# Najeem Miyan v. State of U.P

- **Citation:** Capital Case No. 198 of 2018
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-06
- **Case number:** Capital Case No. 198 of 2018
- **Bench:** Pritinker Diwaker, Raj Beer Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/najeem-miyan-v-state-of-u-p-46186
- **Pages:** 20

## Headnote

(A) Criminal Law-Indian Penal Code (45 of
1860)-Section
302-Section
377-Section
511 - Protection of Children From Sexual
Offences Act (32 of 2012) , S.3, S.4 -
Murder - accused kidnap a six year boy -
made an attempt to have unnatural sex
with him - when deceased refused he was
brutally killed by cutting into pieces -
Conviction proper (Para 21)

Criminal law- Indian Penal Code (45 of
1860)- Section 52, 302 - Murder -
Imposition
of
sentence
-
Court
are
required to scrutinize the case minutely to
find out whether the case falls under the
category of "rarest of the rare case" -
whether imposition of death penalty,
which is an exception, would be the only
appropriate & meaningful sentence and
whether imprisonment for life which is the
rule would not be adequate and would not
meet the ends of justice - a just balance
has to be struck between the aggravating
and the mitigating circumstances (Para 34)
104 INDIAN LAW REPORTS ALLAHABAD SERIES
 Allegations of murder against accused - no
evidence on record to establish that the accused
appellant committed pre-planned and premeditated murder of a minor child - accusedappellant
suffering
from
mental
ailment
'Unspecified Non-Organic Psychosis'- Held - the
manner in which crime is committed by knife
blows is brutal, cruel but there is no evidence to
suggest as to what could be the reason for the
appellant to commit the said offence - This
could be on account of frustration, mental stress
or because of emotional disorder which would
be the mitigating circumstances - Hence death
sentence modified to life imprisonment till end
of life without remission (Para 38, 40)

Appeal Dismissed (E-5)

List of cases cited :

## Text

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3-5 All. Najeem Miyan Vs. State of U.P.
103
it cannot be said that the appellant knew or
could have ascertained that the drug was in
contravention of the provisions of Section
18 of the Act. Thus, failure to obtain a
warranty from the manufacturer would not
ipso facto mean that the accused failed to
exercise reasonable diligence.

18. We on above evidence, are of the
considered view that once the appellant
established that he acquired the drug from a
duly licensed manufacturer, whose identity
was disclosed to PW-1, at the first available
opportunity, he did not know and could not
with reasonable diligence, have ascertained
that the drug in question, in any way
contravened the provisions of Section 18,
coupled with the fact that it was not the
case of the prosecution that the drug was
not properly stored, thus he is entitled to
the defence available under Section 19(3)
of the Act, and the view taken by the trial
court to the contrary cannot be sustained.
Insofar, the conviction/ sentence under
Section 275 IPC is concerned, there is no
evidence that the accused appellant had any
knowledge that the drug in question was
adulterated. It has come in evidence that
after receipt of the test report dated
26.6.1982, which was the basis of the
prosecution, the appellant stopped the sale
of the drug in question.

Thus, in view of above, the
appeal is allowed. Conviction / sentence of
the appellant is set aside. The appellant is
on bail. His bail bond stands cancelled,
sureties discharged.

Let a copy of this judgment along
with record be sent to the learned Sessions
Judge, concerned for ensuring compliance
within 2 months under the intimation to this
Court.
----------
(2020)03-05ILR A103
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.03.2020

BEFORE
THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE RAJ BEER SINGH, J.

Capital Case No. 198 of 2018
With
Reference No. 03 of 2018

Najeem Miyan ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Ajay Kumar Srivastava, Sri
Pawan Singh Pundir (A.C.), Sri Gopal
Swaroop Chaturvedi(A.C.), Sri S.M. Ayyaz
Ali, Sri Suresh Singh

Counsel for the Opposite Party:
Sri J.K. Upadhyay, A.G.A., Sri Ajay Kumar
Srivastava

(A) Criminal Law-Indian Penal Code (45 of
1860)-Section
302-Section
377-Section
511 - Protection of Children From Sexual
Offences Act (32 of 2012) , S.3, S.4 -
Murder - accused kidnap a six year boy -
made an attempt to have unnatural sex
with him - when deceased refused he was
brutally killed by cutting into pieces -
Conviction proper (Para 21)

