# 15 (ADDL.) S.C.R. 92 RAJESH KUMAR v. STATE THROUGH GOVT. OF NCT OF DELI-II

- **Citation:** [2011] 15 S.C.R. 92
- **Court:** Supreme Court of India
- **Decided:** 2011-09-28
- **Case number:** Criminal Appeal Nos. 1871-1872 of 2011
- **Bench:** D.K. Jain, Asok Kumar Ganguly
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/15-addl-s-c-r-92-rajesh-kumar-v-state-through-govt-of-nct-of-deli-ii-27393
- **Pages:** 43

## Headnote

Penal Code, 1860 - s.302 - Murder- Death penaltyConcept of 'rarest of rare' case - Mitigating circumstances -
c Murder of two children - one aged 4~ years, and the other
aged B months - Trial court convicted accused-appellant U/
s.302 and sentenced him to death - Conviction and sentence
upheld by High Court - Sustainability of death sentence -
Held: In the instant case the State failed to show that the
o appellant was a continuing threat to society or that he was
beyond reform and rehabilitation - This was certainly a
mitigating circumstance which the High Court failed to take
into consideration - While considering thl!I aggravating
circumstances, the High Court was substantially influenced
E with the brutality in the manner of committing the crime ... No
doubt the murder was committed in this case in a very brutal
and inhuman fashion, but that alone cannot justify infliction
of death penalty - For a person convicted of murder, life
imprisonment is the rule and death sentence, an exception,
and the mitigating circumstances must be given due
F consideration ....: Except in 'rarest of rare cases' and for 'special
reasons' death sentence cannot be imposed as an alternative
option to imposition of life sentence - In the facts of this case,
the death sentence Imposed by the High Court cannot be
sustained and is thus substituted by the sentence of
G imprisonment for life :- Code of Criminal Procedure, 1973 -
s.~~
.
. Code of Criminal Procedure, 1973 - ss.235(2) and
354(3) - Opportunity of hearing to accused on the question
H
92
•
RAJESH KUMAR v. STATE THROUGH GOVT. OF
93
NCT OF DELHI
of sentence at the post-conviction stage - Effect of - Held: It A
gives the accused an opportunity to raise fundamental issues
for adjudication and effective determination by Court of its
sentencing discretion in a fair and reasonable manner - The
object of hearing u/s.235(2) being intrinsically and inherently
connected with the sentencing procedure, the provision of B
s.354(3) which calls for recording of special reason for
awarding death sentence must be read conjointly with s.235(2)
- Special reasons can only be validly recorded if an effective
opportunity of hearing contemplated uls. 235(2) of Cr. P. C. is
genuinely extended and is allowed to be exercised by the c
accused who stands convicted and is awaiting the sentence
- These two provisions do not stand in isolation but must be
construed as supplementing each other as ensuring the
constitutional guarantee of a just, fair and reasonable
procedure in the exercise of sentencing discretion by the court 0
- Sentence/Sentencing.
Sentence/Sentencing - Death Sentence - Evolution of
sentencing structure and the concept of mitigating
circumst{lnces in India relating to death penalty - Discussed:
Sentence/Sentencing - Changes in sentencing structure E
- Evolving standards of decency - Concept of dignity of the
individual - Paradigm shift in jurisprudence with gradual
transition of legal regime from 'rule of law' to 'due process of
law' - Constitution of India, 1950 - Article 21.
F
Appellant was charged with the offence of
committing the murder of two children- one aged 4Yz
years, and the other aged 8 months, in a brutal and
inhuman manner. The trial court convicted the appellant
under Section 302 IPC and imposed death sentence. On
G
appeal, the High Court confirmed the conviction and the
death sentence.
The question which arose for consideration in the
instant appeals was whether the Trial Court and the High
H
94
SUPREME COURT REPORTS (2011) 15 (ADDL.) S.C.R.
A Court had improperly balanced the consideration of
aggravating and mitigating circumstances and that if
mitigating circumstances are properly weighed in
accordance with the well-known judicial principles, the
death sentence awarded to the appellant cannot be
B sustained.
Disposing of the appeals, the Court
HELD: 1.1. The Code of Criminal Procedure, 1898
had section 376(5) which required that if an accused is
C convicted of an offence punishable with

## Text

_Characters 0–39,933 of 82,516. This is a partial read: ask again with offset=39933 for what follows._

.A
B
[2011] 15 (ADDL.) S.C.R. 92
RAJESH KUMAR
v.
STATE THROUGH GOVT. OF NCT OF DELI-II
(Criminal Appeal Nos. 1871-1872 of 2011)
SEPTEMBER 28, 2011
[D.K. JAIN AND ASOK KUMAR GANGULY, JJ.]
