed in the foregoing paragraph. In the

veiled submission advanced in the hands of the

learned counsel for the appellant, we find an implied

acknowledgement, namely, that learned counsel

acknowledges, that the prosecution had placed

sufficient material on the record of the case to

substantiate the factum of kidnapping of the deceased

Suresh, at the hands of the accused-appellant. Be that

as it may, without drawing any such inference, we would

still endeavour to determine, whether the prosecution had

been successful in establishing the factum of kidnapping

of the deceased Suresh, at the hands of the accusedappellant.

(emphasis supplied)

50. This Court in the course of the decision in appeal took note of the evidence

discussed above and held that there was sufficient evidence to hold the

petitioner guilty of murder as well:

“27. Since in the facts and circumstances of this case, it

has been duly established, that Suresh had been

kidnapped by the accused-appellant; the accusedappellant has not been able to produce any material on the

record of this case to show the release of Suresh from his

custody. Section 106 of the Indian Evidence Act, 1872

places the onus on him. In the absence of any such

material produced by the accused-appellant, it has to be

accepted, that the custody of Suresh had remained with

the accused-appellant, till he was murdered. The

motive/reason for the accused-appellant, for taking the

extreme step was, that ransom as demanded by him, had

not been paid. We are therefore, satisfied, that in the facts

and circumstances of the present case, there is sufficient

evidence on the record of this case, on the basis whereof

even the factum of murder of Suresh at the hands of the

accused appellant stands established.

51. Furthermore, as this Court noted, material objects were recovered on the

basis of the petitioner’s statement:

28. We may now refer to some further material on the

record of the case, to substantiate our aforesaid

conclusion. In this behalf, it would be relevant to mention,

that when the accused-appellant was detained on

PART D

30

30.7.2009, he had made a confessional statement in the

presence of Kasinathan (PW13) stating, that he had

strangulated Suresh to death, whereupon his body was put

into a gunny bag and thrown into the Meerankulam tank. It

was thereafter, on the pointing out of the accusedappellant, that the body of Suresh was recovered from the

Meerankulam tank. It was found in a gunny bag, as stated

by the accused-appellant. Dr. Kathirvel (PW12) concluded

after holding the post mortem examination of the dead

body of Suresh, that Suresh had died on account of

suffocation, prior to his having been drowned. The instant

evidence clearly nails the accused-appellant as the

perpetrator of the murder of Suresh. Moreover, the

statement of Kasinathan (PW13) further reveals that the

school bag, books and slate of Suresh were recovered

from the residence of the accused-appellant. These

articles were confirmed by Maheshwari (PW1) as

belonging to Suresh. In view of the factual and legal

position dealt with hereinabove, we have no doubt in our

mind, that the prosecution had produced sufficient material

to establish not only the kidnapping of Suresh, but also his

murder at the hands of the accused-appellant.

52. The evidence in the form of CDRs was merely to corroborate the evidence

that had been given through the depositions of PW1 and PW8. Both of their

testimonies stand corroborated not only through the CDRs but also through

the recovery of the mobile phone on the basis of the confessional statement

of the petitioner. The High Court discussed this evidence in the following para:

[…] At this juncture, P.W.13 has categorically spoken to

the fact that at the time of arrest, A-1 came forward to give

a confessional statement voluntarily, and the same was

recorded by the Investigator. The admissible part is

marked as Ex.P9 pursuant to which he produced three cell

phones out of which it was one which contained the

number through which he made two phone calls to P.W.8

at about 9.22 P.M. and 9.25 P.M. respectively on

27.7.2010, and also at about 9.39 P.M. to P.W.1 making a

demand for ransom. At this juncture, the contentions put

forth by the learned Counsel as to whether one Shankar

who made the calls at 9.22 and 9.25 P.M., was alive or a

fictitious person, and the cellphone recovered from A-1,

did not belong to him even as per the documentary

evidence have got to be rejected since they do not carry

merit. The cellphone from which all the three calls were

made namely two calls to P.W.8 at about 9.22 and 9.25

PART D

31

P.M. in the name of Shankar and one call at 9.39 P.M. by

A-1 to P.W.1, has been recovered, and the particulars of

those calls have been recorded in the cellphone, and it was

actually kept by P.W.8 during the relevant time and also A1 during the relevant time. Thus the prosecution has