Criminal law- Indian Penal Code (45 of
1860)- Section 52, 302 - Murder -
Imposition
of
sentence
-
Court
are
required to scrutinize the case minutely to
find out whether the case falls under the
category of "rarest of the rare case" -
whether imposition of death penalty,
which is an exception, would be the only
appropriate & meaningful sentence and
whether imprisonment for life which is the
rule would not be adequate and would not
meet the ends of justice - a just balance
has to be struck between the aggravating
and the mitigating circumstances (Para 34)
104 INDIAN LAW REPORTS ALLAHABAD SERIES
 Allegations of murder against accused - no
evidence on record to establish that the accused
appellant committed pre-planned and premeditated murder of a minor child - accusedappellant
suffering
from
mental
ailment
'Unspecified Non-Organic Psychosis'- Held - the
manner in which crime is committed by knife
blows is brutal, cruel but there is no evidence to
suggest as to what could be the reason for the
appellant to commit the said offence - This
could be on account of frustration, mental stress
or because of emotional disorder which would
be the mitigating circumstances - Hence death
sentence modified to life imprisonment till end
of life without remission (Para 38, 40)

Appeal Dismissed (E-5)

List of cases cited :

1. Bachan Singh Vs St. of Punj. AIR 1980 SC
898

2. Machhi Singh Vs St. of Punj. (1983) 3 SCC
470

3. Ramnaresh & ors. Vs St. of Chhattisgarh
(2012) 4 SCC 257

4. Sk Abdul Hamid Vs St. of MP (1998) 3 SCC
188

5. Dharam Deo Yadav Vs St. of UP (2014) 5 SCC
509

6. Kalu Khan Vs St. of Raj. (2015) 16 SCC 492

7. Allauddin Mian Vs St. of Bihar (1989) 3 SCC 5

8. A. Devendran Vs St. of T.N. (1997) 11 SCC
720

9. Om Prakash Vs St. of Har. (1999) 3 SCC 19

10. Accused 'X' Vs St. of Mah., reported in
(2019) 7 SCC 1

(Delivered by Hon'ble Pritinker Diwaker, J.).

1. This death reference was made to
this Court under Section 366 of the
Criminal Procedure Code, 1973 (in short
'Cr PC') for confirmation of sentence
awarded to the appellant. The capital case
and the death reference are heard together
and this judgment will govern both the
capital case as well as the reference.

2. A large number of cases in recent
times coming before the Courts of law
involving rape and murder of young
boys/girls, is a matter of concern. In the
instant case, boy was about six years of
age, who was the victim of sexual assault
and animal lust of the accused appellant, he
was not only sexually assaulted but was
murdered by the accused appellant.

3. This death reference and the capital
case arise out of the judgment and order
dated 10.4.2018 passed by the Court of
Additional Sessions Judge/Court No.1,
Pilibhit
in
Special
Sessions
Trial
No.51/2017 in which, accused/appellant
herein was tried, found guilty, convicted
and sentenced to undergo death sentence
and to pay a fine of Rs.25,000/- for the
offence punishable under Section 302 of
IPC, to undergo rigorous imprisonment of
ten years and to pay a fine of Rs.10,000/-
for the offence punishable under Section
377/511 of IPC and to undergo life
imprisonment and a fine of Rs.10,000/- for
the offence punishable under Section 3/4 of
POCSO Act. In default of payment of fine,
he shall undergo two years' rigorous
imprisonment;
one
year's
rigorous
imprisonment and one year's rigorous
imprisonment under Sections 302, 377/511
of IPC and Section 3/4 of POCSO Act
respectively.

4. In the present case, deceased was a
young boy aged about six years, who went
missing on 21.2.2017 from his house. He
was searched immediately and at about
12:30 in the afternoon, (PW-3) Laik
3-5 All. Najeem Miyan Vs. State of U.P.
105
Ahmad, informed the informant (PW-1)
Moin (uncle of the deceased) that he saw
accused-appellant Nazeem Mian, carrying
Monish (deceased) to the house of Mobin
in his arms. Informant immediately rushed
to the house in question, and saw the
accused-appellant cutting the body of
Monish in pieces. Hue and cry was raised
by him and hearing the same, number of his
neighbours
including
(PW-2)
Uvash
reached to the place of occurrence;
information was also given to the police
who also immediately reached to the place
of occurrence; entered the house of Mobin
and the accused-appellant was caught red
handed. At 12:45 in the afternoon,
beheaded dead body of the deceased was
found and the body was cut in several
pieces, even internal organs of the body
were taken out from the body of the
deceased which were clustered near the
dead body. The crowd gathered there, made
an attempt to catch the accused-appellant,
but upon information, police made an
attempt to make the situation normal.
During this, villagers had closed their shops
and there was total chaos in the village.
Police brought the accused-appellant along
with them to the police station and on the
basis of written report Ex.Ka.1 lodged by
(PW-1) Moin, at 1:30 pm FIR Ex.Ka.16
was
registered
against
the
accusedappellant under Sections 377 and 302 of
IPC read with Section 3/4 of POCSO Act.