Penal Code, 1860 - s.302 - Murder- Death penaltyConcept of 'rarest of rare' case - Mitigating circumstances -
c Murder of two children - one aged 4~ years, and the other
aged B months - Trial court convicted accused-appellant U/
s.302 and sentenced him to death - Conviction and sentence
upheld by High Court - Sustainability of death sentence -
Held: In the instant case the State failed to show that the
o appellant was a continuing threat to society or that he was
beyond reform and rehabilitation - This was certainly a
mitigating circumstance which the High Court failed to take
into consideration - While considering thl!I aggravating
circumstances, the High Court was substantially influenced
E with the brutality in the manner of committing the crime ... No
doubt the murder was committed in this case in a very brutal
and inhuman fashion, but that alone cannot justify infliction
of death penalty - For a person convicted of murder, life
imprisonment is the rule and death sentence, an exception,
and the mitigating circumstances must be given due
F consideration ....: Except in 'rarest of rare cases' and for 'special
reasons' death sentence cannot be imposed as an alternative
option to imposition of life sentence - In the facts of this case,
the death sentence Imposed by the High Court cannot be
sustained and is thus substituted by the sentence of
G imprisonment for life :- Code of Criminal Procedure, 1973 -
s.~~
.
. Code of Criminal Procedure, 1973 - ss.235(2) and
354(3) - Opportunity of hearing to accused on the question
H
92
•
RAJESH KUMAR v. STATE THROUGH GOVT. OF
93
NCT OF DELHI
of sentence at the post-conviction stage - Effect of - Held: It A
gives the accused an opportunity to raise fundamental issues
for adjudication and effective determination by Court of its
sentencing discretion in a fair and reasonable manner - The
object of hearing u/s.235(2) being intrinsically and inherently
connected with the sentencing procedure, the provision of B
s.354(3) which calls for recording of special reason for
awarding death sentence must be read conjointly with s.235(2)
- Special reasons can only be validly recorded if an effective
opportunity of hearing contemplated uls. 235(2) of Cr. P. C. is
genuinely extended and is allowed to be exercised by the c
accused who stands convicted and is awaiting the sentence
- These two provisions do not stand in isolation but must be
construed as supplementing each other as ensuring the
constitutional guarantee of a just, fair and reasonable
procedure in the exercise of sentencing discretion by the court 0
- Sentence/Sentencing.
Sentence/Sentencing - Death Sentence - Evolution of
sentencing structure and the concept of mitigating
circumst{lnces in India relating to death penalty - Discussed:
Sentence/Sentencing - Changes in sentencing structure E
- Evolving standards of decency - Concept of dignity of the
individual - Paradigm shift in jurisprudence with gradual
transition of legal regime from 'rule of law' to 'due process of
law' - Constitution of India, 1950 - Article 21.
F
Appellant was charged with the offence of
committing the murder of two children- one aged 4Yz
years, and the other aged 8 months, in a brutal and
inhuman manner. The trial court convicted the appellant
under Section 302 IPC and imposed death sentence. On
G
appeal, the High Court confirmed the conviction and the
death sentence.
The question which arose for consideration in the
instant appeals was whether the Trial Court and the High
H
94
SUPREME COURT REPORTS (2011) 15 (ADDL.) S.C.R.
A Court had improperly balanced the consideration of
aggravating and mitigating circumstances and that if
mitigating circumstances are properly weighed in
accordance with the well-known judicial principles, the
death sentence awarded to the appellant cannot be
B sustained.
Disposing of the appeals, the Court
HELD: 1.1. The Code of Criminal Procedure, 1898
had section 376(5) which required that if an accused is
C convicted of an offence punishable with death and the
court sentences him with any punishment other than
death, the court shall, in its judgment, give reasons why
death sentence was not passed. This was during the
colonial days when the worth and dignity of human life
0 was not the central point in our jurisprudence. Even after
the coming of Constitution of India, the aforesaid
provision of section 367(5) of the 1898 Code continued
for some timg, [Paras 34, 35, 36] [110-B-F]
1.2. In 1955, the Code of Criminal Procedure
E (Amendment) Act, 1955 deleted the aforesaid section
367(5) of the 1898 Code. As a result of this amendment,
which came into effect from 1st January 1956, it was no
longer necessary for a Court to record in its judgment,
in case of conviction in connection with an offence
F punishable with death, any reason for not imposing the
death sentence. [Paras 37] [110-F-G]
1.3. The position substantially changed with the
introduction of a changed sentencing structure under
the present Code of Criminal Procedure, 1973. Section
G 309 of 1898 Code provided for the manner in which
judgment is to be given in cases tried by the Judge
himself. The 41st Law Commission Report (Volume I)
dated 24th September, 1969 proposed extensive changes
in 1898 Code. With regard to Section 309 of the 1898
H
RAJESH KUMAR v. STATE THROUGH GOVT. OF
95
NCT OF DELHI
Code, the Law Commission recommended that hearing
A
of the accused was most desirable before passing any
sentence against him. This recommendation was
accepted and incorporated while enacting Section 235
Cr.P.C in 1973 Code within Chapter XVIII of the same
under the heading "Trial before a Court of Sessions".
B
[Paras 46, 47, 49] [113-F; 114-A, D-F]
1.4. The most significant change brought about by
the incorporation of the recommendation of the Law
Commission, is the giving of an opportunity of hearing
to the accused on the question of sentence. This is the
C
incorporation of the great humanizing principle of natural
justice and fairness in procedure in the realm of
penology. The trial of an accused culminating in an order
of conviction essentially relates to the offence and the
accused under 1898 Code did not get any statutory D
opportunity to establish and prove in such trial the
mitigating and other extenuating circumstances relating
to himself, his family and other relevant factors which are
germane to a fair sentencing policy. This opportunity of
hearing at the post conviction stage, gives the accused
E
an opportunity to raise fundamental issues for
adjudication and effective determination by Court of its
sentencing discretion in a fair and reasonable manner.