brought to the notice of the Court that in Ex.P5, the calls

were actually found for 71 seconds at 9.22 P.M. and 43

seconds at 9.25 P.M. are found in Ex.P5, and another call

which was made is also found therein which was from

M.O.4 cellphone which was recovered from the

appellant/A-1. Out of these three cell phones one cell

phone was with the SIM card and the other two cell phones

without SIM card. Now the documentary evidence

produced by the prosecution would go to show that three

calls were made namely two calls to P.W.8 at 9.22 and

9.25 P.M. respectively and after ascertaining the number

of P.W.1, the third call was made to P.W.1. All the

documentary evidence were placed before the trial Court.

Thus it would be quite clear that the evidence of P.W.8 that

the appellant/A-1 wanted to know the number of P.W.1,

and then he made a call to P.W.8 and came to know about

the number, and thereafter, he made a call at about 9.39

P.M. to P.W.1 as could be found in the evidence of P.W.1.

Even if Ex. P5, being the CDR, is not relied upon by this Court in the above

paragraph, the case of the prosecution is not weakened as it merely

corroborates the documentary evidence and witness testimonies that remain

unblemished regardless. From the above discussion, it is clear that there is

no reason to doubt the guilt of the petitioner.

53. Therefore, even though none of the grounds raised by the petitioner amount

to errors apparent on the face of the record, in view of the above analysis, it

can also be conclusively said that all the grounds on merits fail to raise any

reasonable doubt in the prosecution’s case.

54. Accordingly, we see no reason in the review jurisdiction to interfere with the

concurrent findings of the Trial Court, High Court and this Court vis-à-vis the

guilt of the petitioner for kidnapping and murdering the victim.

PART E

32

55. The counsel for the petitioner has also pressed upon this Court to reconsider

the quantum of the sentence in terms of the capital punishment which has

been ordered by the Trial Court and confirmed in appeal in judgment of the

High Court and this Court.

E. Sentencing & Mitigation

56. The counsel for the petitioner argued at length that the death sentence was

passed without a proper mitigation exercise regarding the circumstances of

the petitioner.

E.1. Lingering Doubt Theory

57. The counsel for the petitioner submitted that the sentence of death cannot be

imposed in such cases where the conviction is based on circumstantial

evidence as a ‘lingering doubt’ regarding the guilt of the accused persists.

58. However, in Shatrughna Baban Meshram v State of Maharashtra16, a three

judge Bench of this Court has ruled out the theory of ‘lingering doubt’/ ‘residual

doubt’. The Court held:

77. When it comes to cases based on circumstantial

evidence in our jurisprudence, the standard that is adopted

in terms of law laid down by this Court as noticed in Sharad

Birdhichand Sarda and subsequent decisions is that the

circumstances must not only be individually proved or

established, but they must form a consistent chain, so

conclusive as to rule out the possibility of any other

hypothesis except the guilt of the accused. On the strength

of these principles, the burden in such cases is already of

a greater magnitude. Once that burden is discharged, it is

implicit that any other hypothesis or the innocence of the

accused, already stands ruled out when the matter is taken

up at the stage of sentence after returning the finding of

16 2021 (1) SCC 596

PART E

33

guilt. So, theoretically the concept or theory of

“residual doubt” does not have any place in a case

based on circumstantial evidence. As a matter of fact,

the theory of residual doubt was never accepted by the US

Supreme Court as discussed earlier.

78. However, as summed up in Kalu Khan, while dealing

with cases based on circumstantial evidence, for

imposition of a death sentence, higher or stricter standard

must be insisted upon. The approach to be adopted in

matters concerning capital punishment, therefore ought to

be in conformity with the principles culled out in para 50

hereinabove and the instant matter must therefore be

considered in the light of those principles.

(emphasis supplied)

59. Accordingly, the argument of residual or lingering doubt does not come to the

rescue of the petitioner. Rather, in the course of the appellate decision in the

instant case, the standard laid out in Sharad Birdhichand Sarda and

subsequent cases was brought to the notice of this Court and it was after

analysing the facts in reference to these principles that the Court upheld the

guilt of the petitioner. This court noted that:

24. Based on the evidence noticed in the three preceding

paragraphs, there can be no doubt whatsoever, that the

accused appellant had been identified through cogent

evidence as the person who had taken away Suresh when

he disembarked from school van on 27.7.2009. The.

factum of kidnapping of Suresh by the accused-appellant,

therefore, stands duly established.