Inquest on the dead body of the
deceased was conducted, vide Ex.Ka.6 on
21.2.2017; photograph of the dead body
was marked as Material Ex.1. and the body
was sent for postmortem which was
conducted on the same day, vide Ex.Ka.4
by (PW-4) Dr S K Chawla.

As
per
Autopsy
Surgeon,
following injuries were noticed on the body
of the deceased:

Injuries - all Ante-mortem:

External Injuries:

1. Deep Hair singed out with
blood, Head chopped out from body at level
of C-1 vertebra, Large vessels, Trachea,
Hyoid bone not traceable.

2. A vertical midline. Incised
wound 38 cm x 5 cm in the midline from the
level of neck to the genetalia and the
intervening gluteal region.

3. On the ventral side skin peeled
out to depth vertebra and ribeage below
upto the gluteal region.

Internal Injuries:

4. All internal organs viz-a-viz
Heart, spleen, liver, small and large
intestines separated out and kept in cluster.
Both kidneys, attached in place.

5. Internal organs absolutely pale
with occasional clots on the body.

6. Missed organs - Intercostal
muscles, fatty tissues. Alimentary canal
with Rectum & Anal canal, Larynx, Hyoid
bone, Trachea- Oesophagus also not
traceable.

Cause of Death

Death as a result of Shock and
Haemorrhage due to syncope, due to antemortem injuries.

5. While framing charge, trial Judge
has framed charge against the accusedappellant under Sections 377 and 302 of
IPC and Section 3/4 of POCSO Act.

6. So as to hold accused appellant
guilty, prosecution has examined seven
witnesses. Statement of the accusedappellant was recorded under Section 313
of Cr PC in which, he pleaded his
innocence and false implication.

7. By the impugned judgment and
order, the trial Judge has convicted the
appellant and sentenced, as mentioned in
106 INDIAN LAW REPORTS ALLAHABAD SERIES
paragraph-3 of this judgment. Hence this
appeal.

8. Counsel for the appellant submits:-

(i) that the evidence of last seen
by (PW-3) Laik Ahmad is not reliable and
it appears that he has falsely implicated the
accused appellant.

(ii) that a very improbable story
has been put forth by the prosecution where
it is alleged that when (PW-1) Moin and
(PW-2)
Uvash
and
other
villagers,
including the police reached to the house of
Mobin, accused-appellant was still cutting
the body of the deceased in pieces. It has
been argued that no normal man would
commit such heinous offence and it appears
that the deceased was murdered by some
third person. Counsel for the accused
appellant
submits
that
unfortunately,
accused-appellant, who is an innocent and
simple villager, was not mentally sound and
he has been falsely implicated in the case.

(iii) that there is no conclusive
and
clinching
evidence
showing
the
involvement of the accused-appellant in the
commission of crime under Section 377 of
IPC; even postmortem report does not
suggest the same.

(iv) that the accused-appellant is
suffering from mental ailment, namely,
'Unspecified Non-Organic Psychosis' (F-
29/0).

9. On the other hand, learned State
Counsel submits:

(i) that the trial Court is fully justified
in awarding death sentence to the accusedappellant.

(ii) that a young boy, aged about six
year, has been done to death by the accusedappellant for no fault of him.

(iii) that upon receiving information
of last seen by (PW-3) Laik Ahmad,
complainant (PW-1) Moin and (PW-2) Uvash
reached to the house of Mobin and there, they
were perplexed to see the accused-appellant
sitting with the pieces of dead body of the
deceased.

(iv) that while referring to the
photograph of the dead body, Material Ex.1, it
has been argued that the offence has been
committed in such a brutal manner where the
accused- appellant had taken out the internal
organs of the dead body, including heart, spleen,
small and large intestines, liver etc. Even Head
of the deceased was chopped by the accused-
appellant and kept near the dead body.

(v) that after receiving information,
police party reached to the place of occurrence
and they also saw the brutality done by the
accused-appellant in killing the deceased.

(vi) that in 313 Cr PC statement,
instead of offering any defence, most of the
questions have been admitted by the accused-
appellant and thereafter, nothing remains in
favour of the accused-appellant and only
conclusion is the award of death sentence.

(vii) that from the spot, one knife and
one blade was seized and as per FSL, blood
was found on both these articles, whereas
human blood was found on the knife.

(viii) that taking into consideration
the brutality of the offence; age of the victim
and acts of perversion on the person of the
victim, cumulatively, the sentence awarded by
the trial Court is just and proper and does not
call for any interference by this Court in its
appellate jurisdiction.

