# MD. MANNAN @ ABDUL MANNAN v. STATE OF BIHAR

- **Citation:** [2019] 8 S.C.R. 266
- **Court:** Supreme Court of India
- **Decided:** 2019-02-14
- **Case number:** Criminal Appeal No.379 of 2009
- **Bench:** N. V. Ramana, Mohan M. Shantanagoudar, Indira Banerjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/md-mannan-abdul-mannan-v-state-of-bihar-34067
- **Pages:** 31

## Headnote

Code of Criminal Procedure, 1973: s.235(2) - Hearing on
question of sentence - Death sentence - Right of a convict - Held:
Opportunity should be given to a convict to bring on record
mitigating circumstances for reduction of the sentence and a balance
should be struck between the aggravating and the mitigating
circumstance - In the instant case, the petitioner did not get the
benefit of competent legal assistance - Trial Court also did not
make any attempt to elicit materials relevant to the imposition of
death sentence - No affidavit was called for - The question of
whether there were any mitigating circumstances was not addressed
by the Trial Court or the appellate courts - Even though the hearing
under s.235(2) on the question of sentence was fixed on 31.5.2007,
that is, two days after pronouncement of the judgment and order of
conviction of the petitioner, on 29.5.2007, the hearing was preponed
to 29.5.2007 itself after the petitioner was produced from jail custody
and death sentence was imposed - Preponement by the Trial Court
of hearing under s.235(2) at short notice, which is in effect, no
notice, appears to have denied the petitioner an effective hearing -
Hearing.
Review: Rape and murder of eight years old girl - Conviction
under ss.376 and 302 and death sentence - Concurrent finding of
trial court and High Court - Special leave petition against the same
dismissed - Review petition also dismissed - Second review petition
filed in view of Constitution Bench decision in Mohd. Arif case -
Held: Review petition, filed about eight years ago, was dismissed
by circulation on 24.08.2011 - Even thereafter, for almost three
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years the death sentence was not executed - The instant application
for reopening the review and hearing the same in Open Court, has
also been pending for over four years - In view of decision in
Mohd. Arif case, the petitioner is entitled to have the application for
review which was dismissed by circulation, reopened and heard in
open court.
Sentence/Sentencing: Death sentence - Prayer for
commutation - Rape and murder of eight years old girl - Conviction
under ss.376 and 302 IPC and death sentence - Concurrent finding
of trial court and High Court - Special leave petition against the
same dismissed - Review petition - Review restricted to question of
commutation of sentence - Held: Death sentence is imposed in the
rarest of rare cases, for which special reasons have to be recorded,
as mandated in s.354(3) CrPC - In deciding whether a case falls
within the category of the rarest of rare, the brutality, and/or the
gruesome and/or heinous nature of the crime is not the sole criterion
- The Court is to also take into consideration, the state of his mind,
his socio-economic background, etc. - Therefore, before imposing
the extreme penalty of death sentence, the Court would have to
satisfy itself that death sentence is imperative, as otherwise the
convict would be a threat to society - The Court has to further
satisfy itself that there is no possibility of reform or rehabilitation of
the convict - In this case, an eight year old innocent girl fell prey to
the carnal desire and lust of the petitioner - The conviction was
based on circumstantial evidence and extra judicial confession made
by the petitioner to the police in course of investigation - It was not
known whether there was any pre-meditation on the part of the
petitioner to murder the victim - No doubt, the crime was abhorrent,
but it is doubtful as to whether the crime committed by the petitioner
can be termed as "rarest of the rare" - The petitioner has for all
these years virtually been in solitary confinement - Medical evidence
revealed that he was not mentally sound - The mental health of the
petitioner at the time of execution is a relevant mitigating factor
which must be taken into consideration in the instant case -
Therefore, it is not appropriate to affirm the death sentence - The
death se

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 MD. MANNAN @ ABDUL MANNAN
v.
STATE OF BIHAR
(Review Petition (Criminal) No. 308 of 2011)
In
(Criminal Appeal No.379 of 2009)
FEBRUARY 14, 2019
[N. V. RAMANA AND MOHAN M. SHANTANAGOUDAR
AND INDIRA BANERJEE, JJ.]
Code of Criminal Procedure, 1973: s.235(2) - Hearing on
question of sentence - Death sentence - Right of a convict - Held:
Opportunity should be given to a convict to bring on record
mitigating circumstances for reduction of the sentence and a balance
should be struck between the aggravating and the mitigating
circumstance - In the instant case, the petitioner did not get the
benefit of competent legal assistance - Trial Court also did not
make any attempt to elicit materials relevant to the imposition of
death sentence - No affidavit was called for - The question of
whether there were any mitigating circumstances was not addressed
by the Trial Court or the appellate courts - Even though the hearing
under s.235(2) on the question of sentence was fixed on 31.5.2007,
that is, two days after pronouncement of the judgment and order of
conviction of the petitioner, on 29.5.2007, the hearing was preponed
to 29.5.2007 itself after the petitioner was produced from jail custody
and death sentence was imposed - Preponement by the Trial Court
of hearing under s.235(2) at short notice, which is in effect, no
notice, appears to have denied the petitioner an effective hearing -
Hearing.
