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

Review Petition (Crl.) Nos. 159-160 of 2013
Criminal Appeal Nos. 300-301 of 2011
Sundar @ Sundarrajan … Petitioner
State by Inspector of Police … Respondent
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
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
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
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).
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:
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.
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.
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
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”
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
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”
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
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
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).
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
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”
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
(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
(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
(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
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
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
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
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
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
(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:
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
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
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
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
65-B(4) cannot be permitted to be raised at this stage
as the objection relates to the mode or method of
(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
of the fact that the instant matter involves the death sentence having been
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
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
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
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:
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
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
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.
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
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
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
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
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
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
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
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
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
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
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.
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
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
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)
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
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
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)
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
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
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
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
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
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.
96. We dispose of the review petitions in the above terms.
 [Dr Dhananjaya Y Chandrachud]
 [Hima Kohli]
 [Pamidighantam Sri Narasimha]
New Delhi;
March 21, 2023.


Popular posts from this blog

भारतीय संविधान से संबंधित 100 महत्वपूर्ण प्रश्न उतर

100 Questions on Indian Constitution for UPSC 2020 Pre Exam

संविधान की प्रमुख विशेषताओं का उल्लेख | Characteristics of the Constitution of India