(ix) that the accused appellant
was found sitting near the dead body of the
deceased and blood was also found on his
mouth and hands and thus, possibility that
the accused appellant might have eaten
certain parts of the body, which have been
found missing, cannot be ruled out.
3-5 All. Najeem Miyan Vs. State of U.P.
107

(x)
that
when
the
accused
appellant could not succeed in committing
unnatural sex with the deceased, he killed
him and this fact, has been admitted by the
accused appellant in his 313 Cr PC
statement while answering question no.8.

10. Learned State Counsel has also
produced a recent medical report of the
accused-appellant
dated
24.11.2019,
mentioning therein that the accusedappellant is not suffering from any mental
ailment and is completely fit. Medical
report dated 24.11.22019 is given to
learned counsel for the defence and is taken
on record.

11. (PW-1) Moin, is an uncle of
deceased Monish. He states that he knew
the accused appellant. On 21.2.2017, his
nephew Monish went missing; he was
searched by him and other persons and at
about 12:30 in the afternoon, he was
informed by (PW-3) Laik Ahmad that
accused-appellant had taken the deceased
in the house of Mobin on his lap. He (this
witness) entered the house of Mobin and
there in a room, he saw the accusedappellant cutting the dead body of the
deceased into pieces by a knife and the
body
was
in
naked
condition.
He
immediately raised his cries and upon
hearing the same, Anish Ahmad, Iqbal
Ahmad, Uvash and Fahmeez reached there
and upon receiving information, the police
party also reached there and saw the
occurrence.
Chopped head
was
kept
separately by the appellant and he was
cutting the body in pieces. The accused
appellant was arrested at the place of
occurrence itself and at that time, he was
having a knife with him. He states that after
seeing the incident, he gathered an
impression that the accused appellant did
the offence with an intention to commit
unnatural sex with the deceased, which
might have been protested by him, resulting
the commission of offence. He further
states that crowed gathered at the place of
occurrence wanted to beat the accused
appellant, but he was saved by the police.
He further states that because of the terror
of the incident, villagers had closed their
shops and that at his instance, FIR was
registered against the accused appellant. He
further states that a knife kept by the
accused appellant in his hand and was
stained with blood. He further states that
the clothes of the accused appellant were
also stained with blood and he also noticed
blood on his mouth and hands. He further
states that from the place of occurrence,
one bloodstained blade was also seized.
Photographer was called, who took a photo
of mutilated dead body of the deceased,
vide Material Ex.1. Seized articles were
produced in the Court and this witness
identified all those articles, including knife,
blade and other articles. He further states
that the body was beheaded; intestines,
lungs, liver and heart were separated from
the body.

12. (PW-2) Uvash, is other eyewitness
to the incident. He states that on the date of
occurrence at about 12:30 in the afternoon,
he was in his house and upon hearing the
commotion, when he reached to the house
of Mobin, he saw the accused-appellant
having a knife in his hand and then, he
noticed the mutilated dead body of the
deceased and that the accused appellant
was cutting the body in pieces. He also
states that he noticed blood on the mouth
and hands of the accused appellant. He
further states that (PW-1) Moin and Anish
were also present at the spot itself.

13. (PW-3) Laik Ahmad, is a witness
of last seen, has stated that on the date of
108 INDIAN LAW REPORTS ALLAHABAD SERIES
occurrence at about 11:45 pm, he saw
accused appellant taking the deceased
towards the house of Mobin on his lap. He
states that as a lot of villagers used to go to
the house of Mobin for consuming plums,
as a plum tree was in his house, he did not
pay much attention as to why the accused
appellant is going to said house. However,
when he saw Moin, Anish and Nazeem
searching the deceased, he informed them
that he saw the accused appellant taking the
deceased in his lap in the house of Mobin.
He further states that after informing this
fact to Moin, he left for another village
Karjaina to attend one wedding and there,
he received telephonic information from his
son and daughter that Monish have been
killed by the accused appellant.

14. (PW-4) Dr S K Chawala,
conducted postmortem on the body of the
deceased, vide Ex.Ka.4. He states that the
deceased was a young boy of six years; his
dead body was in mutilated condition and
the separated head was also sent for
postmortem. Following injuries have been
noted on the body of the deceased:

"External Injuries:

1. Deep Hair singed out with
blood, Head chopped out from body at level
of C-1 vertebra, Large vessels, Trachea,
Hyoid bone not traceable.

2. A vertical midline. Incised
wound 38 cm x 5 cm in the midline from the
level of neck to the genitalia and the
intervening gluteal region.

3. On the ventral side skin peeled
out to depth vertebra and ribeage below
upto the gluteal region.

Internal Injuries:

4. All internal organs viz-a-viz
Heart, spleen, liver, small and large
intestines separated out and kept in cluster.
Both kidneys, attached in place.