[Para 51] [114-H; 115-A-C]
1.5. Similarly the corresponding provision of section
354of1973 Code was section 367 of the 1898 Code. Both
F
the sections 354 of 1973 Code and section 367 of 1898
Code have virtually the same title. In section 367 of 1898
Code, it was 'Language of judgment. Contents of judgment'
and in 1973 Code, title of section 354 is 'Language and
G
contents of judgme,nt' .. But Section 354 of 1973 Code is
substantially different from section 367 of 1898 Code as
there was no such provision as section 354(3) of 1973
Code in the 1898 Code. [Para 52] [115-D-E]
96
SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.
A
1.6. The importance of section 235(2) of 1973 Code
can hardly be overemphasized in a case where
prosecution demands the imposition of death penalty and
the court awards the same. [Para 53) [116-G-H]
1.7. The object of hearing under section 235(2) being
8 intrinsically and inherently connected with the sentencing
procedure, the provision of section 354(3) which calls for
recording of special reason for awarding death sentence
must be read conjointly with section 235(2) of 1973 Code.
Special reasons can only be validly recorded if an
C effective opportunity of hearing contemplated under
section 235(2) of Cr.P.C. is genuinely extended and is
allowed to be exercised by the accused who stands
convicted and is awaiting the sentence. These two
provisions do not stand in isolation but must be
D construed as supplementing each other as ensuring the
constitutional guarantee of a just, fair and reasonable
procedure in the exercise of sentencing discretion by the
court. These changes in the sentencing structure reflect
the "evolving standards of decency" that mark the
E progress of a maturing democracy and which is in accord
with the concept of dignity of the individual - one of the
core values in our Preamble to the Constitution. In a way
these changes signify a paradigm shift in our
jurisprudence with the gradual transition of our legal
F regime from 'rule of law' to the 'due process of law'.
[Paras 63, 64, 65 and 66) [120-D-H; 121-A]
1.8. Until the decision of this Court in Maneka Gandhi,
Article 21 of the Constitution was viewed by this Court
as rarely embodying the Diceyian concept of rule of law
G that no one can be deprived of his personal liberty by an
executive action unsupported by law. If there was a law
which provided some sort of a procedure it was enough,
to deprive a person of his life or person31 liberty. After the
H
RAJESH KUMAR v. STATE THROUGH GOVT. OF
97
NCT OF DELHI
decision in Maneka Gandhi which marks a watershed in
A
the development of constitutional law in our country, this
Court, for the first time, took the view that Article 21
affords protection not only against the executive action
but also against the legislation which deprives a person
of his life and personal liberty unless the law for B
deprivation is reasonable, just and fair. And it was held
that the concept of reasonableness runs like a golden
thread through the entire fabric of the Constitution and
it is not enough for the law to provide some semblance
of a procedure. The procedure for depriving a person of c
his life and personal liberty must be eminently just,
reasonable and fair and if challenged before the Court it
is for the Court to determine whether such procedure is
reasonable, just and fair and if the Court finds that it is
not so, the Court will strike down the same. Therefore the
0
'law' as interpreted under Article 21 by this Court is more
than mere 'lex'. It implies a due process, both
procedurally and substantively. [Paras 78, 79] [124-C-G]
1.9. The due process concept and the values of
Eighth Amendment of the U.S. Constitution, which have
E
been incorporated in our Constitution, are virtually
articulated through the procedural safeguards of section
235(2) read with section 354(3) of 1973 Code. This marks
the maturing of our criminal jurisprudence from the stage
of rule of law to the realm of due process of law. [Para
F
80] (124-H; 125-A-B]
Nawab Singh v. The State of Uttar Pradesh AIR 1954 SC
278; Vadive/u Thevar v. The State of Madras AIR 1957 SC
614: 1957 SCR 981; Jagmohan Singh v. The State of U.P.
(1973) 1 SCC 20: 1973 (2) SCR 541; Santa Singh v. State
G
of Punjab (1976) 4 SCC 190: 1977 (1) SCR 229; Bachan
Singh v. State of Punjab (1980) 2 SCC 684; Muniappan v.
State of Tamil Nadu (1981) 3 SCC 11: 1981 (3) SCR 270;
Al/auddin Mian and others v. State of Bihar (1989) 3 SCC 5:
1989 (2) SCR 498; A.K. Gopa/an v. State of Madras AIR (37)
H
98
SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A 1950 SC 27: 1950 SCR 88; Sakal Papers (P) Ltd. & ors. v.
Union of India AIR 1962 SC 305: 1962 SCR 842 Naresh
Shridhar Mirajkar v. State of Maharashtra and another AIR
1967 SC 1: 1966 SCR 744; Rustom Cavasjee Cooper v.
Union of India (1970) 1 SCC 248: 1970 (3) SCR 530;
B Maneka Gandhi v. Union of India and another (1978) 1 SCC
248: 1978 (2) SCR 621 and Sunil Batra v. Delhi
Administration & ors. (1978) 4 SCC 494: 1979 (1) SCR 392
- referred to.
William Henry Furman v. State of Georgia 408 US 238
C (1972) - referred to.
2.1. The Constitution Bench in Bachan Singh
construed the sentencing structure in Section 235(2) and
354(3) of 1973 Code through the prism of due process
0 concept and only then it upheld the constitutionality of
death sentence. In the impugned judgment, the High
Court failed to appreciate this ratio in Bachan Singh. The
High
Court while
discussing
the
mitigating
circumstances as against the aggravating circumstances
did not properly follow the principles discussed in Bachan
E Singh's case. [Paras 81, 82, 86] [125-C-D; 127-E-F]
2.2. The categories of mitigating and aggravating
circumstances are never close and no court can give an
exhaustive list of such circumstances. In the instant case
F State failed to show that the appellant is a continuing
threat to society or that he is beyond reform and
rehabilitation. On the other hand, it is clear from the
findings of the High Court th~t there is no evidence to
show that the accused is incapable of being reformed or
G rehabilitated in society and the High Court considered the
same as a neutral circumstance. The High Court was
clearly in error. The very fact that the accused can be
rehabilitated in society and is capable of being reformed,
since the State has not given any evidence to the
H contrary, is certainly a mitigating circumstance and which
RAJESH KUMAR v. STATE THROUGH GOVT. OF
99
NCT OF DELHI
the High Court failed to take into consideration. The High A
Court also failed to take into consideration that the
appellant is not a continuing threat to society in the
absence of any evidence to the contrary. Therefore, the
High Court, took a very narrow and a myopic view of the
mitigating circumstances about the appellant The High B
Court only considered that the appellant is a first time
offender and he has a family to look after. The High
Court's view of mitigating circumstance has been very
truncated and narrow insofar as the appellant is
concerned. [Paras 88, 89, 90] [128-G; 129-A, C-F]
C
2.3.
While
considering
the
aggravating
circumstances, the High Cc.urt appears to have been
substantially influenced with the brutality in the manner
of committing the crime. It is no doubt that the murder
was committed in this case in a very brutal and inhuman D
fashion, but that alone cannot justify infliction of death
penalty. The High Court fell, in this case, into an error by
approving the death sentence as it was swayed by the
cruel manner in which the two children were done to
death by the appellant. The mitigating circumstances in E
favour of the appellant, were not properly considered.
[Paras 91, 98] [129-G; 132-E]
·
2.4. The concept of 'rarest of rare' which has been
evolved in Bachan Singh by this Court is the
internationally accepted standard in cases of death F
penalty. Taking an overall view of the facts in these
appeals, it is clear that death sentence cannot be inflicted
on the appellant since the dictum of Constitution Bench
in Bachan Singh is that the legislative policy in Section
354(3) of 1973 Code is that for person convicted of G
murder, life imprisonment is the rule and death sentence,
an exception, and the mitigating circumstances must be
given due consideration. Bachan Singh further mandates
that In considering the question of sentence the Court
H
100
SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.
A must show a real and abiding concern for the dignity of
human life which must postulates resistance to taking life
through law's instrumentality. Except in 'rarest of rare
cases' and for 'special reasons' death sentence cannot
be imposed as an alternative option to the imposition of
B life sentence. In the facts of this case, the death sentence
imposed by the High Court cannot be sustained and the
death sentence imposed upon the appellant is
substituted by the sentence of imprisonment for life. The
conviction of the appellant is upheld and he is to serve
c out the life sentence. [Paras 101, 105-107] [132-G-H; 134C-G]
Bachan Singh v. State of Punjab (1980) 2 SCC 684 -
followed.
Dayanidhi Bisoi v. State of Orissa (2003) 9 SCC 310;
D Ravji alias Ram Chandra v. State of Rajasthan (1996) 2 SCC
175: 1995 (6) Suppl. SCR 195; Surja Ram v. State of
Rajasthan (1996) 6 SCC 271: 1996 (6) Suppl. SCR 783;
Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra (2009) 6 SCC 498: 2009 (9) SCR 90;
E Dharrnendrasinh alias Mansinh Ratansinh v. State of Gujarat
(2002) 4 sec 679: 2002 (3) SCR 193; Panchhi & ors. v.
State of U.P. (1998) 7 sec 177: 1998 (1) Suppl. SCR 40;
Haru Ghosh v. State of West Bengal (2009) 15 SCC 551 :
2009 (13) SCR 847 and Smt. Triveniben v. State of Gujarat
F (1989) 1 SCC 678: 1989 (1) SCR 509 - referred to.
