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[2012] 7 S.C.R.359 STATE OF U.P. v. SANJAY KUMAR (SLP(Crl.) No. 6467 of 2012) AUGUST 21, 2012 [DR. B.S.CHAUHAN AND SWATANTER KUMAR, JJ.] PENAL CODE,1860: A B ss. 302 and 376-Rapeand murder of an eighteenyear c old girl -Deathsentence-Commutedby HighCourt to life imprisonment-Held:High Courtis correct to the extentthat thefacts of thecasedid notwarrantdeath sentence. SENTENCE/SENTENCING: Sentencing policy - Principle of proportionality - Aggravatingand mitigatingcircumstances-Commutation of deathsentence to imprisonmentfor fife or imprisonmentfor a specified term -Clemencypower of Sovereign-Expression D "life imprisonment"-Connotation of -Discussed-Constitution E of India, 1950 -Arts. 142, 72 and 161 - Separation of powers - Code of CriminalProcedure, 1973 -s.433, 433-A. NeelKumar @ Anil Kumar v. State of Haryana, (2012) 5 SCC 766; and Sandeep v. State of UP. (2012)6 SCC 107; Ramraj v. State of Chhattisgarh 2009 (16) SCR 367 = AIR 2010 SC 420; Mui/a & Anr. v. State of UttarPradesh, 2010 F (2) SCR 633 =AIR2010 SC 942; and Rameshbhai ChandubhaiRathod v. State of Gujarat 2011 (1) SCR 829 =AIR 2011 SC 803; Swamy Shraddananda @ Murali ManoharMishra v. State of Karnataka, 2008 (11) SCR 93 G =AIR 2008 SC 3040; His HolinessKesavanandaBharati Sripadagalvaru v. State of Kera/a & Anr., 1973 Suppl.SCR 1 =AIR 1973 SC 1461; Smt. Indira NehruGandhi v. Shri Raj 359 H 360 SUPREME COURT REPORTS [2012] 7 S.C.R. A Narain and Anr. 1976 SCR 347 =AIR 1975 SC 2299;and State of West Bengal & Ors. v. The Committeefor Protection of DemocraticRights, West Bengaland Ors. 2010 (2) SCR 979 =AIR 2010 SC 1476; JayawantDattatrayaSuryarao v. State of Maharashtra 2001 (5) Suppl. SCR 54 = (2001) 10 B SCC 109; ManishGoel v. Rohini Goel, 2010 (2) SCR 414 = AIR2010 SC 1099; State of Haryana v. Jagdish 2010 (3) SCR 716= AIR2010 SC 1690; Sevaka Perumal etc.v. State of Tamil Nadu 1991 (2) SCR 711 = AIR 1991 SC 1463; Ravjiv. State of Rajasthan1995 (6) Suppl. SCR 195 =AIR c 1996 SC 787; State of MadhyaPradesh v. Ghanshyam Singh 2003 (3) Suppl. SCR 618 = AIR2003SC 3191; DhananjayChatterjee alias Dhana v. State of WB. AIR 2004 SC 3454; RajendraPralhadraoWasnik v. The State of Maharashtra, AIR 2012 SC 1377;and Brajendra Singh v. 0 State of MadhyaPradesh, AIR 2012 SC 1552-referredto. Exp. Grossman, (1924) 69 Led. 527 -referredto. CaseLaw Reference: E (2012)5 sec 766 referred to para 5 (2012)6 sec 101 referred to para 5 2009 (16) SCR 367 referred to para 6 2010 (2) SCR 633 referred to para 6 F 2011 (1) SCR 829 referred to para 6 2008 (11) SCR 93 referred to para8 1973 Suppl.SCR 1 referred to para 10 G 1976 SCR 347 referred to para 10 2010 (2) SCR 979referred to para 10 2001 (5) Suppl. SCR 54 referredto para 11 H 2010 (2) SCR 414 referred to para 12 STATE OF U.P. v. SANJAYKUMAR 361 (1924)69 Led. 527 referred to para 13 2010 (3) SCR 716referred to para 14 1991(2) SCR 711 referred to para 15 1995(6) Suppl. SCR 195 referred to para15 2003 (3) Suppl. SCR 618 referred to para 15 2004AIR 3454referred to para 15 2012 AIR 1377referred to para 15 2012 AIR 1552referred to para 15 CRIMINAL APPELLATEJURISDICTION:Special Leave Petition (Crl.) No. 6467 of 2012. Fromthe Judgment& Order dated 22.02.2012 of theHigh Court of Allahabad in CriminalAppeal (Capital Case) No. 7760 of 2009. Vivek Vishnoi,Gaurav Agarwal (for M.R.Shamshad)for thePetitioner. Theorder of the Courtwas delivered ORDER 1. Delay condoned. 