5. Internal organs absolutely pale
with occasional clots on the body.

6. Missed organs - Intercostal
muscles, fatty tissues. Alimentary canal
with Rectum & Anal canal, Larynx, Hyoid
bone, Trachea- Oesophagus also not
traceable.

Cause of Death

Death as a result of Shock and
Haemorrhage due to syncope, due to antemortem injuries."

15. (PW-5) Sacchidanand Ray, is the
first Investigating Officer. He states that he
reached to the place of occurrence and
started investigation. In his presence,
photographer took the photograph of
mutilated dead body, vide Material Ex.1
and inquest was conducted. He further
states that during investigation, he was
informed by Sameem Begam, Sajida,
Noori,
Haseena
Bano,
Shabina,
Lal
Mohammad and Mobin that, quite often,
the accused-appellant used to tease young
kids and everybody was troubled with his
conduct, but to avoid dispute/litigation and
police action, no complaint was made to
the police, resultantly, occurrence of the
present incident. He further states that 100
number vehicle reached to the police
station at about 12:45 in the afternoon and
they disclosed the incident.

16. (PW-6) Jitendra Pal Singh,
recorded FIR, vide Ex.Ka.16. He also states
that when he saw the accused appellant, his
clothes were bloodstained and that he also
noticed blood on his face. Accusedappellant was fully conscious and normal.

A question was put to this witness
by the Court as to when the accused
appellant was in the police station, he was
3-5 All. Najeem Miyan Vs. State of U.P.
109
sent for mental check up. Answer was
given by the witness that the accused was
normal and healthy and, therefore, he was
not sent for medical check up. He has
further clarified that as the activities of the
accused appellant were not abnormal, he
did not make any entry regarding his
mental condition.

17. (PW-7) Jitendra Singh Yadav, is
the second Investigating Officer, has duly
supported the prosecution case. He also
filed charge-sheet against the accused
appellant. He has further clarified that no
document regarding medical treatment of
the accused appellant has been filed, as he
was found medically fit.

18. In 313 Cr PC statement, various
questions were put to the accused appellant.
While answering question no.1, which
relates to the commission of unnatural sex
with the deceased and killing him, he
replied that this is not correct. He also
denied the fact that he took the deceased in
his lap to the house of Mobin. He, however,
has admitted the fact that the house of
Mobin was vacant and that Moin has made
a statement that when he reached to the
house of Mobin, he saw him (accused
appellant) cutting the body of the deceased
in pieces. Answering this question, the
accused appellant has admitted the fact that
he did the said act. He has also admitted the
fact that as the deceased had refused to
allow him to have physical relation with
him, he first killed him and then cut his
body in pieces. He has further admitted the
fact that certain persons, within the vicinity,
have informed that he (accused appellant)
used to tease the small children. While
answering this question, the appellant says
'yes'. He has also admitted the fact that, at
the time of incident, he was fully conscious
and his mental condition was normal. He,
however, has denied the fact of posting of
certain officers in police station by saying
he is not aware of the same. The questions
and answers put to the accused appellant in
313 Cr PC statement reflect that his mental
condition was normal and he was not
having any mental problem at the time of
recording his 313 Cr PC statement. True it
is that merely on the basis of 313 Cr PC
statement, accused cannot be convicted, but
it can be relied upon and referred to by the
Court while considering the other facts and
circumstances of the case.

19. Close scrutiny of the evidence
makes it clear that on 21.2.2017, the
accused-appellant took deceased Monish in
the house of Mobin and killed him in a
brutal manner. While searching deceasedMonish, when Moin and Ovash reached to
the house of Mobin, they found accused
appellant sitting and cutting the dead body
of the deceased in various pieces; he was
having a knife with him and his hands and
mouth were stained with blood. From the
spot, bloodstained knife and blade were
seized. The brutality of the offence can be
seen by the act of the accused appellant
where the beheaded body was found in
several pieces. A reference of the same may
be made as under:

"All internal organs viz-a-viz
Heart, spleen, liver, small and large
intestines separated out and kept in cluster.
Both kidneys, attached in place.

Internal organs absolutely pale
with occasional clots on the body.

Missed
organs
-
Intercostal
muscles, fatty tissues. Alimentary canal
with Rectum & Anal canal, Larynx, Hyoid
bone, Trachea- Oesophagus also not
traceable."

Even when the police reached to
the place of occurrence, they found the
110 INDIAN LAW REPORTS ALLAHABAD SERIES
accused appellant sitting with the pieces of
body. (PW-3) Laik Ahmad, a witness of last
seen, has also supported the prosecution
case and has stated that when Moin was
searching the deceased, he informed him
that he saw the accused-appellant, carrying
the deceased in his arms to the house of
Mobin.