Case Law Reference:
AIR 1954 SC 278
referred to
Para 38
G
1957 SCR 981
referred to
Para 39
1973 (2) SCR 541
referred to
Paras 41-45
408 us 238 (1972)
referred to
Para 44
1977 (1) SCR 229
referred to
Paras 54,55,
H
56,58
RAJESH KUMAR v. STATE THROUGH GOVT. OF
101
NCT OF DELHI
(1980) 2 sec 684
referred to
Paras 56,67,
A
68,71
(1980) 2 sec 684
followed
Paras 81,82,
84,85,86,
99,100,
B
101.,105
1981 (3) SCR 270
referred to
Para 58
1989 (2) SCR 498
referred to
Para 61
1950 SCR 88
referred to
Paras 68,78,
c
80
1962 SCR 842
referred to
Para 68
1966 SCR 744
referred to
Para 68
1970 (3) SCR 530
referred to
Paras 68, 75
c
1978 (2) SCR 621
referred to
Paras 68,69,
71,73,74,
75,77,78,
1979 (1) SCR 392
referred to
Para 75
E
(2003) 9 sec 310
referred to
Para 82
1995 (6) Suppl. SCR 195 referred to
Paras 82,83,
84
1996 (6) Suppl. SCR 783 referred to
Para 82
F
2009 (9) SCR 90
referred to
Para 84
2002 (3) SCR 193
referred to
Para 91
1998 (1) Suppl. SCR 40 referred to
Para 92
2009 (13) SCR 847
referred to
Paras 93, 94
G
1989 (1) SCR 509
referred to
Para 97
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 1871-1872 of 2011.
H
102
SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.
A
From the Judgment & Order dated 6.8.2009 of the High
Court of Delhi at New Delhi in Criminal Appeal No. 635 of
2007.
Trilok Nath Saxena, Vipin Kumar Saxena, Harish Chandra
Khar'banda, Krishna Kumar Bhati, Vimal Ray Verma, Vivek
B Kumar Singh and M.P. Shorawala for the Appellant.
c
H.P. Rawal, ASG, P.K. Dey, Anando Mukherjee, Anirudh
Sharma and Anil Katiyar for the Respondent.
The Judgment of the Court was delivered by
GANGULY, J.1. Leave granted.
2. These Criminal Appeals are preferred from the judgment
of conviction under section 302 of the Indian Penal Code
(hereinafter "IPC") and the penalty of death sentence, delivered
D on 6th August, 2009 by the High Court of Delhi in Death
Sentence Reference no. 2/2007 and Criminal Appeal no. 635/
2007, whereby the High Court upheld the conviction and
confirmed the penalty of the death sentence imposed by the
Additional Sessions Judge, Rohini Court in Session Case
E No.178/06.
3. This Court had issued notice on the limited question of
quantum of sentence. The facts and circumstances, which are
relevant to these appeals, are as under.
F
4. According to the prosecution, the duty officer in the
Police Control Room received a call from number 20056630
at 15:38 hours on 28.7.2003 informing him that a man had
entered a house in Subhash Nagar and had assaulted two
children and had locked the door of a room from inside.
G Another call was made to the Police Control Room from mobile
No. 9810458303 noting that the informant had informed that a
·man had murdered two children inside House No. 2/129
Subhash Nagar near Arya Samaj Temple.
5. Each time the duty officer at the police control room, on
H receipt of afore-noted information, relayed the information to
RAJESH KUMAR v. STATE THROUGH GOVT. OF
103
NCT OF DELHI [ASOK KUMAR GANGULY, J.]
the concerned police station i.e. P.S. Rajouri Garden, where
A
the duty constable recorded the said information by way of
entries in the daily diary register, being DD No. 11, Ex.PW-16/
A at 3:35 PM and DD No. 12, Ex.PW-16/B at 3:50 PM.
6. ASI Jagpal PW-22 was handed over a copy of both the .
DD entries and was deputed to investigate. He took along with
8
him HC Naresh PW-19 and Const. Sukhbir PW-24. The three
police officers reached House No. 2/129 Subhash Nagar. A
crowd had gathered outside the house. Mr. Bahadur Singh PW4 a resident of House No. 2/130 Subhash Nagar i.e. the
immediate neighbour and one Mr. Negi (not examined as a C
witness) were present in the gathering and told the police
officers that the assailant had locked himself in a room on the
second floor of House No. 2/129 Subhash Nagar. The officers
climbed up the staircase and reached the second floor and
knocked the door. The man inside did not oblige. The three
D
police officers had a peep inside through the ventilator above
the door and saw the body of a male child, smeared with blood
and the neck badly cut. Blood was splattered all over the room.
They had no option but to break open the "i:toor and apprehend
the man inside who was Rajesh Kumar, the appellant.
E
7. Inspector Ram Chander PW-32, the SHO of P.S.
Rajouri Garden, was given the information about a man killing
two children on the second floor of House No. 2/129 Subhash
Nagar. He reached the house and by that time the appellant
had been apprehended by ASI Jagpal Singh, HC Naresh and
F
Const. Sukhbir.
8. On learning that Harshit, the younger son had been
removed to Chanan Devi Hospital, Inspector Ram Chander
went to the hospital and learnt that Harshit was in an
G
unconscious state. He collected the MLC Ex.PW-8/A of Harshit
and returned to the spot.
9. Inspector Ram Chander recorded the statement Ex.PW1/A of Sangeeta Sethi and made an endorsement Ex.PW-32/
A on the same. He sent the same through Constable Kamal at
H
104
SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A 6.30 PM for registration of an FIR. HC Rajesh Tyagi PW-17,
the duty officer at P.S. Rajouri Garden, recorded the FIR
Ex.PW-17/A at 6:50 PM on the basis of the statement of
Sangeeta Sethi and sent a copy of the FIR back to the spot
with Constable Kamal. Constable Amarender PW-8 was
B handed over the FIR to be delivered to the Area Magistrate and
he left the police station at around 7:20 PM and returned to the
police station at 10:10 PM.
•
10. After the incident, Swanchetan, a Society for Mental
Health was informed by the police and they were requested to
C counsel the family. Dr. Raja! Mitra (P.W.-7), Director of
Swanchetan Society for Mental Health found the mother of the
children in a state of total shock and she was unable to speak.
Dr. Rajat Mitra then talked with the appellant and did not find
an abnormality in the behavior of the appellant wherefrom he
D could be certified as an insane person.
11. The investigation being complete, the police personnel
left for the police station. The appellant was formally arrested
as recorded in the arrest memo Ex.PW-32/F at 10:00 PM from
E the place of occurrence.
12. Unfortunately Master Harshit could not survive and died
the same night in the Hospital.
13. The appellant was charged under section 302 IPC for
committing the murder of two children namely, Anshul and
F Harshit.
14. At the trial, Sangeeta PW-1, the mother of the two
children, deposed that she was a housewife and was living on
the second floor of house No. 2/129, Subhash Nagar at the time
G of the occurrence. Her elder son was named Anshul and the
younger one was named Harshit. Their age was 4Y. years and
8 months respectively. The incident took place at around 3:00
PM on 28.7.2003 when she was present in her house and her
sons were sleeping in the bed room. Appellant came and asked
H for water. She gave him water. Appellant wanted a meal. She
RAJ ESH KUMAR v. STATE THROUGH GOVT. OF
105
NCT OF DELHI [ASOK KUMAR GANGULY, J.]
went to the kitchen and heard cries of Harshit. She returned and
A
picked up Harshit. Appellant told her to give the child to him
and cook meals for him. She gave her child to the appellant
and went to the kitchen. Her son cried continuously even in the
arms of the appellant and suddenly the crying stopped. She
went to the bed room and saw that her son was being held from
8
his legs by the appellant who was hitting the child on the floor.
Her other son was sleeping on the bed in the same room. She
snatched her son from the appellant and rushed to Pinki's
house and handed over her unconscious son to Pinki and
rushed back, by which time the appellant had bolted the door.
C
She raised an alarm. She heard her son crying Ma Ma ..
Sudqenly the cries died down. By that time her neighbour
Pritam Singh and Bahadur as also a few other persons
gathered. The police arrived and a police person climbed a
table and through a ventilator saw the dead body of her son
and the appellant standing nearby. They pushed and opened
D
the door. She saw her son with his throat slit. A piece of glass,
stained with blood, was lying on the chest of her son. The
dressing table glass was broken. The walls were stained with
blood.
15. PW-1 was cross-examined and she admitted that there
was no quarrel between her husband and the appellant qua the
demand of any money, but volunteered that the appellant used
to demand money from her husband.
E
16. Mukesh Sethi PW-2, .the husband of PW-1, deposed
F
that on the day of the incident i.e. 28.7.2003, he was residing
with his wife and children on the 2nd floor of house No. 2/219,
Subhash Nagar, and the appellant was the husband of his sister
Alka, and was unemployed for the last 2% to 3 years and during
this period the appellant used to demand money for setting up G
business and that he gave him Rs.15,000/- and Rs.20,000/- on
two occasions. 15-20 days prior to the date of the incident the
appellant had demanded more money, which he refused
because he did not have money to spare. On 28. 7.2003 at
H
106
SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.
A around 4-4:15 PM he was sitting in his other house at Rohini
and received a call from his wife who rang up from a
neighbour's house at 4:45 PM. He reached his house and saw
a crowd and the police. His wife was crying that her children
had been killed. His younger son had been removed to the
B hospital and the other son was lying dead inside the house.
17. PW-2 was cross-examined and he admitted that
relations between him and the appellant were normal. He
stated that he saw the appellant for the first time after the
incident in the police station only. He denied that the appellant
C was mentally sick.
18. The appellant did not lead any evidence in defence.
19. After the appreciation of evidence, the Trial Court
observed that the prosecution established the charges against
o the appellant beyond reasonable doubt. Consequently, the Trial
Court vide order-dated 12.03.2007 convicted the appellant
under section 302 IPC and vide order dated 24.03.2007
awarded death sentence to the appellant subject to the
confirmation of the High Court.
E
20. Consequently, a petition for confirmation of Death
Sentence bearing Death Sentence Ref. no. 2/2007 was filed
before the High Court
21. Being aggrieved the appellant also preferred a Criminal
F Appeal no. 635/2007 before the High Court.
22. By judgment dated 06th August 2009, the High Court
after re-appreciation of the entire evidence on record observed
that ~ is beyond reasonable doubt that the appellant committed
the murder of two children and upheld the conviction of the
G appellant under section 302 IPC. The High Court further
observed that the case falls in the category of rarest of rare
case, dismissed the Criminal Appeal filed by the appellant and
confirmed the death sentence imposed upon him.