Review: Rape and murder of eight years old girl - Conviction
under ss.376 and 302 and death sentence - Concurrent finding of
trial court and High Court - Special leave petition against the same
dismissed - Review petition also dismissed - Second review petition
filed in view of Constitution Bench decision in Mohd. Arif case -
Held: Review petition, filed about eight years ago, was dismissed
by circulation on 24.08.2011 - Even thereafter, for almost three
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years the death sentence was not executed - The instant application
for reopening the review and hearing the same in Open Court, has
also been pending for over four years - In view of decision in
Mohd. Arif case, the petitioner is entitled to have the application for
review which was dismissed by circulation, reopened and heard in
open court.
Sentence/Sentencing: Death sentence - Prayer for
commutation - Rape and murder of eight years old girl - Conviction
under ss.376 and 302 IPC and death sentence - Concurrent finding
of trial court and High Court - Special leave petition against the
same dismissed - Review petition - Review restricted to question of
commutation of sentence - Held: Death sentence is imposed in the
rarest of rare cases, for which special reasons have to be recorded,
as mandated in s.354(3) CrPC - In deciding whether a case falls
within the category of the rarest of rare, the brutality, and/or the
gruesome and/or heinous nature of the crime is not the sole criterion
- The Court is to also take into consideration, the state of his mind,
his socio-economic background, etc. - Therefore, before imposing
the extreme penalty of death sentence, the Court would have to
satisfy itself that death sentence is imperative, as otherwise the
convict would be a threat to society - The Court has to further
satisfy itself that there is no possibility of reform or rehabilitation of
the convict - In this case, an eight year old innocent girl fell prey to
the carnal desire and lust of the petitioner - The conviction was
based on circumstantial evidence and extra judicial confession made
by the petitioner to the police in course of investigation - It was not
known whether there was any pre-meditation on the part of the
petitioner to murder the victim - No doubt, the crime was abhorrent,
but it is doubtful as to whether the crime committed by the petitioner
can be termed as "rarest of the rare" - The petitioner has for all
these years virtually been in solitary confinement - Medical evidence
revealed that he was not mentally sound - The mental health of the
petitioner at the time of execution is a relevant mitigating factor
which must be taken into consideration in the instant case -
Therefore, it is not appropriate to affirm the death sentence - The
death sentence imposed on the petitioner is commuted to life
imprisonment, till his natural death, without reprieve or remission -
Administration of criminal justice - Hearing - Code of Criminal
Procedure, 1973 - s.354(3) - Penal Code, 1860 - ss.376 and 302.
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Code of Criminal Procedure, 1973: s.235(2) - For effective
hearing under s.235(2), the suggestion that the court intends to
impose death penalty should specifically be made to the accused,
to enable the accused to make an effective representation against
death sentence, by placing mitigating circumstances before the Court
- Penal Code, 1860 - ss.376 and 302 - Hearing.
Administration of criminal justice: Legal assistance to the
convict - Held: The legal assistance provided to the convict at every
stage including the stage of hearing on the question of sentence
has to be effective and even if the accused has remained silent, the
Court would be obliged and duty bound to elicit relevant factors -
Code of Criminal Procedure, 1973
Prisons: It is well recognised worldwide, that owing to the
difficult circumstances prevailing in prisons, such as, enforced
solitude, inadequate health care, loss of livelihood etc., prisoners
often develop mental illness after their admission into prison - The
relevant Prison Rules also recognise the phenomenon of postconviction mental illness and state that the execution of such persons
shall be deferred, pending orders of the Government - Administration
of criminal justice.
Mohd. Arif v. The Registrar of the Supreme Court (2014)
9 SCC 737: [2014] 11 SCR 1009; Bachan Singh v.
State of Punjab (1980) 2 SCC 684; Rajesh Kumar v.
State (through Govt. of NCT of Delhi) (2011) 13 SCC
706; Santa Singh v. State of Punjab (1976) 4 SCC
190: [1977] 1 SCR 229; Dagdu and Others v. State of
Maharashtra (1977) 3 SCC 68 : [1977] 3 SCR 636;
Machhi Singh & Others v. State of Punjab (1983) 3
SCC 470 : [1983] 3SCR 413; Santosh Kumar
Satishbhushan Bariyar v. State of Maharashtra
(2009) 6 SCC 498: [2009] 9 SCR 90; Ajay Pandit and
Another v. State of Maharashtra (2012) 8 SCC 43:
[2012] 10 SCR 70; Mohinder Singh v. State of Punjab
(2013) 3 SCC 294 : [2013] 3 SCR 90; Panchhi and
Others v. State of U.P. (1998) 7 SCC 177: [1998] 1
Suppl. SCR 40; Mukesh and Another v. State (NCT of
Delhi) and Others (2017) 3 SCC 717; Haru Ghosh v.
State of W.B.(2009) 15 SCC 551:[2009] (13) SCR 847;
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Lehna v. State of Haryana (2002) 3 SCC 76: [2002] 1
SCR 377; Shatrughan Chauhan and Anr. v. Union of
India & Ors. (2014) 3 SCC 1 : :[2014] 1 SCR 609;
Sunil Batra v. Delhi Administration & Ors. (1978) 4
SCC 494 : [1979] 1 SCR 392 ; Birju v. State of Madhya
Pradesh (2014) 3 SCC 421 : [2014] 1 SCR 1047;
Ramesh and Others v. State of Rajasthan (2011) 3 SCC
685: [2011] 4 SCR 585; Ram Deo Prasad v. State of
Bihar (2013) 7 SCC 725 : [2013] 6 SCR 108; Sushil
Sharma v. State (NCT of Delhi) (2014) 4 SCC 317:
[2013] 16 SCR 616; Swamy Shraddananda (2) @
Murali Manohar Mishra v. State of Karnataka (2008)
13 SCC 767 : [2008] 11 SCR 93; Sebastian @
Chevithiyan v. State of Kerala (2010) 1 SCC 58;
Navneet Kaur v. State (NCT of Delhi) and Another
(2014) 7 SCC 264; Mulla and Another v. State of U.P.
(2010) 3 SCC 508: [2010] 2 SCR 633 - relied on.
Case Law Reference
[2014] 11 SCR 1009
 relied on
Para 13
(1980) 2 SCC 684
 relied on
Para 16
(2011) 13 SCC 706
 relied on
Para 17
[1977] 1 SCR 229
 relied on
Para 20
[1977] 3 SCR 636
 relied on
Para 22
[1983] 3 SCR 413
 relied on
Para 23
[2009] 9 SCR 90
 relied on
Para 24
[2012] 10 SCR 70
 relied on
Para 25
[2013] 3 SCR 90
 relied on
Para 26
[1998] 1 Suppl. SCR 40 relied on
Para 27
(2017) 3 SCC 717
 relied on
Para 28
[2009] 13 SCR 847
 relied on
Para 29
[2002] 1 SCR 377
 relied on
Para 31
[2014] 1 SCR 609
 relied on
Para 34
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[1979] 1 SCR 392
 relied on
Para 35
[2014] 1 SCR 1047
 relied on
Para 37
[2011] 4 SCR 585
 relied on
Para 57
[2013] 6 SCR 108
 relied on
Para 58
[2013] 16 SCR 616
 relied on
Para 60
[2008] 11 SCR 93
 relied on
Para 62
(2010) 1 SCC 58
 relied on
Para 63
(2014) 7 SCC 264
 relied on
Para 73
[2010] 2 SCR 633
 relied on
Para 88
CRIMINAL APPELLATE JURISDICTION: Review Petition
(Criminal) No. 308 of 2011 in Criminal Appeal No. 379 of 2009
From the Judgment and Order dated 20.04.2011 of the Supreme
Court of India in Criminal Appeal No. 379 of 2009
Ms. Nitya Ramakrishnan, Shadan Farasat, Yash S. Vijay, Ninni
Susan Thomas, Saaduzzman, Ms.Shruti Narayan, Ms. Jahnavi Sindhu,
Advs. for the Petitioner.
Devashish Bharuka, Ravi Bharuka, Ms. Sarvshree, Justine George,
Aditya Singala, Manu Rajvanshi, M. Shoeb Alam, Advs. for the
Respondents.
The following Order of the Court was passed:
 O R D E R
1. This application is for reopening the Review Petition (Crl.)
No.308 of 2011 and for review of the final judgment and order dated
20.04.2011 passed by this Court dismissing Criminal Appeal No.379 of
2009 filed by the review petitioner and confirming his conviction, inter
alia, under Section 201, 366A, 376 and 302 of the Indian Penal Code
(IPC) and, inter alia, affirming the death sentence imposed on him
under Section 302 of the IPC.
2. It appears that the petitioner, a mason, was engaged at the
residence of the deceased victim's grand father. On 28.9.2004 at about
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2.00 p.m., the petitioner gave money to the victim to bring betel for him
from Hanuman Chowk. A little while later the petitioner also went to
Hanuman Chowk, picked up the victim, an eight year old girl, on his
bicycle and left talking with her. The victim and the petitioner were
seen together by witnesses.
3. The victim did not return home, whereupon frantic searches
were made. The victim was not found. It was learnt that the victim
had been last seen with the petitioner.
4. The officer in-charge of Bahera Police Station, under which
the village of the petitioner falls, was informed that the victim was missing.
In course of investigation the petitioner, who had earlier been identified
as the man with whom the victim had last been seen, riding on a bicycle,
allegedly made a confessional statement in the presence of witnesses,
confessing that he had raped and murdered the victim. The confessional
statement was signed by the petitioner.
5. The petitioner is alleged to have disclosed the place where he
had raped and killed the victim. It is the case of the prosecution, that on
the basis of information given by the petitioner, the Investigating Officer
went to the village Izaar Haat Bandh, where the dead body of the victim
was recovered from the spot shown by the petitioner, amidst wheat and
'arahar' fields.
6. The dead body was identified as that of the victim. The doctor
who conducted the post mortem opined that death was due to asphyxia
and haemorrhage as a result of strangulation within 8 to 24 hours from
the time of post mortem examination. The doctor also deposed that
upon examination the vaginal swab collected from the victim showed
"few intact spermatozoa". The medical evidence clearly established that
the victim had been raped and murdered. However no DNA analysis of
the spermatozoa was conducted by the prosecution.
7. By a judgment and order rendered on 29.5.2007 in Sessions
Trial No.220/2004 arising out of GR No. 325/2004 Manigachi P. S. Case
No.13 of 2004, the Additional District and Sessions Judge (Fast Track
Court) No.30, on consideration of the evidence on record, held the
petitioner guilty of charges under Sections 366A, 376, 302 and 201 of
IPC. On the same day after hearing the applicant on the question of
sentence, the Fast Track Court sentenced the petitioner to undergo
rigorous imprisonment for 10 years for charge under Section 366A IPC,
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rigorous imprisonment for life for charge under Section 376 IPC, rigorous
imprisonment for 7 years for charge under Section 201 IPC and death
sentence for charge under Section 302 IPC. All the sentences except
the sentence for the charge under Section 302 IPC were to run
concurrently till execution of the death sentence under Section 302 IPC,
whereby the convict was to be hanged by the neck till his death.
8. The learned Additional District and Sessions Judge, Fast Track
court directed that the proceedings of the case be transmitted to the
High Court of Judicature at Patna for confirmation of the death sentence.
The petitioner filed an appeal being Criminal Appeal (DB) No.963 of
2007 in the High Court against his conviction and sentence.
9. The death sentence reference being Death Reference No.6 of
2007 was heard by the Division Bench of the High Court along with the
Criminal Appeal (DB) No. 963 of 2007. The Division Bench, after
considering the materials on record, arrived at the finding that the charges
against the petitioner under Sections 366A, 376, 302 and 201 had been
proved beyond doubt and upheld the conviction. The appeal was
dismissed and the death penalty awarded to the petitioner by the Trial
Court was confirmed.
10. The petitioner filed a Special Leave Petition in this Court to
appeal against the judgment and order of the High Court. Leave was
duly granted.
11. The appeal being Criminal Appeal No.379 of 2009 was
dismissed by this Court, by the judgment and order dated 20.4.2011, of
which review has been sought, and the death sentence confirmed with
the observation that the case fell in the category of the rarest of rare
cases.
12. The petitioner filed a petition for review of the said judgment
and order dated 20.4.2011. The said review petition was dismissed by
circulation by the same two judges on 24.8.2011.
13. By a judgment and order dated 2.9.2014 in W.P. (Crl.) No. 77
of 2014 (Mohd. Arif v. The Registrar of the Supreme Court1), a
Constitution Bench of this Court held that, that review petitions in cases
of death sentences should be heard in Open Court, by a three-Judge
1(2014) 9 SCC 737
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Bench. The Constitution Bench specifically permitted the reopening of
review petitions in all cases where review petitions had been dismissed
by circulation.
14. There can be no doubt that in view of the judgment of this
Court in Mohd. Arif (supra) the petitioner is entitled to have the application
for review, which had been dismissed by circulation, reopened and heard
in Open Court.
15. In this petition for review we need not consider the merits of
the case, there being concurrent findings of the Trial Court, the High
Court and of this Court. This review is only restricted to the question of
whether death sentence should be commuted to life imprisonment.
16. In Bachan Singh vs. State of Punjab2, this Court, while
upholding the validity of death sentence held, that imprisonment for life
was the rule and death sentence an exception, to be imposed in the
"rarest of rare" cases, recording special reasons. In Bachan Singh
(supra), this Court in effect held that before exercising discretion to
impose the extreme penalty of death sentence, aggravating and mitigating
circumstances are required to be considered. Some of the mitigating
factors would be the extreme mental or emotional disturbance in which
the offence might have been committed, the possibility that the accused
would not be a continuing threat to society, the possibility of reformation
and rehabilitation of the accused, mental defect or disorder of the accused
etc.
17. In Rajesh Kumar vs. State (through Govt. of NCT of
Delhi)3, this Court observed:-
"83. The ratio in Bachan Singh has received approval by the
international legal community and has been very favourably
referred to by David Pannick in Judicial Review of the Death
Penalty: Duckworth (see pp. 104-05). Roger Hood and
Carolyn Hoyle in their treatise on The Death Penalty, 4th Edn.
(Oxford) have also very much appreciated the Bachan Singh
ratio (see p. 285). The concept of "rarest of rare" which has
been evolved in Bachan Singh by this Court is also the
internationally accepted standard in cases of death penalty.
2(1980) 2 SCC 684
3(2011) 13 SCC 706
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84. Reference in this connection may also be made to the right
based approach in exercising discretion in death penalty as
suggested by Edward Fitzgerald, the British Barrister. [Edward
Fitzgerald: The Mitigating Exercise in Capital Cases in Death
Penalty Conference (3-5 June), Barbados: Conference Papers
and Recommendations.] It has been suggested therein that
right approach towards exercising discretion in capital cases
is to start from a strong presumption against the death penalty.
It is argued that "the presence of any significant mitigating
factor justifies exemption from the death penalty even in the
most gruesome cases" and Fitzgerald argues:
"Such a restrictive approach can be summarised as follows:
The normal sentence should be life imprisonment. The death
sentence should only be imposed instead of the life sentence
in the 'rarest of rare' cases where the crime or crimes are of
exceptional heinousness and the individual has no significant
mitigation and is considered beyond reformation."
(Quoted in The Death Penalty, Roger Hood and Hoyle, 4th
 Edn., Oxford, p. 285.)
86. Taking an overall view of the facts in these appeals and
for the reasons discussed above, we hold that death sentence
cannot be inflicted on the appellant since the dictum of the
Constitution Bench in Bachan Singh is that the legislative
policy in Section 354(3) of the 1973 Code is that for a person
convicted of 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 must
show a real and abiding concern for the dignity of human
life which must postulate resistance to taking life through law's
instrumentality. Except in the "rarest of rare cases" and for
"special reasons" death sentence cannot be imposed as an
alternative option to the imposition of life sentence".
18. In Rajesh Kumar (supra), the accused was convicted of
assault and murder of two helpless children in the most gruesome manner.
This Court held that death sentence could not be inflicted, reiterating
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that life imprisonment was the rule and death sentence an exception
only to be imosed in the "rarest of rare cases" and for "special reasons"
when there were no mitigating circumstances.
19. Section 235 of the Criminal Procedure Code (Cr.P.C.), reads
as follows:-
"235. Judgment of acquittal or conviction.-(1) After hearing
arguments and points of law (if any), the Judge shall give a
judgment in the case.
(2) If the accused is convicted, the Judge shall, unless he
proceeds in accordance with the provisions of Section 360,
hear the accused on the question of sentence, and then pass
sentence on him according to law."
20. Section 235 (2) of the CrPC is not a mere formality. It is
obligatory on the part of the learned trial Judge to hear the accused on
the question of sentence and deal with it. To quote Bhagwati J. in Santa
Singh vs. State of Punjab4.
"2. ......This provision is clear and explicit and does not admit
of any doubt. It requires that in every trial before a court of
sessions, there must first be a decision as to the guilt of the
accused. The court must, in the first instance, deliver a
judgment convicting or acquitting the accused. If the accused
is acquitted, no further question arises. But if he is convicted,
then the court has to "hear the accused on the question of
sentence, and then pass sentence on him according to law".
When a judgment is rendered convicting the accused, he is,
at that stage, to be given an opportunity to be heard in regard
to the sentence and it is only after hearing him that the court
can proceed to pass the sentence.
3. This new provision in Section 235(2) is in consonance with
the modern trends in penology and sentencing procedures.
There was no such provision in the old Code. Under the old
Code, whatever the accused wished to submit in regard to the
sentence had to be stated by him before the argumentss
concluded and the judgment was delivered. There was no
separate stage for being heard in regard to sentence. The
4(1976) 4 SCC 190
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accused had to produce material and make his submissions
in regard to sentence on the assumption that he was ultimately
going to be convicted. This was most unsatisfactory. The
legislature, therefore, decided that it is only when the accused
is convicted that the question of sentence should come up for
consideration and at that stage, an opportunity should be
given to the accused to be heard in regard to the sentence.
Moreover, it was realised that sentencing is an important stage
in the process of administration of criminal justice- as
important as the adjudication of guilt-and it should not be
consigned to a subsidiary position as if it were a matter of
not much consequence. It should be a matter of some anxiety
to the court to impose an appropriate punishment on the
criminal and sentencing should, therefore, receive serious
attention of the court.
.....The reason is that a proper sentence is the amalgam of
many factors such as the nature of the offence, the
circumstances-extenuating or aggravating- of the offence, the
prior criminal record, if any, of the offender, the age of the
offender, the record of the offender as to employment, the
background of the offender with reference to education, home
life, sobreity and social adjustment, the emotional and mental
condition of 'the offender, the prospects for the rehabilitation
of the offender, the possibility of treatment or training of the
offender, the possibility that the sentence may serve as a
deterrent to crime by the offender or by others and the current
community need, if any, for such a deterrent in respect to the
particular type of offence. These are factors which have to
be taken into account by the court in deciding upon the
appropriate sentence, and, therefore, the legislature felt that,
for this purpose, a separate stage should be provided after
conviction when the court can hear the accused in regard to
these factors bearing on sentence and then pass proper
sentence on the accused.
4. ....The hearing on the question of sentence, would be
rendered devoid of all meaning and content and it would
become an idle formality, if it were confined merely to hearing
oral submissions without any opportunity being given to the
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parties and particularly to the accused, to produce material
in regard to various factors bearing on the question of
sentence, and if necessary, to lead evidence for the purpose
of placing such material before the court.
21. In Santa Singh (supra), Bhagwati, J. set aside the sentence
of death and remanded the case to the Sessions Court with a direction to
pass appropriate sentence after giving an opportunity to the petitioner in
the aforesaid case of being heard with regard to the question of sentence,
in accordance with the provisions of Section 235(2) CrPC as interpreted
in Santa Singh (supra).
22. In Dagdu and Others vs. State of Maharashtra5, a threeJudge Bench of this Court referred to Santa Singh (supra) and held
that the mandate of Section 235(2) CrPC had to be obeyed in letter and
spirit. Chandrachud, J. held:-
"79. ... The Court, on convicting an accused, must
unquestionably hear him on the question of sentence. But if,
for any reason, it omits to do so and the accused makes a
grievance of it in the higher court, it would be open to that
Court to remedy the breach by giving a hearing to the accused
on the question of sentence. That opportunity has to be real
and effective, which means that the accused must be permitted
to adduce before the Court all the data which he desires to
adduce on the question of sentence. The accused may exercise
that right either by instructing his counsel to make oral
submissions to the Court or he may, on affidavit or otherwise,
place in writing before the Court whatever he desires to place
before it on the question of sentence. The Court may, in
appropriate cases, have to adjourn the matter in order to
give to the accused sufficient time to produce the necessary
data and to make his contentions on the question of sentence.
That, perhaps, must inevitably happen where the conviction
is recorded for the first time by a higher court."
23. In Machhi Singh & Others vs. State of Punjab6, this Court
held:-
"38. ... (iv) A balance sheet of aggravating and mitigating
circumstances
has to be drawn up and in doing so the
5 (1977) 3 SCC 68
6(1983) 3 SCC 470
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mitigating circumstances have
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."
24. In Santosh Kumar Satishbhushan Bariyar vs. State of
Maharashtra7, this Court observed and held:-
"157. The doctrine of proportionality, which appears to be
the premise whereupon the learned trial Judge as also the
High Court laid its foundation for awarding death penalty
on the appellant herein, provides for justifiable reasoning
for awarding death penalty. However, while imposing any
sentence on the accused the court must also keep in mind the
doctrine of rehabilitation. This, considering Section 354(3)
of the Code, is especially so in the cases where the court is to
determine whether the case at hand falls within the rarest of
the rare case.
158. The reasons assigned by the courts below, in our opinion,
do not satisfy Bachan Singh test. Section 354(3) of the Code
provides for an exception. General rule of doctrine of
proportionality, therefore, would not apply. We must read the
said provision in the light of Article 21 of the Constitution of
India. Law laid down by Bachan Singh and Machhi Singh
interpreting Section 354(3) of the Code should be taken to
be a part of our constitutional scheme.
159. Although the Constitutional Bench judgment of the
Supreme Court in Bachan Singh did not lay down any
guidelines on determining which cases fall within the "rarest
of rare" category, yet the mitigating circumstances listed in
and endorsed by the judgment give reform and rehabilitation
great importance, even requiring the State to prove that this
would not be possible, as a precondition before the court
awarded a death sentence. We cannot therefore determine
punishment on grounds of proportionality alone. There is
nothing before us that shows that the appellant cannot reform
and be rehabilitated.
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162. Further indisputably, the manner and method of disposal
of the dead body of the deceased was abhorrent and goes a
long way in making the present case a most foul and
despicable case of murder. However, we are of the opinion,
that the mere mode of disposal of a dead body may not by
itself be made the ground for inclusion of a case in the "rarest
of rare" category for the purpose of imposition of the death
sentence. It may have to be considered with several other
factors.
25. In Ajay Pandit and Another vs. State of Maharashtra8,
this Court held:-
"47. Awarding death sentence is an exception, not the rule,
and only in the rarest of rare cases, the court could award
death sentence. The state of mind of a person awaiting death
sentence and the state of mind of a person who has been
awarded life sentence may not be the same mentally and
psychologically. The court has got a duty and obligation to
elicit relevant facts even if the accused has kept totally silent
in such situations. In the instant case, the High Court has not
addressed the issue in the correct perspective bearing in mind
those relevant factors, while questioning the accused and,
therefore, committed a gross error of procedure in not properly
assimilating and understanding the purpose and object
behind Section 235(2) CrPC."
26. In Mohinder Singh vs. State of Punjab9, this Court held:-
"22. The doctrine of "rarest of rare" confines two aspects
and when both the aspects are satisfied only then the death
penalty can be imposed. Firstly, the case must clearly fall
within the ambit of "rarest of rare" and secondly, when the
alternative option is unquestionably foreclosed. Bachan Singh
suggested selection of death punishment as the penalty of
last resort when, alternative punishment of life imprisonment
will be futile and serves no purpose.
23. In life sentence, there is a possibility of achieving
deterrence, rehabilitation and retribution in different degrees.
8 (2012) 8 SCC 43
9 (2013) 3 SCC 294
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But the same does not hold true for the death penalty. It is
unique in its absolute rejection of the potential of convict to
rehabilitate and reform. It extinguishes life and thereby
terminates the being, therefore, puts an end to anything to do
with life. This is the big difference between two punishments.
Thus, before imposing death penalty, it is imperative to
consider the same. The "rarest of rare" dictum, as discussed
above, hints at this difference between death punishment and
the alternative punishment of life imprisonment. The relevant
question here would be to determine whether life imprisonment
as a punishment would be pointless and completely devoid of
any reason in the facts and circumstances of the case. As
discussed above, life imprisonment can be said to be
completely futile, only when the sentencing aim of reformation
can be said to be unachievable. Therefore, for satisfying the
second aspect to the "rarest of rare" doctrine, the court will
have to provide clear evidence as to why the convict is not fit
for any kind of reformatory and rehabilitation scheme".
27. In Panchhi and Others vs. State of U.P.10, this Court
observed:-
"20. ... No doubt brutality looms large in the murders in this
case particularly of the old and also the tender-aged child. It
may be that the manner in which the killings were perpetrated
may not by itself show any lighter side but that is not very
peculiar or very special in these killings. Brutality of the
manner in which a murder was perpetrated may be a ground
but not the sole criterion for judging whether the case is one
of the 'rarest of rare cases' as indicated in Bachan Singh
case."
28. In Mukesh and Another v. State (NCT of Delhi) and
Others11, a three-Judge Bench of this Court considered the earlier
judgments of this Court referred to above and deemed it appropriate to
give opportunity to the accused to file affidavits to bring on record
mitigating circumstances for reduction of the sentence.
29. In Haru Ghosh v. State of W.B.12, this Court commuted death
sentence to life imprisonment in case of a dastardly murder of two
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11(2017) 3 SCC 717
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helpless persons for no fault of theirs. This Court, however, in commuting
death sentence took into consideration the following factors:-
i. There was no pre-mediation on the part of the accused;
ii.The act was on the spur of the moment;
iii. The accused was not armed with any weapon;
iv. It was unknown under what circumstances the accused had
entered the house of the deceased and what prompted him to assault the
boy; and
v. The cruel manner in which the murder was committed could
not be the guiding factor and the accused himself had two minor children.
30. In Haru Ghosh (supra), this Court observed, "....the cruel
manner in which the murder was committed and the subsequent
action on the part of the accused in severing the parts of the body
of the deceased, do not by themselves become the guiding factor in
favour of death sentence."
31. In Lehna v. State of Haryana13, this Court observed and
held that the mental condition of the accused which led to the assault
could not be ignored, though the same may not be relevant to judge
culpability. It is certainly a factor while considering the question of
sentence.
32. In the aforesaid case even though three lives had been lost by
reason of the crime, this Court modified the punishment by commuting
death sentence to life imprisonment, observing that there was no evidence
of any diabolic planning to commit the crime, though the act was cruel.
33. Learned counsel appearing on behalf of the applicant submitted
that since his arrest on 28.2.2004 the applicant has undergone about 15
years in custody and 11 years as a convict sentenced to death, lodged in
virtual solitary confinement in a single cell high security ward in Bhagalpur
Prison in Bihar.
34. In Shatrughan Chauhan and Anr. vs. Union of India &
Ors.14, this Court considered and discussed the possibility of condemned
convicts, who are sentenced to death developing mental disorder, upon
reference to relevant provisions of the U.P. Jail Manual and similar
provisions of other jail manuals. This Court observed:
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14 (2014) 3 SCC 1
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"86. The above materials, particularly, the directions of the
United Nations international conventions, of which India is
a party, clearly show that insanity/mental illness/schizophrenia
is a crucial supervening circumstance, which should be
considered by this Court in deciding whether in the facts and
circumstances of the case death sentence could be commuted
to life imprisonment. To put it clear, "insanity" is a relevant
supervening factor for consideration by this Court.
87. In addition, after it is established that the death convict is
insane and it is duly certified by the competent doctor,
undoubtedly, Article 21 protects him and such person cannot
be executed without further clarification from the competent
authority about his mental problems. It is also highlighted by
relying on commentaries from various countries that civilised
countries have not executed death penalty on an insane
person. .......... In view of the well-established laws both in
the national as well as international sphere, we are inclined
to consider insanity as one of the supervening circumstances
that warrants for commutation of death sentence to life
imprisonment."
35. In Shatrughan Chauhan (supra), this Court also referred to
Sunil Batra vs. Delhi Administration & Ors.15,and reiterated that if
solitary confinement was illegal, the same punishment could not be scuffled
into the legal system by naming it differently. If prolonged solitary
confinement of a death sentence convict is a ground for commutation of
death sentence, solitary confinement, in effect, on ground of high security
or otherwise would also be a ground for commutation of death sentence.
36. Counsel further submitted that the Trial Court has convicted
the petitioner and sentenced him to death considering the inhuman and
brutal nature of the crime alone. The findings of the Trial Court with
regard to the criminal antecedents is not based on any cogent materials.
The Trial Court merely recorded the submission of the public prosecutor
that the petitioner had been accused in another trial in which the petitioner
had "managed his acquittal in the garb of compromise"(para 29).
37. Citing the judgment of this Court in Birju vs. State of Madhya
Pradesh16 Counsel submitted, and rightly that only convictions which
have attained finality can be considered as "aggravating circumstances".
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38. Counsel submitted that the Trial Court did not give opportunity
to the petitioner to show mitigating circumstances, notwithstanding a
duty to hear the accused under Section 235(2) of the Code of Criminal
Procedure (Cr.PC) on the question of sentence.
39. As argued by learned counsel appearing on behalf of the
petitioner, the accused had the right to be provided with legal aid at all
stages, including the stage of consideration of the question of sentence.
After the conviction of the petitioner, he should have been given the
benefit of being accompanied by a social worker to guide and counsel
him and also to help him to get an effective hearing on the question of
sentence.
40. In this case, the petitioner was not accompanied by a social
worker. Furthermore the legal aid provided to the petitioner was
inadequate. The legal aid lawyer representing the applicant argued
against the conviction, but did not seek the opportunity to draw attention
of the Court to mitigating circumstances for imposition of sentence of
life imprisonment in place of death. He only submitted that the petitioner
had falsely been implicated.
41. For effective hearing under Section 235(2) of the Code of
Criminal Procedure, the suggestion that the court intends to impose death
penalty should specifically be made to the accused, to enable the accused
to make an effective representation against death sentence, by placing
mitigating circumstances before the Court. This has not been done.
The Trial Court made no attempt to elicit relevant facts. Nor did the
Trial Court give any opportunity to the petitioner the opportunity to file
an affidavit placing on record mitigating factors. As such the petitioner
has been denied an effective hearing.
42. Contrary to the dictum of this Court, inter alia, in Dagdu
(supra) and Santa Singh (supra) the petitioner was not given a real,
effective and meaningful hearing on the question of sentence under
Section 235(2) of the Cr.P.C. The death sentence imposed on the petitioner
is liable to be commuted to life imprisonment on this ground.
43. The records reveal that after the judgment and order of
conviction was pronounced on 29.5.2007, the matter was directed to be
put up on 31.5.2007 for hearing on the point of sentence. However, on
the same day i.e., 29.5.2007 itself the petitioner was produced from jail
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custody and death sentence was imposed. The order imposing the death
sentence is extracted hereinbelow for convenience:-
"26 Convict Md. Mannan @ Abdul Mannan produced from
jail custody.
27. Heard learned P.P and learned lawyer for the convict on
the point of passing sentence against the convict.
28. Learned lawyer for the convict has again repeated in his
submission that the convict has been falsely implicated in this
case.
29. On the other learned P.P. has firmly asserted that the guilt
of the convict in respect of the charges framed against him
has been proved beyond shadow of all reasonable doubts
which can only be treated as barbarous act and crime against
the whole society beyond imagination. It is also submitted
that the convict was an accused in another S.T. No.172/93
which was disposed by the Court of Learned District &
Sessions Judge, Darbhanga on 18.9.1993 in which the
convict managed his acquittal in the garb of compromise. It
is submitted by the learned P.P. to award maximum sentence
against the convict in this case.
30.