20. Considering the statements of
(PW-1) Moin, (PW-2) Uvash and (PW-3)
Laik Ahmad and the police officials, there
is no hesitation for this Court to hold that it
is the accused appellant who committed the
murder of the deceased in a brutal manner.
Even in his 313 Cr PC statement, the
accused appellant has admitted his guilt
and has stated that it is he who killed the
deceased. True it is that merely on the basis
of admission made by an accused in his
313 Cr PC statement, he cannot be
convicted, but the law in this respect is well
settled that if other piece of evidence
reflects the involvement of the accused in
commission of the offence, his 313 Cr PC
statement can be treated as an additional
evidence against him. The evidence also
reflects that the accused appellant was
habitual
of
teasing/harassing
young
children.

21. Considering all these aspects of
the case, it appears that the accused
appellant lifted deceased Monish in his
arms to the house of Mobin and made an
attempt to have unnatural sex with him.
When the deceased refused to succumb to
the pressure of the accused appellant, he
was brutally killed by him. Taking all these
aspects of the matter, in our considered
opinion, the trial Court was fully justified
in convicting the accused appellant under
Sections 302, 377/511 of IPC and Section
3/4 of POCSO Act.

22. Upholding the conviction of the
accused appellant, we proceed to consider
the question of 'death sentence' awarded to
him by the Court below under Section 302
of IPC.

23. Capital punishment has been the
subject-matter of great social and judicial
discussion and catechism. From whatever
point of view it is examined, one
indisputable statement of law follows that
it is neither possible nor prudent to state
any universal form which would be
applicable to all the cases of criminology
where capital punishment has been
prescribed. Thus, it is imperative for the
court to examine each case on its own
facts, in the light of enunciated principles
and before opting for the death penalty,
the circumstances of the offender are also
required to be taken into consideration
along with the circumstances of crime for
the reason that life imprisonment is the
rule and death sentence is an exception.

24. Before going into the legality
and propriety of question of sentence
imposed
upon
the
appellant,
it
is
profitable to have a look at the various
decisions of the Apex Court in the matter.
The decision in Bachan Singh v. State of
Punjab reported in AIR 1980 SC 898
pronounced by the Constitutional Bench
of the Hon'ble Apex Court stands first
among the class making a detailed
discussion after the amendment of Cr.P.C.
in 1974. In this case, the Apex Court has
held that provision of death penalty was
an alternative punishment for murder and
is not violative of Article 19 of the
Constitution
of
India.
Relevant
paragraphs of the said judgment are
relevant and the same are reproduced
herein below:-
3-5 All. Najeem Miyan Vs. State of U.P.
111

"132. To sum up, the question
whether or not death penalty serves any
penological purpose is a difficult, complex
and intractable issue. It has evoked strong,
divergent views. For the purpose of testing
the constitutionality of the impugned
provision as to death penalty in Section 302
of the Penal Code on the ground of
reasonableness in the light of Articles 19
and 21 of the Constitution, it is not
necessary for us to express any categorical
opinion, one way or the other, as to which
of these two antithetical views, held by the
Abolitionists and Retentionists, is correct.
It is sufficient to say that the very fact that
persons of reason, learning and light are
rationally and deeply divided in their
opinion on this issue, is a ground among
others,
for
rejecting
the
petitioners
argument that retention of death penalty in
the impugned provision, is totally devoid of
reason and purpose. If, notwithstanding the
view of the Abolitionists to the contrary, a
very large segment of people, the world
over, including sociologists, legislators,
jurists, judges and administrators still
firmly believe in the worth and necessity of
capital punishment for the protection of
society, if in the perspective of prevailing
crime conditions in India, contemporary
public opinion channelized through the
people's representatives in Parliament, has
repeatedly in the last three decades,
rejected all attempts, including the one
made recently, to abolish or specifically
restrict the area of death penalty, if death
penalty is still a recognised legal sanction
for murder or some types of murder in most
of the civilised countries in the world, if the
framers of the Indian Constitution were
fully aware -- as we shall presently show
they were -- of the existence of death
penalty as punishment for murder, under
the Indian Penal Code, if the 35th Report
and subsequent reports of the Law
Commission suggesting retention of death
penalty, and recommending revision of the
Criminal Procedure Code and the insertion
of the new Sections 235 (2) and 354 (3) in
that
Code
providing
for
presentence
hearing and sentencing procedure on
conviction for murder and other capital
offences were before the Parliament and
presumably considered by it when in 19721973 it took up revision of the Code of
1898 and replaced it by the Code of
Criminal Procedure, 1973, it is not possible
to hold that the provision of death penalty
as an alternative punishment for murder, in
Section 302 of the Penal Code is
unreasonable and not in the public interest.
We would, therefore, conclude that the
impugned
provision
in
Section
302,
violates neither the letter nor the ethos of
Article 19.