2. This petition has been filed against theimpugned judgmentand Order dated 8.2.2012passed by theHighCourt of Judicatureat Allahabad in Criminal Appeal (Capital Case)A B c DE F No. 7760 of 2009, bywhichthe HighCourthas commutedthe deathsentenceawarded to therespondentby theSessionsG Court, in life imprisonmentupon recordingits conclusionthat it wasnot amongthe 'rarest of rarecases', in whichdeath penalty could beawarded. H 362 SUPREME COURT REPORTS [2012] 7 S.C.R. A 3. Facts and circumstances giving rise to this petitionare as follows: A. The respondentwas engaged in the workof whitewash in thehouseof one Shyam Ji Sharma, residentof Tulsi Vihar 8 Colony, Varanasi and his very closerelative Divya Rani was stayingwith him, as she wasappearingfor herIntermediate examination. The complainantShyam Ji Sharma alongwith his wifeRajni Sharma had gone to the market on 24.2.2007 to purchasegoods while Divya Rani (deceased)was supervising C the saidwork.Whenthe complainant came back with his wife theyfoundthe doorof thehouseopen and sawthat the respondenthad killed Divya Rani and wasnow tryingto conceal her body in a tin boxafterthrowingout the clothes containedin it.Therewas blood on Divya'sface. The complainant and his wife triedto catch hold of the respondent Dbut he pushedthem asideand ran away. They immediately lodged aFirstInformationReport and Divya'sbody was henceforthsent for post-mortemexamination. 8. In addition to severalsimple injuries on her body,a E ligature markmeasuring 29 cm in length, 1/2-1 cm in thickness at places all aroundthe neck,with a patternof pressurepoints 3 cm below the sternal notchand 3 cm below boththe ears, wasfound.The doctor also foundthat there was laceration of thevagina and the vaginalvault, and rupturingof hymenwas F also observed.Asphyxia as a result of strangulation contributed toherdeath.The doctor also opinedthat the victim had been subjected to sexualassault. C. On the basisof thepost-mortemreport, the charges under Sections 376and 302 of IndianPenal Code,1860 G (hereinafter called'IPC'), were framedagainstthe respondent, to which he pleaded not guilty and claimedtrial. D. After conclusionof the trial and particularlyplacing reliance uponthe confessionalstatement made by the Hrespondentunder Section 164 of the Code of Criminal STATE OF U.P. v. SANJAY KUMAR 363 Procedure, 1973 (hereinafter called'Cr.P.C.), the trial Court A videits judgmentand orderdated 5.12.2009 in SessionsTrial No. 245 of 2007 convictedthe respondentof thesaidcharges andawardedhim deathsentence.The reasonfor givingdeath sentence had beenrecordedstating that the dee.eased was 18 yearsof ageand the offencecommittedby therespondentB would have a verynegativeeffect on society. The offence committedby therespondentwas in fact rarestof therare.The confessionalstatement recorded by the Judicial Magistrate wasworth placingreliance upon, whereinthe respondenthad admittedhis guilt and, therefore, tak~ng into consideration all c the factsand circumstancesof thecase,the Court reachedthe conclusion that it wasa caseunderthe categoryof 'rarestof rarecases'.Therefore,death penalty was awardedto the respondent alongwith afineof Rs.10,000/- in default of which, he would haveto sufferfurther RI for 4 months.For the charge 0 of rape,he wasawarded life imprisonment,with a fine of Rs.10,000/- and in default, he would haveto sufferfurther RI for 4 years. E. Beingaggrieved,the respondent filed an appeal and while consideringhis appeal alongwith the DeathReferenceE made to theHighCourt,the High Court afterappreciatingthe entireevidence,came to the conclusion that upon consideration ofthe totality ofcircumstances,the chargesstood fully proved againstthe respondent.However, the casedid not fall within thecategory of 'rarestof rarecases'where the optionof F awarding a sentence of imprisonment for life was unquestionably foreclosed. Hence,this petition. 4. Learned counsel for the State hassubmittedthat theG High Court committed an error in notacceptingthe capital referenceand in thefactsand circumstances of the case, particularly, yi.ihere a girl of 18 yearsof agehas been raped and murdered, in orderto ensuresome deterrenteffect, theHigh Courtoughtto haveaffirmedthe deathsentence, particularly, H 364 SUPREME COURT REPORTS [2012] 7 S.C.R. A whenthe respondent himself hasadmittedhis guilt on both charges, while makinga confessional statementunder Section 164 Cr.P.C.before the Judicial Magistrate. 5. It has beensubmittedat thebarthatthis Courthas given 8different terms as minimumsentence to be served by convicts and,thus,the Court failed to ensureconsistency in sentence and in laying down an effectiveand elaborate sentencing policy. In Neel Kumar@ Anil Kumar v. State of Haryana, (2012) 5 SCC 766;and Sandeep v. State of UP. (2012)6 SCC 107 C while commutingthe awardeddeath sentenceinto a sentence of life imprisonment,it hasbeendirectedby thisCourtthat convictstherein must servea minimum of 30years in jail withoutremissionsbefore the consideration of theirrespective casesfor premature release. D It hasbeenfurthersubmittedthat the aforesaidjudgments reveal that thereis nodefiniteyardstickfor thepurpose of sentencingand thatit variesfrom courtto courtto awardthe term of sentence. If thecourtawardsa sentenceof a particular Eterm,subject to the clemencypower of thesovereignor subject topremature release under Section 433-ACr.P.C.,then the periodof sentenceso fixedby thecourtremainsmeaningless. Questionsarise as to whetherthe directionof thecourt, thatthe convicthas to servea particularperiod of sentence Fbeforehis casefor premature release is considered,infringes uponthe clemencyor otherstatutorypowers of theexecutive; whethersuch an order can be said to havebeenpassedunder Article142 of theConstitution;and whetherthe courtcan issue suchdirection in exerciseof thepowervested in it underArticle G142 of theConstitution.Whether this kind of sentenceawarded bythecourt,if madesubjectto theclemencypower and other statutorypowers could be held merely to be a recommendation, asa result of which,while exercisingsuch a. power, the executivemay bear in mindthe opinionexpressedby thecourt Handtakea decision,accordingly. STATE OF U.P. v. SANJAY KUMAR 365 6. The High Court after placing reliance upon the A judgments of thisCourt in Ramraj v. State of Chhattisgarh, AIR 2010SC 420; Mui/a & Anr. v. State of Uttar Pradesh, AIR 2010SC 942; and RameshbhaiChandubhai Rathod v. State of Gujarat, AIR 2011 SC 803; passedthe order of sentence asunder:B "Wethinkthat in the presentcase the ends of justice would be metif thesentenceof deathawardedto the appellant besubstitutedwith a sentence of imprisonment forthe whole of theremaining naturallife of the appellant,C subject further, to theconditionthat the prisoner could be eligible to anycommutationand remissionsthat maybe grantedby thePresidentand the Governorunder Articles 72 and 161 of theConstitution of India or of theState Governmentunder Section433-A of the Code of Criminal Procedure,1973 for goodand sufficientreasons". 7. We havegone throughthe impugnedjudgmentsand the evidenceproducedby thepetitioner-State.We are of the view thatthe HighCourt is correctto theextent,that the facts of the casedid not warrantdeath sentence. 8. Undoubtedly, a comprehensivesentencing policy is requiredto be laid down by theCourt,however,the same would be a herculean taskas it is impossible toforesee allpossible circumstanceswhich may take place in the future. In Swamy Shraddananda @ MuraliManoharMishra v. State of Karnataka, AIR 2008SC 3040, afterconsidering variousprovisionsof variousstatutes,a three-JudgeBench observedas under:D E F G "The mattermay be looked at froma slightly different angle. The issue of sentencing has two aspects.A sentencemay be excessiveand unduly harsh or it maybe highly disproportionatelyinadequate. When an appellant comesto thiscourtcarryinga death sentenceawarded by H A B c D E F G H 366 SUPREME COURT REPORTS [2012] 7 S.C.R. the trial court and confirmed by the High Court, this Court may find, as in the present appeal, that the case just falls shortof therarestof 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, theCourtmay strongly feel that a sentenceof life imprisonment that subject to remission normally works out to a term of 14 years would be grosslydisproportionate and inadequate.What then the Court should do? If the Court's option is limited only to two punishments, one a sentenceof imprisonment,for all intents and purposes, of not more than 14 years and the other death, the court may feel tempted and finditself nudged into endorsingthe death penalty. Such a course would indeed be disastrous. Afar more just,reasonable and propercourse would be to expand the options and to take over what, as a matter of fact, lawfullybelongs to the court, i.e., the vast hiatus between 14 years' imprisonment and death. It needs to be emphasizedthat the Court would take recourse to the expanded option primarily because in the facts of the case, the sentenceof 14 years' imprisonment would amount to no punishmentat all. In light of the discussions made above we are clearly of the viewthat there is a good and strong basisfor the Court to substitutea death sentence by life imprisonment or by a term in excess of fourteen years and further to directthat the convictmust not be releasedfrom the prisonfor therest of his lifeor fortheactualterm as specified in the order, as the casemay be . .. .. .. . We accordinglysubstitute the death sentence given to the appellant by the trialcourt and confirmed by the High Court by imprisonment for life and directthat he shall not be released from prison till the rest of his life." (Emphasisadded) STATE OF U.P. v. SANJAY KUMAR 367 TheCourtfurther clarified that whilepassing an order of A punishment,the Courtdeals with the powersof theStateunder theprovisionsof theCr.P.C.,the PrisonsActs and the Rules framedby theStates, and not with clemency power.that is, the powerof theSovereign in thisrespect. 9. Anotherthree-JudgeBench of thisCourt in Rameshbhai ChandubhaiRathod (supra) passeda similarorder, wherein, theBenchmade it clear, that the sentenceof naturallife would be subject to thepowerof clemency and powersunder Section 433-ACr.P.C. 10. The conceptof Separationof Powers is inherent in the polityof theConstitution.This doctrinecreates a systemof checksand balancesby reason of which,powersare so distributedthat noneof thethreeorgansset up can become B c so pre-dominant, so as to disablethe othersfrom exercisingD anddischargingthe powersand functionsentrusted to them. Theseparationof powersbetweenthe legislature,the executive andthe judiciaryconstitutesone of thebasicfeaturesof the Constitution.There is distinct and rigidseparationof powers underthe IndianConstitution.The scrupulouslydischargedE duties of allguardiansof theConstitutioninclude among them, the duty not to transgress the limitations of their own constitutionallycircumscribed powers by trespassinginto what falls properlywithin the domainof otherconstitutionalorgans. (Vide:His HolinessKesavanandaBharati Sripadagalvaru v. F State of Kera/a & Anr., AIR 1973 SC 1461; Smt. Indira Nehru Gandhi v. Shri RajNarainand Anr., AIR 1975 SC 2299; and State of WestBengal & Ors. v. The Committeefor Protection of DemocraticRights, West Bengaland Ors., AIR 2010 SC 1476). G 11. In Jayawant Dattatraya Suryarao v. State of Maharashtra, (2001)10 SCC 109, this Courtafter considering alargenumber of judgments,having conjointreading of Sections433 and 433-ACr.P.C., and takinginto accountthe factsof thecaseparticularlythat the appellanttherein had H 368 SUPREME COURT REPORTS [2012) 7 S.C.R. A committed a heinous act of terrorism and brutal murder of two police constables who were on duty to guard the person to whom they wanted to kill held that they could not be awarded death sentence and thus, commuted the same to imprisonment for life but directed that the accused therein would not be entitled B to any commutation or premature release under Section 433- A Cr.P.C., Prisons Act, Jail Manual or any other Statute and the Rules made for the purpose of commutatjon and remissions. 12. In ManishGoel v. Rohini Goel, AIR 2010 SC 1099, C after placing reliance on a very large number of Constitution Bench judgments of this Court, the Court came to the conclusion that the Court cannot exercise its power under Article 142 of the Constitution for passing an order or granting a relief, which is totally inconsistent with, or which goes against the substantive orstatutory provisions pertaining to the case. D E F G 13. The purpose of conferring the power of clemency has been explained by Chief Justice Taft in Exp. Grossman, (1924) 69 Led. 527 observing as under: "Theadministration of justiceby thecourtsis not necessarily always wiseor certainly considerateof circumstances which may properly mitigate guilt. To afford a remedy, it has always been thought essential in popular governments as well as monarchies, to vest in some other authoritythan the courtspower to avoidparticular judgments. It is acheckentrusted to the Executivefor special cases. To exercise it to the extent of destroying the deterrent effect of judicial punishment would be to pervert it; but whoever is to make it useful must have full discretion to exercise it." 14. In State of Haryana v. Jagdish, AIR 2010 SC 1690, this Court dealt with the issue of clemency power elaborately and held that such powers are unfettered and absolute. Where the State authorityframe rules under Article 161 of the HConstitution,the caseof theconvictis requiredto be STATE OF U.P. v. SANJAYKUMAR 369 consideredunder the said rules. Even if the life convictdoes A notsatisfythe requirementsof theremission rules or of theshort sentencing scheme,there can be no prohibition for the Presidentor theGovernorof the State, asthecasemay be, to exercisethe power of clemency vested in them,under the provisions of Articles 72 and 161 oftheConstitution.Therefore,B thisCourt while passingsuch ordersnever meantthat clemency power could not be exercisedby thePresident/Governor.The orderof theCourt in such an eventuality always remainssubject tothesaid clemency powers. 15.Sentencing Policy is a wayto guide judicial discretion in accomplishingparticular sentencing.Generally, two criteria, thatis, theseriousness of the crimeand the criminal history of c the accused,are usedto prescribepunishment.By introducing moreuniformityand consistencyinto the sentencingprocess, theobjective of the policy, is tomake it easierto predictD sentencingoutcomes. Sentencing policies are neededto addressconcerns in relation to unfettered judicial discretion and lack of uniformand equal treatment of similarly situated convicts.The principle of proportionality,as followed in various judgements of thisCourt,prescribesthat, the punishments shouldreflect the gravity of the offenceand also the criminal backgroundof theconvict.Thus the graverthe offenceand the longer the criminal record,the moresevereis thepunishment tobeawarded.By laying emphasis on individualised justice, andshapingthe result of the crimeto thecircumstancesof the offenderand the needsof thevictimand community,restorative justiceeschewsuniformity of sentencing. Undue sympathyto imposeinadequatesentence would do moreharm to the public systemto underminethe public confidence in the efficacy of law andsociety could not long endureunder seriousthreats. Ultimately, it becomesthe duty of theCourtsto award propersentence,having regard to thenatureof theoffenceand themanner in whichit wasexecutedor committedetc. The Courts should imposea punishmentbefitting the crimeso thatE F G H 370 SUPREMECOURT REPORTS [2012] 7 S.C.R. A theCourtsare ableto accuratelyreflect public abhorrence of the crime .. It is thenatureand gravityof thecrime,and not the criminal,which are germanefor considerationof appropriate punishment