H
23. The learned Counsel for the appellant submitted that
RAJESH KUMAR v. STATE THROUGH GOVT. OF
107
NCT OF DELHI [ASOK KUMAR GANGULY, J.]
the facts of this case do net put the case in the category of the
A
rarest of the rare cases, attracting the penalty of death. Listing
the mitigating circumstances in this case, the learned Counsel
urged that there are several of them. The first is that the
appellant is a first time offender. The second is that he has two
sons, a wife and a widowed mother to support. The third is the
B
young age of the appellant who was aged 37 years when he
committed the crime. The fourth is the chance of the appellant's
rehabilitation in the society being not ruled out. The fifth, which
is a corollary or the fourth is, that it cannot be said that the
appellant is a continuing threat to the society.
c
24. The learned Additional Solicitor General appearing on
behalf of the State urged that the facts and circumstances of
this case clearly bring it within the rarest of rare case and
warrants the imposition of death sentence. He argued that the
appellant killed two children, one of which was 8 months old
D
and the other was 4% years of age, who were obviously
unarmed and innocent and incapable of giving any provocation
to the appellant.
25. The learned Additional Solicitor General also
contended that the killing of children is always a heinous crime.
E
The evidence against the appellant is clinching and the
appellant has not suffered any remorse.
26. The learned Additional Solicitor General referred to the
report from Swanchetan, which is a society for mental health.
F
The said report reflects the opinion of Dr. Rajat Mitra (PW-7),
Director of Swanchetan, who examined the appellant after the
incident.
27. By placing reliance on the said report, the learned
Additional Solicitor General argued that the appellant did not
G
show any sign of remorse to Dr. Rajat Mitra, when he was
examined after the incident.
28. The learned Additional Solicitor General also referred
to report of All India Institute of Medical Sciences dated
H
108
SUPREME COURT REPORTS [2011] 15 (ADDL.} S.C.R.
A 27.05.2009. This report was prepared pursuant to the order of
the Delhi High Court dated 04.05.2009. The said Medical
Board examined the appellant on 27.05.2009. The Board
opined that the appellant is of sound mind and did not want to
discuss the issue of the nature of offence but informed the
B Doctor that he has to spend his life in prison. The Medical
Board opined that the appellant was mentally fit.
29. The learned Additional Solicitor General also drew the
attention of this Court to Question no. 138 in the examination
of appellant under section 313 of Criminal Procedure Code.
C Both the question and the answer are set out below:
D
E
F
"Q.138 Anything else you want to say?
A. I am unwell since childhood. I am on medicine since
then. The problem with me is that I fell anywhere while
walking. I also start shouting. I become unaware about
myself. My treatment was under going in jail and of late now
I have left my treatment, as doctor is not going to change
my medicine. The problem, which I was facing in the past
has re-surfaced. Even in the past while I use to drive my
eyes use to get closed of its own. Mukesh and his relations
know about my medlcal problems.
I do not know how Anshul and Harshit have expired.
I am innocent. I have been falsely implicated. My medical
documents have been torn apart by my wife and for that
reason out of having a sense of guilt she has not come to
see me even in jail. I cannot produce these medical
papers.
30. In the impugned judgment, the High Court also noted
G certain mitigating factors which are as follows:
H
"48 .... The first is that the appellant is a first time offender.
The second is that he has two sons, a wife and a widowed
mother to support. The third is the fact that financial
hardship created stress in the mind compelling the
RAJESH KUMAR v. STATE THROUGH GOVT. OF
109
NCT OF DELHI [ASOK KUMAR GANGULY, J.]
appellant to commit the crime. The fourth is the young age A
of the appellant who was aged 37 years when he
committed the crime. The fifth is the chance of the
appellant's rehabilitation in the society being not ruled out."
31. In para 79 of the impugned judgment, the High Court
has noted the aggravating circumstances. The first aggravating
B
circumstance which the High Court noted is the brutal,
diabolical and dastardly nature of assault by the appellant on
the two children. The second aggravating circumstance is the
trauma produced on the mother of children .. The third
aggravating circumstance is that the victims are innocent C ·
children. The fourth aggravating circumstance is breach of trust
by the appellant. The appellant wanted P.W.1, the mother of
the children, to cook food for him and the mother went to the
kitchen giving the younger child to the appellant, trusting that
no harm would be caused to the child but that trust was D
breached. The fifth aggravating circumstance was the close
relationship between the appellant and the victims. The sixth
aggravating circumstance, pointed out by the High Court, is the
motive of revenge of the appellant towards the children, as the
father of the children did not extend financial help to him. The E
seventh aggravating circumstance is the lack of remorse on
the part of the appellant. The eighth aggravating circumstance
is pre-meditation of the appellant in committing the crime and
the cruel weapon of offence used namely a piece of glass,
which was retrieved by breaking the mirror of the dressing
F
table.
32. The High Court in the impugned judgment while
balancing these circumstances confirmed the Death Sentence.
33. In so far as the plea of insanity is concerned, both the G
Trial Court and the High Court rejected the same. In fact no
such plea was taken by the appellant in the Trial Court. Before
this Court also the said plea of insanity has been taken halfheartedly. What has been primarily argued in this Court is that
the Trial Court and the High Court had improperly balanced the
H
110
SUPREME COURT REPORTS (2011) 15 (ADDL.) S.C.R.
A
consideration of aggravating and mitigating circumstances and
it has been urged that if mitigating circumstances are properly
weighed in accordance with the well-known judicial principles,
the death sentence awarded to the appellant cannot be
sustained.
B
34. In this connection, we may consider the evolution of
sentencing structure and the concept of mitigating
circumstances in India relating to death penalty. The Code of
Criminal Procedure, 1898 (hereinafter "1898 Code"), had
section 376(5) which required that if an accused is convicted
' C
of an offence punishable with death and the court sentences
him with any punishment other than death, the court shall, in its
judgment, give reasons why death sentence was not passed.
The provision of section 367(5) of 1898 Code reads as follows:
0
"(5) If the accused is convicted of an offence punishable
with death, and the court sentences him to any punishment
other than death, the court shall in its judgment state the
reason why sentence of death was not passed."
35. This was during the colonial days when the worth and
E dignity of human life was not the central point in our
jurisprudence.
F
36. Even after the coming of Constitution of India, the
aforesaid provision of section 367(5) of the 1898 Code
continued for some time.
37. In 1955, the Code of Criminal Procedure (Amendment)
Act, 1955 deleted the aforesaid section 367(5) of the 1898
Code. As a result of this amendment, which came into effect
from 1st January 1956, it was no longer necessary for a Court
G to record in its judgment, in case of conviction in connection
with an offence punishable with death, any reason for not
imposing the death sentence.
38. With the functioning of this Court under the Constitution,
several cases of death sentence came before this Court from
H
1950 onwards. But reference to extenuating or mitigating
RAJESH KUMAR v. STATE THROUGH GOVT. OF
111
NCT OF DELHI [ASOK KUMAR GANGULV. J.]
circumstances in a case of death penalty was made possibly
A
for the first time by this Court in the case of Nawab Singh v.
The State of Uttar Pradesh (AIR 1954 SC 278). In that case it
was urged that for delay of execution, the death sentence
should be commuted to one for transportation of life. This Court
rejected the said argument holding inter-alia that it is a matter
B
primarily for the consideration of local Government. This Court,
however, opined that in a proper case an inordinate delay in
the execution of sentences may be regarded as a ground for
commutation. However, this Court held that in the facts of that
case murder was a cruel and deliberate one and there were c
no extenuating circumstances.
39. After the amendment of 1898 Code, in the year 1955,
the first case relating to death sentence, which came before
this Court was that of Vadivelu Thevar v. The State of Madras
reported in AIR 1957 SC 614 wherein this Court made the
D
following pertinent observations:
"13 ...... If the court is convinced about the truth of the
prosecution story, conviction has to follow. The question
of sentence has to be determined, not with reference to
E
the volume or character of the evidence adduced by the
prosecution in support of the prosecution case, but with
reference to the fact whether there are any extenuating
circumstances which can be said to mitigate the enormity
of the crime. If the court is satisfied that there are such
mitigating circumstances, only then, it would be justified
F
in imposing the lesser of the two sentences provided by
law. In other words, the nature of the proof has nothing
to do with the character of the punishment. The nature of
the proof can only bear upon the question of conviction -
whether or not the accused has been proved to be guilty.
G
If the court comes to the conclusion that the guilt has been
brought home to the accused, and conviction follows, the
process of proof is at an end. The question as to what
punishment should be imposed is for the court to decide
H
112
SUPREME COURT REPORTS (2011) 15 (ADDL.) S.C.R.
A
in all the circumstances of the case with particular
reference to any extenuating circumstances ..... :
40. It is, therefore, clear that this Court was making a
distinction between its formation of opinion on the conviction
of the accused for the crime committed and its formation of
B opinion on the punishment to be imposed for the crime on
consideration of extenuating or mitigating circumstances.
41. The next decision of this Court rendered on the
constitutionality of death sentence was in the case of
C Jagmohan Singh v. The State of U.P. (1973) 1 SCC 20. The
Constitution Bench of this Court in Jagmohan Singh (supra)
examined whether total discretion can be conferred on the
judges in awarding death sentence, when the statute does not
provide any guidelines on how to exercise the same.
D
42. The decision in Jagmohan Singh (supra) was
rendered when the present Code of Criminal Procedure, 1973
was not in existence.
43. The Constitution Bench in Jagmohan Singh (supra)
held that the policy of the law giving a wide discretion to the
E judges in the matter of imposition of death sentence had its
origin in the impossibility of laying down any standards for
exercise of such discretion. However, the Court found that such
discretion is liable to be corrected by superior courts, but the
court did not find that conferment of such discretion on the
F judges was unconstitutional.
44. The Constitution Bench in Jagmohan Singh (supra)
however felt it difficult to follow the ratio of United States
Supreme Court in William Henry Furman v. State of Georgia
G {reported in 408 US 238 (1972)], as this Court found that our
Constitution does not have a provision like the Eig~th
Amendment of the Constitution of United States. This Court
also held in Jagmohan Singh (supra) that the test of
reasonableness cannot be applied by this Court in the same
H manner as is done by the United States Supreme Court in view
RAJESH KUMAR v. STATE THROUGH GOVT. OF
113
NCT OF DELHI [ASOK KUMAR GANGULY, J.)
of the existence of 'due process clause' in the United States
A
Constitution (see para 12 at page 27 of the report). The learned
Judges quoting from the commentary by Ratanlal's, Law of
Crimes, (Twenty-second edition), referred to certain mitigating
and aggravating circumstances in para 22 at page 32 of the
report, but opined that the said list is not exhaustive (para 23
B
at page 32 of the report).
45.