200. Drawing upon the penal
statutes of the States in U.S.A. framed after
Furman v, Georgia, in general, and Clauses
2(a), (b), (c), and (d) of the Indian Penal
Code (Amendment) Bill passed in 1978 by
the Rajya Sabha, in particular, Dr. Chitale
has
suggested
these
"aggravating
circumstances":

Aggravating circumstances : A
Court may, however, in the following cases
impose the penalty of death in its
discretion:

(a) if the murder has been
committed after previous planning and
involves extreme brutality; or

(b)
if
the
murder
involves
exceptional depravity; or

(c) if the murder is of a member
of any of the armed forces of the Union or
of a member of any police force or of any
public servant and was committed-

(i) while such member or public
servant was on duty; or

(ii) in consequence of anything
done or attempted to be done by suc
112 INDIAN LAW REPORTS ALLAHABAD SERIES
member or public servant in the lawful
discharge of his duty as such member or
public servant whether at the time of
murder he was such member or public
servant, as the case may be, or had ceased
to be such member or public servant; or

(d) if the murder is of a person
who had acted in the lawful discharge of
his duty under Section 43 of the CrPC,
1973, or who had rendered assistance to a
Magistrate or a police officer demanding
his aid or requiring his assistance under
Section 37 and Section 129 of the said
Code.

201. Stated broadly, there can be
no objection to the acceptance of these
indicators but as we have indicated already,
we would prefer not to fetter judicial
discretion by attempting to make an
exhaustive enumeration one way or the
other.

204. Dr. Chitaley has suggested
these mitigating factors:

"Mitigating circumstances":- In
the exercise of its discretion in the above
cases, the Court shall take into account the
following circumstances:

(1)
That
the
offence
was
committed under the influence of extreme
mental or emotional disturbance.

(2) The age of the accused. It the
accused is young or old, he shall not be
sentenced to death.

(3) The probability that the
accused would not commit criminal acts of
violence as would constitute a continuing
threat to society. (4) The probability that
the
accused
can
be
reformed
and
rehabilitated. The State shall by evidence
prove that the accused does not satisfy the
conditions 3 and 4 above.

(4) The probability that the
accused can be reformed and rehabilitated.
The State shall by evidence prove that the
accused does not satisfy the conditions 3
and 4 above.

(5)
That
in
the
facts
and
circumstances of the case the accused
believed that he was morally justified in
committing the offence.

(6) That the accused acted under
the duress or domination of another person.

(7) That the condition of the
accused showed that he was mentally
defective and that the said defect unpaired
his capacity to appreciate the criminality of
his conduct.

207. We will do no more than to
say that these are undoubtedly relevant
circumstances and must be given great
weight in the determination of sentence.

209. There are numerous other
circumstances justifying the passing of the
lighter sentence; as there are countervailing
circumstances of aggravation. "We cannot
obviously feed into a a judicial computer
all
such
situations
since
they
are
astrological imponderables in an imperfect
and undulating society." Nonetheless, it
cannot be over-emphasised that the scope
and concept of mitigating factors in the
area of death penalty must receive a liberal
and expansive construction by the courts in
accord with the sentencing policy writ large
in Section 354 (3). Judges should never be
bloodthirsty. Hanging of murderers has
never been too good for them. Facts and
figures albeit incomplete, furnished by the
Union of India, show that in the past Courts
have inflicted the extreme penalty with
extreme infrequency - a fact which attests
to the caution and compassion which they
have always brought to bear on the exercise
of their sentencing discretion in so grave a
matter. It is, therefore, imperative to voice
the concern that courts, aided by the broad
illustrative guidelines indicated by us, will
discharge
the
onerous
function
with
evermore scrupulous care and humane
3-5 All. Najeem Miyan Vs. State of U.P.
113
concern, directed along the high-road of
legislative policy outlined in Section 354
(3), viz., that for persons convicted of
murder, life imprisonment is the rule and
death sentence an exception. A real and
abiding concern for the dignity of human
life postulates resistance to taking a life
through law's instrumentality. That ought
not to be done save in the rarest of rare
cases when the alternative option is
unquestionably foreclosed."