in acriminaltrial. Imposition of sentencewithout consideringits effect on socialorder in many casesmay be in B reality,a futileexercise.The survival of an orderlysociety demandsthe extinction of the life of a personwho is provedto bea menaceto socialorder and security.Thus, the Courtsfor thepurposeof decidingjust andappropriatesentence to be awarded for anoffence,have to delicately balance the c aggravatingand mitigatingfactors and circumstances in which acrimehas beencommitted, in a dispassionatemanner. In the absenceof anyfoolproofformula which may providea basis for reasonable criteria to correctly assess various circumstancesgermane for theconsideration of gravity of 0 crime, discretionaryjudgment, in relation to thefacts of each case,is theonlyway in whichsuch judgmentmay be equitably distinguished.The Courthas primarilydissectedthe principles intotwo differentcompartments-onebeing,the 'aggravating circumstances' and the other being, the 'mitigating circumstance'. To balancethe two is theprimaryduty of the ECourt.The principleof proportionalitybetween the crimeand thepunishmentis theprinciple of 'justdeserts'that servesas thefoundationof everycriminalsentencethat is justifiable. In other words,the 'doctrineof proportionality'has valuable applicationto thesentencingpolicy under Indian criminal Fjurisprudence.While determiningthe quantum of punishment thecourtalwaysrecordssufficientreasons. (Vide: Sevaka Perumal etc. v. State of Tamil Nadu AIR 1991 SC 1463; Ravji v. State of Rajasthan, AIR 1996 SC 787; State of Madhya Pradesh v. Ghanshyam Singh AIR2003SC 3191; Dhananjay G Chatterjeealias Dhana v. State of WB. AIR 2004SC 3454; RajendraPralhadraoWasnik v. The State of Maharashtra, AIR 2012SC 1377;and Brajendra Singh v. State of Madhya Pradesh, AIR2012SC 1552). H16. In view of the above,we reachthe inescapable STATE OF U.P. v. SANJAYKUMAR 371 conclusionthat the submissionsadvanced by learned counsel for the State areunfounded.The aforesaidjudgmentsmake it crystalclear that this Court has merely foundout the via media, whereconsideringthe factsand circumstances of a particular case,by way of whichit hascometo theconclusionthat it was notthe ·rarest of rarecases'.warrantingdeath penalty, but a sentence of 14yearsor 20 years,as referred to in theguidelines laid downby the Stateswould be totally inadequate.Life imprisonmentcannot be equivalentto imprisonmentfor 14 years or 20 years,rather it always meantas the wholenatural A B life. This Court has alwaysclarified that the punishmentso C awarded would be subjectto anyorderpassed in exercise of the clemency powers of the President of India or Governor of State, asthecasemay be. Pardons, reprievesand remissions aregranted in exercise of prerogativepower. There is noscope of judicial review of suchordersexcept on very limited grounds 0 for example non-application of mind while passingthe order; non-consideration of relevantmaterial; or if the ordersuffers fromarbitrariness.The powerto grantpardonsand to commute sentencesis coupled with a dutyto exercisethe same fairly and reasonably.Administration of justice cannotbe pervertedby executiveor political pressure. Of course, adoption of uniform standardsmay not be possiblewhile exercisingthe power of pardon.Thus, such ordersdo notinterferewith the sovereign power of the State. Moreso, notbeing in contravention of any statutoryor constitutionalprovision, the orders,even if treatedE tohavebeenpassedunder Article 142 of the Constitutiondo not deserve to be labelled asunwarranted.The aforesaid orders have beenpassed considering the gravity of the offences in thosecasesthat the accused would not be entitled F to beconsideredfor premature release underthe guidelines issuedfor thatpurposei.e. under JailManual etc.or evenunderG Section433-A Cr.P.C. With theseobservations,the Petition is dismissed. R.P.SLP dismissed. H |