[…]

27. […] We are therefore, satisfied, that in the facts and

circumstances of the present case, there is sufficient

evidence on the record of this case, on the basis whereof

even the factum of murder of Suresh at the hands of the

accused-appellant stands established.

60. This Court has already applied the relevant standard to confirm the guilt of

the petitioner in the appeal in a case which is based on circumstantial

PART E

34

evidence and it will not be appropriate for this Court to once again venture

into an assessment of the evidence in the review jurisdiction in view of its

limited scope.

E.2. Sentencing & Mitigation in the Trial Court and the Appellate Courts

61. Counsel for the petitioner argued that even if the petitioner’s guilt was

affirmed, the trial court and appellate courts failed to appropriately consider

relevant aggravating and mitigating circumstances including the possibility of

reformation of the petitioner while deciding upon the sentence. Counsel urged

that the petitioner should not have been awarded the death sentence and it

ought to be commuted in view of the failure of the courts to conduct an

appropriate mitigation exercise.

62. In a line of precedent of this Court, there has been a discussion on whether a

separate hearing on the issue of sentence is mandatory after recording the

conviction of an accused for an offence punishable by death. Section 235 of

the Code of Criminal Procedure 197317 states thus:

235. Judgment of acquittal or conviction.—

(1) After hearing arguments and points of law (if any), the

Judge shall give a judgment in the case.

(2) 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.

63. In Santa Singh v State of Punjab18, a two judge Bench of this Court

highlighted the requirement of having a separate sentencing hearing in view

17 “CrPC” 18 1976 (4) SCC 190

PART E

35

of Section 235(2) of the CrPC and noted that the stage of sentencing was as

important a stage in the process of administering criminal justice as the

adjudication of guilt.

64. The judgment of the majority in the Constitution Bench decision in Bachan

Singh v State of Punjab19 reiterated the importance of a sentencing hearing.

The Court noted that:

151. Section 354(3) of the CrPC, 1973, marks a significant

shift in the legislative policy underlying the Code of 1898,

as in force immediately before April 1, 1974, according to

which both the alternative sentences of death or

imprisonment for life provided for murder and for certain

other capital offences under the Penal Code, were normal

sentences. Now according to this changed legislative

policy which is patent on the face of Section 354(3), the

normal punishment for murder and six other capital

offences under the Penal Code, is imprisonment for life (or

imprisonment for a term of years) and death penalty is an

exception.

[…]

152. In the context, we may also notice Section 235(2) of

the Code of 1973, because it makes not only explicit, what

according to the decision in Jagmohan's case was implicit

in the scheme of the Code, but also bifurcates the trial

by providing for two hearings, one at the preconviction stage and another at the pre-sentence

stage.

[…]

163. […] Now, 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

19 1980 (2) SCC 684

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36

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 particular

crime, but also give due consideration to the

circumstances of the criminal.

(emphasis supplied)

65. This requirement of a separate hearing was reiterated in Muniappan v State

of Tamil Nadu20 where the Court noted the importance of complying with the

provision for a separate hearing on sentencing not merely as a formality but

in spirit and substance by making a genuine effort to enquire into information

that may have a bearing on the question of sentence.

66. In Allauddin Mian v State of Bihar21, a two judge Bench of this Court held

that a sentencing hearing is required to satisfy the rules of natural justice; that

it is mandatory and is not a mere formality. The Court noted:

10. …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 prosecution evidence on

the question of guilt should, on being found guilty, be

asked if he has anything to say or any evidence to tender

on the 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 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 sentence

there can be no doubt that the provision is salutary

20 1981 (3) SCC 11

21 1989 (3) SCC 5

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37

and must be strictly followed. It is clearly mandatory

and should not be treated as a mere formality.

[…]

In a case of life or death as stated earlier, the presiding

officer must show a high degree of 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 circumstances, etc., before the

court, the court's decision on the sentence would be

vulnerable. We need hardly mention that in many cases

a sentencing decision has far more serious

consequences on the offender and his family

members than in the case of a purely administrative

decision; a fortiori, therefore, the principle of fair play

must apply with greater vigour in the case of the

former than the latter. An administrative decision

having civil consequences, if taken 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

subsection (2) of Section 235 of the Code in letter and

spirit 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 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 the offender.

(emphasis supplied)

67. The importance of a separate sentencing hearing being afforded to the

accused after recording a conviction was reiterated in Anguswamy v State

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38

of Tamil Nadu22, Malkiat Singh v State of Punjab23 and Dattaraya v State

of Maharashtra24.

68. On the other hand, there have also been judgments of this Court where it was

held that while the court may adjourn for a separate hearing, same-day

sentencing did not violate the provisions of Section 235(2) of the CrPC and

did not in itself vitiate the sentence. This reasoning was adopted in the

judgments of this Court in Dagdu v State of Maharashtra25, Tarlok

Singh v State of Punjab26 and Ramdeo Chauhan v State of Assam27

69. In Suo Motu W.P. (Crl.) No. 1/2022 titled In re: Framing Guidelines

Regarding Potential Mitigating Circumstances to be Considered while

Imposing Death Sentences, this Court took note of the difference in

approach in the interpretation of Section 235(2) of CrPC and referred the

question for consideration of a larger bench. While it took note of the conflict

on what amounted to ‘sufficient time’ at the trial court stage to allow for a

separate and effective sentencing hearing, it noted that all the decisions also

had the following common ground:

27. The common thread that runs through all these

decisions is the express acknowledgment that meaningful,

real and effective hearing must be afforded to the

accused, with the opportunity to adduce material relevant

for the question of sentencing.

22 1989 (3) SCC 33

23 1991 (4) SCC 341

24 2020 (14) SCC 290

25 1977 (3) SCC 68

26 1977 (3) SCC 218

27 2001 (5) SCC 714

PART E

39

70. In the present case, the judgment of the Trial Court dealing with sentencing

indicates that a meaningful, real and effective hearing was not afforded to the

petitioner.

71. The Trial Court did not conduct any separate hearing on sentencing and did

not take into account any mitigating circumstances pertaining to the petitioner

before awarding the death penalty. In the course of its judgment, the trial court

merely noted the following, before awarding the death penalty:

In present day circumstances it has become common of

kidnapping of children and elders for ransom and

kidnapped being murdered if expected ransom is not

received. In this situation unless the kidnappers for ransom

are punished with extreme penalty, in future kidnapping of

children and elders for ransom would get increased and

the danger of society getting totally spoiled, would have to

faced is of no doubt. Hence having regard to all these it is

decided that it would be in the interests of justice to award

to the 1st accused the extreme penalty. Not only that the

court saw the mother of the deceased boy profusely crying

and weeping in court over the death of her son in court and

the scene of onlookers in court having wept also cannot be

forgotten by anyone. Hence it is decided that such

offenders have to be punished with extreme penalty; in the

interests of justice.

72. The High Court took into account the gruesome and merciless nature of the

act. It reiterated the precedents stating that the death penalty is to be awarded

only in the rarest of rare cases. However, it did not specifically look at any

mitigating circumstances bearing on the petitioner. It merely held that:

28. In a given case like this, it is an inhuman and a

merciless act of gruesome murder which would shock the

conscience of the society. Under the circumstance,

showing mercy or leniency to such accused would be

misplacing the mercy. That apart, showing leniency would

be mockery on the criminal system. Therefore, the death

penalty imposed by the trial Judge, has got to be affirmed,

and accordingly, it is affirmed.

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40

73. This Court examined the aggravating circumstances of the crime in detail.

However, as regards the mitigating circumstances, it noted that:

31. As against the aforesaid aggravating circumstances,

learned counsel for the accused-appellant could not point

to us even a single mitigating circumstance. Thus viewed,

even on the parameters laid down by this Court, in the

decisions relied upon by the learned counsel for the

accused-appellant, we have no choice, but to affirm the

death penalty imposed upon the accused appellant by the

High Court. In fact, we have to record the aforesaid

conclusion in view of the judgment rendered by this Court

in Vikram Singh & Ors. Vs. State of Punjab, (2010) 3 SCC

56, wherein in the like circumstances (certainly, the

circumstances herein are much graver than the ones in the

said case), this Court had upheld the death penalty

awarded by the High Court.

74. The above sequence indicates that no mitigating circumstances of the

petitioner were taken into account at any stage of the trial or the appellate

process even though the petitioner was sentenced to capital punishment.

75. In terms of the aggravating circumstances that were taken note of by this

Court in appeal, our attention has been drawn to the following circumstance:

30. […]

(vii) The choice of kidnapping the particular child for

ransom, was well planned and consciously motivated. The

parents of the deceased had four children – three

daughters and one son. Kidnapping the only male child

was to induce maximum fear in the mind of his parents.

Purposefully killing the sole male child, has grave

repercussions for the parents of the deceased. Agony for

parents for the loss of their only male child, who would

have carried further the family lineage, and is expected to

see them through their old age, is unfathomable. Extreme

misery caused to the aggrieved party, certainly adds to the

aggravating circumstances.

We wish to note that the sex of the child cannot be in itself considered as an

aggravating circumstance by a constitutional court. The murder of a young

PART E

41

child is unquestionably a grievous crime and the young age of such a victim

as well as the trauma that it causes for the entire family is in itself,

undoubtedly, an aggravating circumstance. In such a circumstance, it does

not and should not matter for a constitutional court whether the young child

was a male child or a female child. The murder remains equally tragic. Courts

should also not indulge in furthering the notion that only a male child furthers

family lineage or is able to assist the parents in old age. Such remarks

involuntarily further patriarchal value judgements that courts should avoid

regardless of the context.

76. In Rajendra Pralhadrao Wasnik v State of Maharashtra28, a three judge

bench of this Court took note of the line of cases of this Court which underline

the importance of considering the probability of reform and rehabilitation of

the convicted accused before sentencing him to death. The court observed:

43. At this stage, we must hark back to Bachan Singh and

differentiate between possibility, probability and

impossibility of reform and rehabilitation. Bachan

Singh requires us to consider the probability of reform and

rehabilitation and not its possibility or its impossibility.

[…]

45. The law laid down by various decisions of this Court

clearly and unequivocally mandates that the probability

(not possibility or improbability or impossibility) that a

convict can be reformed and rehabilitated in society must

be seriously and earnestly considered by the courts before

awarding the death sentence. This is one of the mandates

of the “special reasons” requirement of Section 354(3)

CrPC and ought not to be taken lightly since it involves

snuffing out the life of a person. To effectuate this

mandate, it is the obligation on the prosecution to

prove to the court, through evidence, that the

probability is that the convict cannot be reformed or

28 2019 (12) SCC 460

PART E

42

rehabilitated. This can be achieved by bringing on record,

inter alia, material about his conduct in jail, his conduct

outside jail if he has been on bail for some time, medical

evidence about his mental make-up, contact with his family

and so on. Similarly, the convict can produce evidence on

these issues as well.

46. If an inquiry of this nature is to be conducted, as is

mandated by the decisions of this Court, it is quite obvious

that the period between the date of conviction and the date

of awarding sentence would be quite prolonged to enable

the parties to gather and lead evidence which could assist

the trial court in taking an informed decision on the

sentence. But, there is no hurry in this regard, since in any

case the convict will be in custody for a fairly long time

serving out at least a life sentence.

47. Consideration of the reformation, rehabilitation

and reintegration of the convict into society cannot be

overemphasised. Until Bachan Singh, the emphasis

given by the courts was primarily on the nature of the

crime, its brutality and severity. Bachan Singh placed

the sentencing process into perspective and

introduced the necessity of considering the

reformation or rehabilitation of the convict. Despite the

view expressed by the Constitution Bench, there have

been several instances, some of which have been pointed

out in Bariyar and in Sangeet v. State of Haryana where

there is a tendency to give primacy to the crime and

consider the criminal in a somewhat secondary manner.

As observed in Sangeet “In the sentencing process, both

the crime and the criminal are equally important.”

Therefore, we should not forget that the criminal,

however ruthless he might be, is nevertheless a

human being and is entitled to a life of dignity

notwithstanding his crime. Therefore, it is for the

prosecution and the courts to determine whether such

a person, notwithstanding his crime, can be reformed

and rehabilitated. To obtain and analyse this

information is certainly not an easy task but must

nevertheless be undertaken. The process of

rehabilitation is also not a simple one since it involves

social reintegration of the convict into society. Of course,

notwithstanding any information made available and its

analysis by experts coupled with the evidence on record,

there could be instances where the social reintegration of

the convict may not be possible. If that should happen, the

option of a long duration of imprisonment is permissible.

(emphasis supplied)

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43

77. The law laid down in Bachan Singh requires meeting the standard of ‘rarest

of rare’ for award of the death penalty which requires the Courts to conclude

that the convict is not fit for any kind of reformatory and rehabilitation scheme.

As noted in Santosh Kumar Satishbhushan Bariyar v State of

Maharashtra29, this requires looking beyond the crime at the criminal as well:

66. The rarest of rare dictum, as discussed above, hints at

this difference between death punishment and the

alternative punishment of life imprisonment. The relevant

question here would be to determine whether life

imprisonment as a punishment will be pointless and

completely devoid of reason in the facts and

circumstances of the case? As discussed above, life

imprisonment can be said to be completely futile, only

when the sentencing aim of reformation can be said to

be unachievable. Therefore, for satisfying the second

exception to the rarest of rare doctrine, the court will

have to provide clear evidence as to why the convict

is not fit for any kind of reformatory and rehabilitation

scheme. This analysis can only be done with rigour

when the court focuses on the circumstances relating

to the criminal, along with other circumstances. This is

not an easy conclusion to be deciphered, but Bachan

Singh sets the bar very high by introduction of the rarest of

rare doctrine.

(emphasis supplied)

78. A similar point was underlined by this Court in Anil v State of Maharashtra30

where the Court noted that:

33. In Bachan Singh this Court has categorically stated,

‘the probability that the accused would not commit criminal

acts of violence as would constitute a continuing threat to

the society’, is a relevant circumstance, that must be given

great weight in the determination of sentence. This was

further expressed in Santosh Kumar Satishbhushan

Bariyar. Many 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, while it is the duty of the court to

29 2009 (6) SCC 498

30 2014 (4) SCC 69

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44

ascertain those factors, and the State is obliged to

furnish materials for and against the possibility of

reformation and rehabilitation of the accused. The

facts, which the courts deal with, in a given case,

cannot be the foundation for reaching such a

conclusion, which, as already stated, calls for

additional materials. We, therefore, direct that the

criminal courts, while dealing with the offences like Section

302 IPC, after conviction, may, in appropriate cases, call

for a report to determine, whether the accused could be

reformed or rehabilitated, which depends upon the facts

and circumstances of each case.

(emphasis supplied)

79. No such inquiry has been conducted for enabling a consideration of the

factors mentioned above in case of the petitioner. Neither the trial court, nor

the appellate courts have looked into any factors to conclusively state that the

petitioner cannot be reformed or rehabilitated. In the present case, the Courts

have reiterated the gruesome nature of crime to award the death penalty. In

appeal, this Court merely noted that the counsel for the petitioner could not

point towards mitigating circumstances and upheld the death penalty. The

state must equally place all material and circumstances on the record bearing

on the probability of reform. Many such materials and aspects are within the

knowledge of the state which has had custody of the accused both before and

after the conviction. Moreover, the court cannot be an indifferent by-stander

in the process. The process and powers of the court may be utilised to ensure

that such material is made available to it to form a just sentencing decision

bearing on the probability of reform.

80. In Mofil Khan, a three judge bench of this Court was also dealing with a

review petition which was re-opened in view of the decision in Mohd. Arif v

Registrar, Supreme Court of India. While commuting the death sentence to

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45

life imprisonment, the Court reiterated the importance of looking at the

possibility of reformation and rehabilitation. Notably, it pointed out that it was

the Court’s duty to look into possible mitigating circumstances even if the

accused was silent. The Court held that:

9. It would be profitable to refer to a judgment of this Court

in Mohd. Mannan v. State of Bihar in which it was held that

before imposing the extreme penalty of death sentence,

the Court should satisfy itself that death sentence is

imperative, as otherwise the convict would be a threat to

the society, and that there is no possibility of reform or

rehabilitation of the convict, after giving the convict an

effective, meaningful, real opportunity of hearing on the

question of sentence, by producing material. The hearing

of sentence should be effective and even if the

accused remains silent, the Court would be obliged

and duty-bound to elicit relevant factors.

10. It is well-settled law that the possibility of

reformation and rehabilitation of the convict is an

important factor which has to be taken into account as

a mitigating circumstance before sentencing him to

death. There is a bounden duty cast on the Courts to

elicit information of all the relevant factors and

consider those regarding the possibility of

reformation, even if the accused remains silent. A

scrutiny of the judgments of the trial court, the High Court

and this Court would indicate that the sentence of death is

imposed by taking into account the brutality of the crime.

There is no reference to the possibility of reformation of the

Petitioners, nor has the State procured any evidence to

prove that there is no such possibility with respect to the

Petitioners. We have examined the socio-economic

background of the Petitioners, the absence of any criminal

antecedents, affidavits filed by their family and community

members with whom they continue to share emotional ties

and the certificate issued by the Jail Superintendent on

their conduct during their long incarceration of 14 years.

Considering all of the above, it cannot be said that there is

no possibility of reformation of the Petitioners, foreclosing

the alternative option of a lesser sentence and making the

imposition of death sentence imperative.

(emphasis supplied)

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46

81. The duty of the court to enquire into mitigating circumstances as well as to

foreclose the possibility of reformation and rehabilitation before imposing the

death penalty has been highlighted in multiple judgments of this Court.

Despite this, in the present case, no such enquiry was conducted and the

grievous nature of the crime was the only factor that was considered while

awarding the death penalty.

82. During the course of the hearing of the review petition, this court had passed

an order directing the counsel for the state to get instructions from jail

authorities on the following aspects: (i) the conduct of the petitioner in jail; (ii)

information on petitioner’s involvement in any other case; (iii) details of the

petitioner acquiring education in jail; (iv) details of petitioner’s medical

records; and (v) any other relevant information.

83. Through an affidavit dated 26 September 2021, the Sub-Inspector of Police

Kammapuram at Cuddalore District, Tamil Nadu has informed the court that

the conduct of petitioner has been satisfactory and he has not been involved

in any other case. Furthermore, he is suffering from systemic hypertension

and availing medication from the prison hospital. The petitioner has also

acquired a diploma in food catering during his time in the prison.

84. Separately, this Court also received a document dated 8 November 2018 from

the Superintendent of Prisons, Central Prison, Cuddalore-4 in response to the

letter from Assistant Registrar, Supreme Court of India communicating the

order seeking instructions from jail authorities. Notably, this document states

that the petitioner tried to escape from prison on 6 November 2013. It is

PART E

47

concerning that the Respondent, in the affidavit dated 26 September 2021,

has failed to include this information.

85. The non-disclosure of material facts amounts to misleading this Court and to

an attempt at interfering with the administration of justice. In the Suo Motu

Contempt Petition (Civil) No 3 of 2021 titled In Re: Perry Kansagra, this Court

discussed the line of precedent of this Court dealing with tendering of

affidavits and undertakings containing false statements or suppressing /

concealing material facts amounting to contempt of court:

15. It is thus well settled that a person who makes a false

statement before the Court and makes an attempt to

deceive the Court, interferes with the administration of

justice and is guilty of contempt of Court. The extracted

portion above clearly shows that in such circumstances,

the Court not only has the inherent power but it would be

failing in its duty if the alleged contemnor is not dealt with

in contempt jurisdiction for abusing the process of the

Court.

Accordingly, we deem it appropriate to initiate suo moto contempt

proceedings against the respondent for withholding material information from

this Court.

86. As per the written submissions of the petitioner, he was about 24 years old

when the judgment of the Trial Court was rendered on 30 July 2010. He has

been in prison since 2009, 13 years. He had no prior antecedents and the jail

authorities have stated that he has not been involved in any other case.

However, the jail authorities have brought to the notice of this Court, the

attempt of petitioner to escape from prison.

87. In the review petition, it has also been submitted that the petitioner could not

communicate mitigating circumstances bearing on his sentencing decision to

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48

the lawyer and his relatives, who being poor and uneducated, could not

properly contest the case for him. The fact remains that no mitigating

circumstances were placed before any of the appellate courts.

88. On the basis of these details, it cannot be said that there is no possibility of

reformation even though the petitioner has committed a ghastly crime. We

must consider several mitigating factors: the petitioner has no prior

antecedents, was 23 years old when he committed the crime and has been

in prison since 2009 where his conduct has been satisfactory, except for the

attempt to escape prison in 2013. The petitioner is suffering from a case of

systemic hypertension and has attempted to acquire some basic education in

the form of a diploma in food catering. The acquisition of a vocation in jail has

an important bearing on his ability to lead a gainful life.

89. Considering the above factors, we are of the view that even though the crime

committed by the petitioner is unquestionably grave and unpardonable, it is

not appropriate to affirm the death sentence that was awarded to him. As we

have discussed, the ‘rarest of rare’ doctrine requires that the death sentence

not be imposed only by taking into account the grave nature of crime but only

if there is no possibility of reformation in a criminal.

90. However, we are also aware that a sentence of life imprisonment is subject

to remission. In our opinion, this would not be adequate in view of the

gruesome crime committed by the petitioner.

91. This court has been faced with similar situations earlier where it has noticed

that the sentence of life imprisonment with remission may be inadequate in

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49

certain cases. For instance, in Swamy Shraddananda (2) @ Murali

Manohar Mishra v State of Karnataka31 the Court noted that:

92. The matter may be looked at from a slightly different

angle. The issue of sentencing has two aspects. A

sentence may be excessive and unduly harsh or it may be

highly disproportionately inadequate. When an appellant

comes to this Court carrying a death sentence awarded by

the trial court and confirmed by the High Court, this Court

may find, as in the present appeal, that the case just falls

short of the rarest of the rare category and may feel

somewhat reluctant in endorsing the death sentence. But

at the same time, having regard to the nature of the

crime, the Court may strongly feel that a sentence of

life imprisonment subject to remission normally works

out to a term of 14 years would be grossly

disproportionate and inadequate. What then should the

Court do? If the Court’s option is limited only to two

punishments, one a sentence of imprisonment, for all

intents and purposes, of not more than 14 years and

the other death, the Court may feel tempted and find

itself nudged into endorsing the death penalty. Such a

course would indeed be disastrous. A far more just,

reasonable and proper course would be to expand the

options and to take over what, as a matter of fact,

lawfully belongs to the Court i.e. the vast hiatus

between 14 years’ imprisonment and death. It needs to

be emphasised that the Court would take recourse to the

expanded option primarily because in the facts of the case,

the sentence of 14 year’s imprisonment would amount to

no punishment at all.

(emphasis supplied)

92. Accordingly, it is open to this Court to prescribe the length of imprisonment,

especially in cases where the capital punishment is replaced by life

imprisonment. Considering the facts of the instant case, we are of the

31 2008 (13) SCC 767

PART F

50

considered view that the petitioner must undergo life imprisonment for not

less than twenty years without remission of sentence.

F. Conclusion

93. For the reasons discussed above, we see no reason to doubt the guilt of the

petitioner in kidnapping and murdering the victim. The exercise of the

jurisdiction in review to interfere with the conviction is not warranted.

However, we do take note of the arguments regarding the sentencing hearing

not having been conducted separately in the Trial Court and mitigating

circumstances having not been considered in the appellate courts before

awarding the capital punishment to the petitioner. While weighing this

argument, the gruesome nature of the crime of murder of a young child of

merely 7 years of age has also weighed upon us and we do not find that a

sentence of life imprisonment, which normally works out to a term of 14 years,

would be proportionate in the circumstances.

94. Accordingly, we commute the death sentence imposed upon the petitioner to

life imprisonment for not less than twenty years without reprieve or remission.

95. Separately, a notice is required to be issued to the Inspector of Police,

Kammapuram Police Station, Cuddalore District, State of Tamil Nadu to offer

an explanation as to why action should not be taken for the filing of the

affidavit dated 26 September 2021. In this case, prima facie, material

information regarding the conduct of the petitioner in the prison was

concealed from this Court. Accordingly, the Registry is directed to register the

matter as a suo motu proceeding for contempt of court.

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96. We dispose of the review petitions in the above terms.

…..…..…....…........……………….…......CJI

 [Dr Dhananjaya Y Chandrachud]

…..…..…....…........……………….…........J.

 [Hima Kohli]

…..…..…....…........……………….…........J.

 [Pamidighantam Sri Narasimha]

New Delhi;

March 21, 2023.