25. In Machhi Singh v. State of
Punjab reported in (1983) 3 SCC 470, a
three- Judges Bench of the Supreme Court
has made an attempt to cull out certain
aggravating and mitigating circumstances
and it has been held that it was only in
rarest of rare cases, when the collective
conscience of the community is so shocked
that it will expect the holders of the judicial
power centre to inflict death penalty
irrespective of their personal opinion as
regards
desirability
or
otherwise
of
retaining death penalty. In this judgment
the Supreme Court has summarized the
instances on which death sentence may be
imposed, which reads thus:-

"38. xxxxxxxxxxx

(i) The extreme penalty of death
need not be inflicted except in gravest cases
of extreme culpability;

(ii) Before opting for the death
penalty the circumstances of the 'offender'
also require to be taken into consideration
along with the circumstances of the 'crime'.

(iii) Life Imprisonment is the rule
and death sentence is an exception. In other
words death sentence must be imposed
only when life imprisonment appears to be
an
altogether
inadequate
punishment
having regard to the relevant circumstances
of the crime, and provided, and only
provided, the option to impose sentence of
imprisonment
for
life
cannot
be
conscientiously exercised having regard to
the nature and circumstances of the crime
and all the relevant circumstances;

(iv)
A
balance-sheet
of
aggravating and mitigating circumstances
has to be drawn up and in doing so the
mitigating
circumstances
has
to
be
accorded full weightage and a just balance
has to be struck between the aggravating
and the mitigating circumstances before the
option is exercised."

39. In order to apply these
guidelines inter alia the following questions
may be asked and answered:

(a) Is there something uncommon
about the crime which renders sentence of
imprisonment for life inadequate and calls
for a death sentence?

(b) Are the circumstances of the
crime such that there is no alternative but to
impose death sentence even after according
maximum weightage to the mitigating
circumstances which speak in favour of the
offender?

40. If upon taking an overall
global view of all the circumstances in the
light of the aforesaid proposition and taking
into account the answers to the questions
posed herein above, the circumstances of
the case are such that death sentence is
warranted, the court would proceed to do
so."

(Emphasis supplied)

26. The issue again came up before
Hon'ble Apex Court in Ramnaresh &
others v. State of Chhattisgarh reported
in (2012) 4 SCC 257, wherein the Supreme
Court reiterated 13 aggravating and 7
mitigating circumstances as laid down in
the case of Bachan Singh (supra) required
to be taken into consideration while
applying the doctrine of "rarest of rare"
case. Relevant Para of the same reads thus:-
114 INDIAN LAW REPORTS ALLAHABAD SERIES

"76. The law enunciated by this
Court in its recent judgements, as already
noticed, adds and elaborates the principles
that were stated in the case of Bachan
Singh (supra) and thereafter, in the case of
Machhi Singh (supra). The aforesaid
judgments,
primarily
dissect
these
principles into two different compartments
-
one
being
the
"aggravating
circumstances" while the other being the
"mitigating circumstances". The Court
would consider the cumulative effect of
both these aspects and normally, it may not
be very appropriate for the Court to decide
the most significant aspect of sentencing
policy with reference to one of the classes
under any of the following heads while
completely ignoring other classes under
other heads. To balance the two is the
primary duty of the Court. It will be
appropriate for the Court to come to a final
conclusion upon balancing the exercise that
would help to administer the criminal
justice system better and provide an
effective and meaningful reasoning by the
Court as contemplated under Section 354
(3) of Cr.P.C.

Aggravating Circumstances:

(1) The offences relating to the
commission of heinous crimes like murder,
rape, armed dacoity, kidnapping etc. by the
accused with a prior record of conviction
for capital felony or offences committed by
the person having a substantial history of
serious assaults and criminal convictions.

(2) The offence was committed
while the offender was engaged in the
commission of another serious offence.

(3) The offence was committed
with the intention to create a fear psychosis
in the public at large and was committed in
a public place by a weapon or device which
clearly could be hazardous to the life of
more than one person.

(4) The offence of murder was
committed fr ransom or like offences to
receive money or monetary benefits.

(5) Hired killings.

(6) The offence was committed
outrageously for want only while involving
inhumane treatment and torture to the
victim.

(7) The offence was committed
by a person while in lawful custody.

(8) The murder or the offence
was committed to prevent a person lawfully
carrying out his duty like arrest or custody
in a place of lawful confinement of himself
or another. For instance, murder is of a
person who had acted in lawful discharge
of his duty under Section 43 Cr.P.C.

(9) When the crime is enormous
in proportion like making an attempt of
murder of the entire family or members of
a particular community.

(10) When the victim is innocent,
helpless or a person relies upon the trust of
relationship and social norms, like a child,
helpless woman, a daughter or a niece
staying with a father/uncle and is inflicted
with the crime by such a trusted person.

(11) When murder is committed
for a motive which evidences total
depravity and meanness.

(12) When there is a cold blooded
murder without provocation.

(13) The crime is committed so
brutally that it pricks or shocks not only
the judicial conscience but even the
conscience of the society.

Mitigating Circumstances: