# SANGEET & ANR v. STATE OF HARYANA

- **Citation:** [2012] 13 S.C.R. 85
- **Court:** Supreme Court of India
- **Decided:** 2012-11-20
- **Case number:** Criminal Appeal Nos. 490-491 of 2011
- **Bench:** K.S. Radhakrishnan, Madan B. Lokur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sangeet-anr-v-state-of-haryana-28177
- **Pages:** 44

## Headnote

Sentence/Sentencing:
A
B
Death sentence - Award of - By courts below -
On
Conviction under provisions of /PC - On appeal held: In the C
facts of the case and in view of the uncertainty as to whether
the punishment should be life imprisonment or death
sentence, death sentence is reduced to sentence of life
imprisonment - Penal Code, 1860 - ss. 302, 307, 148.
D
Death sentence -
Grant of - Approach of court -
Approach of aggravating and mitigating circumstances while
granting death sentence needs a fresh look - Such approach
was not endorsed in *Bachan Singh's case, but still it is
adopted by courts - Aggravating circumstances relate to the
E
crime while mitigating circumstances relate to the criminal and
a balance sheet cannot be drawn up for comparing the two
as both are distinct and unrelated - Even though *Bachan
Singh's case intended 'principled sentencing', the sentencing
has become Judge centric' - Nature of crime continues to play
F
a more important role than the 'crime and criminal' - *Bachan
Singh case has not encouraged standardization and
categorization of crimes and even otherwise it is not possible
to categorize and standardize all crimes - Code of Criminal
Procedure 1973 - s. 354(3).
Remission of Sentence to a life convict - Consideration
for grant of remission is statutory right- Courts cannot restrain
the appropriate Government from granting remission or
restrain a convict to apply for remission - To prevent arbitrary
G
85
H
86
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A exercise of power to grant remission, legislature has built-in
procedural and substantive checks in Cr. P. C. -
Life
imprisonment means imprisonment for the life span of the
convict with procedural and substantive checks laid down in
Cr. P. C. for his early release - Before exercising powers of
8 remission u/s. 432 Cr.P. C., appropriate Government must
obtain the opinion of the presiding Judge of the convicting or
confirming court - Code of Criminal Procedure, 1973 - ss.
432 and 433A - Penal Code, 1860 - s. 45.
Code of Criminal Procedure 1973 - s. 432 - Application
C of - Discussed.
Six accused, including the appellants-accused were
convicted ulss. 302, 307, 148. 449 rlw s. 149 IPC and five
of the accused were convicted uls. 25 (1-8) of Arms Act,
o 1959. Appellants-accused were sentenced to death and
others were sentenced to life imprisonment. High Court
confirmed the judgment of trial court. In the present
appeal, notice was limited to the question of sentence.
E
Partly allowing the appeal, the Court
HELD: 1. In the present case, there is considerable
uncertainty on the punishment to be awarded in capital
offences - whether it should be life imprisonment or death
sentence. Due to this uncertainty, awarding a sentence
F of life imprisonment, in cases such as the present one is
not unquestionably foreclosed. More so when, in this
case, there is no evidence {contrary to the conclusion of
the High Court) that the body of one of the deceased was
burnt by appellant-accused 'S' from below the waist with
G a view to destroy evidence of her having been subjected
to sexual harassment and rape. There is also no evidence
{again contrary to the conclusion of the High Court) that
appellant-accused 'N' was a professional killer. Therefore,
the appeals are allowed to the extent that the death
H penalty awarded to the appellants is converted into a
SANGEET & ANR. v. STATE OF HARYANA
87
sentence of life imprisonment. The appellants should be A
awarded a life sentence, subject to the faithful
implementation of the provisions of Cr.P.C. [Paras 1, 81
and 82] [96-A-B; 128-C-E]
2.1 This Court has not endorsed the approach of 8
aggravating and mitigating circumstances in *Bachan
Singh case. However, this approach has been adopted
in several decisions. This needs a fresh look. In any
event, there is little or no uniformity in the application of
this approach. The conclusion of the Constitution Bench C
in *Bachan Singh case was that the sentence of death
ought to be given

## Text

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[2012] 13 S.C.R. 85
SANGEET & ANR.
v.
STATE OF HARYANA
(Criminal Appeal Nos. 490-491 of 2011)
NOVEMBER 20, 2012
[K.S. RADHAKRISHNAN AND MADAN B. LOKUR, JJ.]
Sentence/Sentencing:
A
B
Death sentence - Award of - By courts below -
On
Conviction under provisions of /PC - On appeal held: In the C
facts of the case and in view of the uncertainty as to whether
the punishment should be life imprisonment or death
sentence, death sentence is reduced to sentence of life
imprisonment - Penal Code, 1860 - ss. 302, 307, 148.
D
Death sentence -
Grant of - Approach of court -
Approach of aggravating and mitigating circumstances while
granting death sentence needs a fresh look - Such approach
was not endorsed in *Bachan Singh's case, but still it is
adopted by courts - Aggravating circumstances relate to the
E
crime while mitigating circumstances relate to the criminal and
a balance sheet cannot be drawn up for comparing the two
as both are distinct and unrelated - Even though *Bachan
Singh's case intended 'principled sentencing', the sentencing
has become Judge centric' - Nature of crime continues to play
F
a more important role than the 'crime and criminal' - *Bachan
Singh case has not encouraged standardization and
categorization of crimes and even otherwise it is not possible
to categorize and standardize all crimes - Code of Criminal
Procedure 1973 - s. 354(3).
Remission of Sentence to a life convict - Consideration
for grant of remission is statutory right- Courts cannot restrain
the appropriate Government from granting remission or
restrain a convict to apply for remission - To prevent arbitrary
G
85
H
86
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A exercise of power to grant remission, legislature has built-in
procedural and substantive checks in Cr. P. C. -
Life
imprisonment means imprisonment for the life span of the
convict with procedural and substantive checks laid down in
Cr. P. C. for his early release - Before exercising powers of
8 remission u/s. 432 Cr.P. C., appropriate Government must
obtain the opinion of the presiding Judge of the convicting or
confirming court - Code of Criminal Procedure, 1973 - ss.
432 and 433A - Penal Code, 1860 - s. 45.
Code of Criminal Procedure 1973 - s. 432 - Application
C of - Discussed.
Six accused, including the appellants-accused were
convicted ulss. 302, 307, 148. 449 rlw s. 149 IPC and five
of the accused were convicted uls. 25 (1-8) of Arms Act,
o 1959. Appellants-accused were sentenced to death and
others were sentenced to life imprisonment. High Court
confirmed the judgment of trial court. In the present
appeal, notice was limited to the question of sentence.
E
Partly allowing the appeal, the Court
HELD: 1. In the present case, there is considerable
uncertainty on the punishment to be awarded in capital
offences - whether it should be life imprisonment or death
sentence. Due to this uncertainty, awarding a sentence
F of life imprisonment, in cases such as the present one is
not unquestionably foreclosed. More so when, in this
case, there is no evidence {contrary to the conclusion of
the High Court) that the body of one of the deceased was
burnt by appellant-accused 'S' from below the waist with
G a view to destroy evidence of her having been subjected
to sexual harassment and rape. There is also no evidence
{again contrary to the conclusion of the High Court) that
appellant-accused 'N' was a professional killer. Therefore,
the appeals are allowed to the extent that the death
H penalty awarded to the appellants is converted into a
SANGEET & ANR. v. STATE OF HARYANA
87
sentence of life imprisonment. The appellants should be A
awarded a life sentence, subject to the faithful
implementation of the provisions of Cr.P.C. [Paras 1, 81
and 82] [96-A-B; 128-C-E]
2.1 This Court has not endorsed the approach of 8
aggravating and mitigating circumstances in *Bachan
Singh case. However, this approach has been adopted
in several decisions. This needs a fresh look. In any
event, there is little or no uniformity in the application of
this approach. The conclusion of the Constitution Bench C
in *Bachan Singh case was that the sentence of death
ought to be given only in the rarest of rare cases and it
should be given only when the option of awarding the
sentence of life imprisonment is "unquestionably
foreclosed". *Bachan Singh case, therefore, made two
very significant departures from **Jagmohan Singh case. D
The departures were: (i) in the award of punishment by
deleting any reference to the aggravating and mitigating
circumstances of a crime and (ii) in introducing the
circumstances of the criminal. Despite the legislative
change outlined in Section 354(3) Cr.P.C. viz. that for E
persons convicted of murder, "life imprisonment is the
rule and death sentence an exception" and *Bachan
Singh case discarding proposition (iv)( a) of ** Jagmohan
Singh case, this Court in ***Machhi Singh case revived the
"balancing" of aggravating and mitigating circumstances
F
through a balance sheet theory and this theory held the
field post ***Mach hi Singh case. [Paras 24, 25, 29 and 80]
[105;C-E; 107-E-F; 126-H; 127-A]
*Bachan Singh v. State of Punjab (1980) 2 SCC G
684;**Jagmohan Singh v. State of U.P. (1973) 1 SCC 20;
Swamy Shraddananda (2) vs. State of Kamataka (2008) 13
SCC 767: 2008 (11) SCR 93; Aloke Nath Dutta v. State of
West Bengal (2007) 12 SCC 230: 2006 (10) Suppl.
SCR 662; Santosh Kumar Satishbhushan Bariyar v. State of H
88
SUPREME COURT REPORTS
[2012) 13 S.C.R.
A
Maharashtra (2009) 6 SCC 498: 2009 (9) SCR 90; ***Machhi
Singh and Ors. v. State of Punjab (1983) 3 SCC 470:1983
(3) SCR 413 - referred to.
2.2 Aggravating circumstances relate to the crime
8
while mitigating circumstances relate to the criminal. A
balance sheet cannot be drawn up for comparing the two.
The considerations for both are distinct and unrelated.
The aggravating and mitigating circumstances approach
not only need a fresh look but the necessity of adopting
this approach also needs a fresh look in the light of the
C conclusions in *Bachan Singh case. Even though *Bachan
Singh case intended "principled sentencing", sentencing
has now really become judge-centric. This aspect of the
sentencing policy i.e. focus should be on 'crime and the
criminal', as introduced by the Constitution Bench in
D *Bachan Singh case, seems to have been lost in
transition. Despite *Bachan Singh case primacy still seems
to be given to the nature of the crime. The circumstances
of the criminal, referred to in *Bachan Singh appear to
have taken a bit of a back seat in the sentencing process.
E In the sentencing process, both the crime and the
criminal are equally important. [Paras 33, 34 and 80] [108G-H· 109-A-C· 127-8-C]
'
'
*Bachan Singh v. State of Punjab (1980) 2 SCC 684;
F
Swamy Shraddananda (2) v. State of Karnataka (2008) 13
SCC 767: 2008 (11) SCR 93; Santosh Kumar Satishbhushan
Bariyar v. State of Maharashtra. (2009) 6 SCC 498: 2009 (9)
SCR 90; B.A. Umesh v. Registrar General, High Court of
Karnataka (2011) 3 SCC 85:2011 (2) SCR 367; Sushi/
G Murmu v. State of Jharkhand (2004) 2 SCC 338: 2003 (6)
Suppl. SCR 702; Mohd. Chaman v. State (NCT of Delhi)
(2001) 2 SCC 28; Dilip Premnarayan Tiwari v. State of
Maharashtra (2010) 1 SCC 775:2009 (16) SCR 322;
Sebastian v. State of Kera/a (2010) 1 SCC 58; Rajesh Kumar
H
v. State (2011) 13 SCC 706; Amit v. State of Uttar Pradesh
SANGEET & ANR. v. STATE OF HARYANA
89
(2012) 4 SCC 107:2012 (1) SCR 1009; Santosh Kumar
A
Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC
498: 2009 (9) SCR 90; Ravji v. State of Rajasthan (1996) 2
SCC 175: 1995 (6) Suppl. SCR 195; Dilip Premnarayan
Tiwari v. State of Maharashtra (2010) 1 SCC 775: 2009
(16) SCR 322; Shivu v. Registrar General High Court of
B
Karnataka (2007) 4 SCC 713: 2007 (2) SCR 555; Rajendra
Pralhadrao Wasnik v. State of Maharashtra (2012) 4 SCC37: 2012 (2) SCR 225; Mohd. Mannan v. State of Bihar
(2011) 5 SCC 317: 2011 (5) SCR 518 -
referred to.
2.3 The standardization and categori21ation of crimes c
which was attempted in ***Machhi Singh case for the
practical application of the rarest of the rare case
principle, has not received further importance from
Supreme Court, although it is referred to from time to time.
This only demonstrates that though emphasis on 'crime
D
and criminal' in the development of a sound sentencing
policy is still alive, it is a little unsteady in its application,
despite *Bachan Singh case. Even otherwise it is not
possible to standardize and categorize all crimes. [Paras
52, 54 and 80] [114-A-B, G-H; 127-D-E]
E
*Bachan Singh v. State of Punjab (1980) 2 SCC
684;***Machhi Singh and Ors. v. State of Punjab (1983) 3
SCC 470:1983 (3) SCR 413 - referred to.
3.1 Some decisions delivered by this Court seems to
suggest that the remission power of the appropriate
Government has effectively been nullified by awarding
sentences of 20 years, 25 years and in some cases
without any remission. This is not permissible. This
Court (or any Court for that matter) cannot restrain the
G
appropriate Government from granting remission of a
sentence to a convict. The appropriate Government
cannot be told that it is prohibited from granting
remission of a sentence. Similarly, a convict cannot be
told that he cannot apply for a remission in his sentence,
F
H
90
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A whatever be the reason. It is true that a convict
undergoing a sentence does not have right to get a
remission of sentence, but he certainly does have a right
to have his case considered for the grant of remission.
The grant of remissions is statutory. However, to prevent
B its arbitrary exercise, the legislature has built in some
procedural and substantive checks in the statute. These
need to be faithfully enforced. [Paras 58, 59 and 80] [115H; 116-A-D; 127-E-F]
State of Haryana v. Mahender Singh (2007) 13 SCC 606:
C 2007 (11) SCR 932; State of Haryana v. Jagdish (2010) 4
SCC 216: 2010 (3) SCR 716 - relied on.
Dalbir Singh v. State of Punjab (1979) 3 SCC 745:1979
(3) SCR 1059; Swamy Shraddananda (2) v. State of
D Kamataka (2008) 13 SCC 767: 2008 (11) SCR 93 - referred
to.
3.2 Section 45 of IPC defines life as denoting the life
of a human being, unless the contrary appears from the
context. Therefore, when a punishment for murder is
E awarded u/s. 302 IPC, it must be imprisonment for life,
where life denotes the life of the convict or death. The
term of sentence spanning the life of the convict, can be
curtailed by the appropriate Government for good and
valid reasons in exercise of its powers u/s. 432 Cr.P.C.
F Broadly, this Section statutorily empowers the
appropriate Government to suspend the execution of a
sentence or to remit the whole or any part of the
punishment of a convict [sub-section (1)]. But, the statute
provides some inherent procedural and substantive
G checks on the arbitrary exercise of this power. [Para 61]
[117-A-C]
H
Samjuben Gordhanbhai Ko/i v. State of Gujarat (2010)
13 SCC 466: 2010 (12) SCR 247 - referred to.
SANGEET & ANR. v. STATE OF HARYANA
91
3.3 An exercise of power by the appropriate A
Government under sub-section (1) of Section 432 Cr.P.C.
cannot be suo motu for the simple reason that this subsection is only an enabling provision. The appropriate
Government is enabled to "override" a judicially
pronounced sentence, subject to the fulfillment of certain
B
conditions. Those conditions are found either in the Jail
Manual or in statutory rules. [Para 63) (119-D-F]
3.4 The statutory procedure uls. 432 Cr.P.C. seems
quite reasonable in as much as there is an application of
mind to the issue of grant of remission. It also eliminates C
"discretionary" or en masse release of convicts on
"festive" occasions since each release requires a caseby-case basis scrutiny. [Para 63) (120-A-B]
State of Haryana v. Mohinder Singh (2000) 3 SCC 394:
D
2000 (1) SCR 698 - referred to.
3.5 For exercising the power of remission to a life
convict, the Cr.P.C. places not only a procedural check
but also a substantive check. This check is through E
Section 433-A of the Cr.P .C. which provides that when the
remission of a sentence is granted in a capital offence,
the convict must serve at least fourteen years of
imprisonment. [Para 65) (120-D-E]
Gopal Vinayak Godse v. State of Maharashtra AIR 1961
F
SC 600: 1961 SCR 210; Maru Ram v. Union of India (1981)
1 SCC 107; Ashok Kumar v. Union of India (1991) 3 SCC
498: 1991 (2) SCR 858; Kishori Lal v. Emperor AIR 1945
PC 64; State of Madhya Pradesh v. Ratan Singh (1976) 3
SCC 470: 1976 SCR 552 - referred to.
G
3.6 There is a misconception that a prisoner serving
a life sentence has an indefeasible right to release, on
completion of either fourteen years or twenty years
imprisonment. The prisoner has no such right. A convict H
92
SUPREME COURT REPORTS
[2012) 13 S.C.R.
A undergoing life imprisonment is expected to remain in
custody till the end of his life, subject to any remission
granted by the appropriate Government under Section
432 Cr.P.C., which in turn is subject to the procedural
checks in that Section and the substantive check in
B Section 433-A Cr.P.C. [Para 74) [124-G-H; 125-A]
3.7 The application of Section 432 Cr.P.C. to a
convict is limited. A convict serving a definite term of
imprisonment is entitled to earn a period of remission or
even be awarded a period of remission under a statutory
C rule framed by the appropriate Government or under the
Jail Manual. This period is then offset against the term of
punishment given to him. In such an event, if he has
undergone the requisite period of incarceration, his
release is automatic and Section 432 Cr.P.C. will not even
D come into play. This Section will come into play only if
the convict is to be given an "additional" period of
remission for his release, that is, a period in addition to
what he has earned or has been awarded under the Jail
E
Manual or the statutory rules. [Para 75) [125-A-D]
3.8 In the case of a convict undergoing life
imprisonment, he will be in custody for an indeterminate
period. Therefore, remissions earned by or awarded to
such a life convict are only notional. In his case, to reduce
F the period of incarceration, a specific order u/s. 432
Cr.P.C. will have to be passed by the appropriate
Government. However, the reduced period cannot be
less than 14 years as per Section 433-A Cr.P.C. [Para 76)
[125-D-E]
G
3.9 What Section 302 IPC provides for, is only two
punishments - life imprisonment and death penalty. In
several cases, this Court has proceeded on the postulate
that life imprisonment means fourteen years of
incarceration, after remissions. The calculation of
H fourteen years of incarceration is based on another
SANGEET & ANR. v. STATE OF HARYANA
93
postulate, namely that a sentence of life imprisonment is
A
first commuted (or deemed converted) to a fixed term of
twenty years on the basis of the Karnataka Prison Rules,
1974 and a similar letter issued by the Government of
Bihar. Apparently, rules of this nature exist in other States
as well. Thereafter, remissions earned or awarded to a
B
convict are applied to the commuted sentence to work
out the period of incarceration to fourteen years. [Para 78]
[125-G-H; 126-A-C]
Swamy Shraddananda (2) v. State of Kamataka (2008)
C
13 SCC 767:2008 (11) SCR 93 - referred to.
3.10 This re-engineered calculation can be made only
after the appropriate Government artificially determines
the period of incarceration. The procedure apparently
being followed by the appropriate Government is that life
D
imprisonment is artificially considered to
be
imprisonment for a period of twenty years. It is this
arbitrary reckoning that has been prohibited in #Ratan
Singh case. A failure to implement #Ratan Singh case has
led this Court in some cases to carve out a special
E
category in which sentences of twenty years or more are
awarded, even after accounting for remissions. If the law
is applied meaning thereby that life imprisonment is
imprisonment for the life span of the convict, with
procedural and substantive checks laid down in the
F
Cr.P.C. for his early release the court would reach a
legally satisfactory result on the issue of remissions. This
makes an order for incarceration for a minimum period
of 20 or 25 or 30 years unnecessary. [Para 79] [126-C-F]
#State of Madhya Pradesh v. Ratan Singh (1976) Suppl.
G
3 SCC470:1976 Suppl. SCR 552 - referred to.
3.11 Remission can be granted under Section 432
Cr.P.C. in the case of a definite term of sentence. The
power under this Section is available only for granting
H
94
SUPREME COURT REPORTS
[2012) 13 S.C.R.
A "additional" remission, that is, for a period over and
above the remission granted or awarded to a convict
under the Jail Manual or other statutory rules. If the term
of sentence is indefinite (as in life imprisonment), the
power u/s. 432 Cr.P.C. can certainly be exercised but not
B on the basis that life imprisonment is an arbitrary or
notional figure of twenty years of imprisonment. [Para 80)
(127-F-H; 128-A]
3.12 Before actually exercising the power of
c remission under Section 432 Cr.P.C. the appropriate
Government must obtain the opinion (with reasons) of
the presiding judge of the convicting or confirming Court.
Remissions can, therefore, be given only on a case-bycase basis and not in a wholesale manner. [Para 80] [128D
A-8]
Case Law Reference:
(1980) 2 sec 684
Referred to
Para 29
(1973) 1 sec 20
Referred to
Para 29
E
2006 (10) Suppl. SCR 662
Referred to
Para 30
2009 (9) SCR 90
Referred to
Paras 30,
32 and 34
2008 (11) SCR 93
Referred to
Paras 30,32,
F
55,58 and 78
1995 (6) Suppl. SCR 195
Referred to
Para 34
2009 (16) SCR 322
Referred to
Para 35
G
2007 (2 ) SCR 555
Referred to
Para 36
2012 (2) SCR 225
Referred to
Para 37
2011 (5) SCR 518
Referred to
Para 38
2011 (2) SCR 367
Referred to
Para 42
H
2003 (6) Suppl. SCR 702
Referred to
Para 43
SANGEET & ANR. v. STATE OF HARYANA
95
(2001 > 2 sec 28
Referred to
Para 45
A
2009 (16) SCR 322
Referred to
Para 46
(2010) 1 sec 58
Referred to
Para 47
(2011) 13 sec 706
Referred to
Para 49
2012 (1) SCR 1009
Referred to
Para 50
B
1983 (3) SCR 413
Referred to
Para 52
2007 (11) SCR932
Relied on
Para 59
2010 (3) SCR 716
Relied on
Para 59
c
1979 (3) SCR 1059
Referred to
Para 60
2010 (12) SCR 247
Referred to
Para 62
2000 (1) SCR 698
Referred to
Para 64
1961 SCR 210
Referred to
Para 67
D
(1981) 1 sec 101
Referred to
Para 67
1991 (2) SCR 858
Referred to
Para 67
1976 Suppl. SCR 552
Referred to
Paras 70
E
and 73
AIR 1945 PC 64
Referred to
Para 72
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 490-491 of 2011.
F
From the Judgment & Order dated 21.07.2010 of the High
Court of Punjab & Haryana at Chandigarh in criminal appeal
No. 6-DB of 2010 and in Murder Reference No. 7 of 2009.
Shekhar Prit Jha, Vikarant Bhardwaj, Bipin Kumar Jha for
G
the Appellants.
Kamal Mohan Gupta, Sanjeev Kumar, Gaurav Teotia for
the Respondent.
The Judgment of the Court was delivered by
H
96
SUPREME COURT REPORTS
(2012] 13 S.C.R.
A
MADAN B. LOKUR, J. 1. In these appeals, this Court
issued notice limited to the question of the sentence awarded
to the appellants. They were awarded the death penalty, which
was confirmed by the High Court. In our opinion, the appellants
in these appeals against the order of the High Court should be
B awarded a life sentence, subject to the faithful implementation
of the provisions of the Code of Criminal Code, 1973.
The facts:
2. In view of the limited notice issued in these appeals, it
C is not necessary to detail the facts. However, it may be
mentioned that as many as six persons (including the
appellants) were accused of various offences under the Indian
Penal Code (for short the IPC) and the Arms Act, 1959. They
were convicted by the Additional Sessions Judge, Rohtak by
D his judgment and order dated 13th November, 2009 in Sessions
Case No. 47 of 2004/2009 of the offence of murder (Section
302 of the IPC), attempt to murder (Section 307 of the IPC),
rioting, armed with a deadly weapon (Section 148 of the IPC),
house trespass in order to commit an offence punishable with
E death (Section 449 of the IPC) read with Section 149 of the
IPC (every member of an unlawful assembly is guilty of an
offence committed in prosecution of a common object). Five
of the accused were convicted of an offence under Section
25(1-B) of the Arms Act, 1959. Except the appellants, all of
F them were given a sentence of rigorous imprisonment for life
and payment of fine. The appellants, as mentioned above, were
sentenced to death.
3. The Trial Judge found the accused guilty of having
committed the murder of Ranbir, Simla (his wife), Seema (wife
G of Amardeep) and Rahul the three-year-old child of Amardeep
and Seema and grandson of Ranbir.
4. The Trial Judge found that accused Ram Phal believed
that Amardeep's family had performed some black magic
H which led to the death of his (Ram Phal) son Ved Pal soon after
SANGEET & ANR. v. STATE OF HARYANA
97
[MADAN 8. LOKUR, J.]
his marriage. Apparently, with a view to take revenge, Ram Phal
A
and the other accused committed the crimes aforementioned.
5. The Trial Judge found that the bodies of Ranbir, Simla
(his wife) and Seema (wife of Amardeep) had bullet injuries and
other injuries inflicted by a sharp-edged weapon called 'Kukri'.
8
The body of Seema was also burnt from below the waist. As
far as Rahul (a three-year-old boy) is concerned the upper
portion of his head was blown off by a firearm injury. Amardeep
also had a grievous injury but he survived and was the star
witness for the prosecution. On these broad facts the Trial
C
Judge convicted the appellants and others.
6. Thereafter, the Trial Judge heard the convicts under
Section 235(2) of the Code of Criminal Procedure on the
question of sentence. In his brief statement, appellant Sandeep
stated that he is married and has a five-year-old daughter and
D
aged parents to look after. Appellant Narender also gave a
brief a brief statement that he is not married and has aged
parents to look after. The Trial Judge considered the judgments
of this Court, inter alia, in Bachan Singh v. State of Punjab,
(1980) 2 SCC 684 and Machhi Singh and Ors. v. State of E
Punjab, (1983) 3 SCC 470. Thereafter, by his order dated 18th
November, 2009 the Trial Judge handed down the sentences
mentioned above.
7. The Trial Judge found that the crime committed by the
F
appellants was brutal in nature. As far as Narender is
concerned he had blown off the upper portion of the head of
three-year-old Rahul, son of Amardeep by the use of a firearm.
As far as Sandeep is concerned, even after giving a gun shot
injury on the head of Seema he poured kerosene oil on her and
set her ablaze. Taking note of the fact that the entire family of G
Ranbir (except Amardeep) was wiped out by the accused in a
brutal and merciless manner, the Trial Judge held that the crime
committed by them fell in the category of the rarest of rare
cases, inviting the death penalty. The death sentence awarded
to the appellants was however, subject to confirmation by the
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A Punjab & Haryana High Court to which a reference was
separately made.
8. The Punjab & Haryana High Court by its Judgment and
Order dated 21st July, 2010 in Murder Reference No. 7 of 2009
8 confirmed the death sentence.
9. The High Court opined that the crime was committed
in a pre-meditated, cold-blooded, cruel and diabolic manner
while the victims were sleeping. The convicts were armed with
deadly weapons like firearms and kukris etc. which they used
C unhesitatingly and indiscriminately to commit murders and
cause a life threatening injury to Amardeep. It was held that
Seema's body was burnt by Sandeep from below the waist with
a view to destroy evidence of her having been subjected to
sexual harassment and rape. Narender was found to be a
o professional killer. It was held that the act of the appellants fell
in the category of rarest of rare cases and as such a death
penalty was warranted.
10. We heard the learned Legal Aid Counsel on behalf of
the appellants and record our appreciation for the keen interest
E taken by him in the case and the efforts put in. We also heard
learned counsel for the State and have gone through the record
as well as the statement given by the appellants under Section
235 (2) of the Criminal Procedure Code. We have given our
anxious consideration to the question of sentence to be
F awarded to the appellants.
Leading judgments on the death penalty:
11. Any discussion on the subject of death penalty should
actually commence with the Constitution Bench decision in
G Bachan Singh. However, it may be more appropriate to travel
back in time to Jagmohan Singh v. State of U.P. (1973) 1
sec 20 for the limited purpose of indicating an important
legislative change that had taken place in the meanwhile.
H
12. Jagmohan Singh was decided when the Code of
SANGEET & ANR. v. STATE OF HARYANA
99
[MADAN B. LOKUR, J.]
Criminal Procedure, 1898 (for short the old Code) was in force.
A
Section 367(5) of the old Code provided that if an accused
person is convicted of an offence punishable with death, and
he is sentenced to a punishment other than death, the Court
was required to state the reason why a sentence of death was
not passed. Section 367(5) of the old Code reads as follows:-
B
"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."
13. Bachan Singh was, however, heard and decided when
the Code of Criminal Procedure, 1973 (for short the Cr.P.C)
c
had come into force with effect from 1st April, 1974. The Cr.P.C
contained Section 354(3), which provided that for an offence
punishable with death, the first option for punishment would be
D
imprisonment for life (or imprisonment for a term of years) and
the second option would be a sentence of death. Section
354(3) of the Cr.P.C reads as follows:-
"When the conviction is for an offence punishable with
E
death or, in the alternative, with imprisonment for life or
imprisonment for a term of years, the judgment shall state
the reasons for the sentence awarded, and, in the case of
sentence of death, the special reasons for such sentence."
14. The Cr.P.C. effectively reversed the position as it
F
existed under the old Code and also placed a requirement that
if a sentence of death is awarded, the Court should record
special reasons for awarding that sentence.
15. In Bachan Singh, two issues came up for G
consideration before the Constitution Bench. The first issue
related to the constitutional validity of the death penalty for
murder as provided in Section 302 of the IPC and the second
related to "the sentencing procedure embodied in sub-section
(3) of Section 354 of the Code of Criminal Procedure, 1973".
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16. While answering the above issues, the following
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c
D
questions were framed for consideration:-
"(i) Whether death penalty provided for the offence of
murder in Section 302 of the Penal Code is
unconstitutional.
(ii) If the answer to the foregoing question be in the
negative, whether the sentencing procedure provided in
Section 354(3) of the Code of Criminal Procedure, 1973
(Act 2 of 1974) is unconstitutional on the ground that it
invests the court with unguided and untrammelled
discretion and allows death sentence to be arbitrarily or
freakishly imposed on a person found guilty of murder or
any other capital offence punishable under the Indian Penal
Code with death or, in the alternative, with imprisonment
for life."
17. Insofar as the first question is concerned, the
Constitution Bench answered it in the negative. As regards the
second question, the Constitution Bench referred to and
E considered Jagmohan Singh and culled out several
propositions from that decision. The Constitution Bench did not
disagree with any of the propositions, except to the extent of
tweaking proposition (iv)(a) and proposition (v)(b) in view of the
changed legislative policy. For the present, we are concerned
only with these two propositions. However for convenience, all
F the propositions culled out from Jagmohan Singh are
reproduced below:-
"(i) The general legislative policy that underlines the
structure of our criminal law, principally contained in the
G
Indian Penal Code and the Criminal Procedure Code, is
to define an offence with sufficient clarity and to prescribe
only the maximum punishment therefor, and to allow a very
wide discretion to the Judge in the matter of fixing the
degree of punishment.
H
SANGEET & ANR. v. STATE OF HARYANA
101
[MADAN B. LOKUR, J.]
With the solitary exception of Section 303, the same
A
policy permeates Section 302 and some other sections
of the Penal Code, where the maximum punishment is the
death penalty.
(ii)-(a). No exhaustive enumeration of aggravating or B
mitigating circumstances which should be considered
when sentencing an offender, is possible. "The infinite
variety of cases and facets to e,ach case would make
general standards either meaningless 'boiler plate' or a
statement of the obvious that no Jury (Judge) would need."
(referred to McGoutha v. California, (1971) 402 US 183). C
(b) The impossibility of laying down standards is at the very
core of the criminal law as administered in India which
invests the Judges with a very wide discretion in the matter
of fixing the degree of punishment.
D
(iii) The view taken by the plurality in Furman v. Georgia
(1972) 408 US 238 decided by the Supreme Court of the
United States, to the effect, that a law which gives
uncontrolled and unguided discretion to the Jury (or the
E
Judge) to choose arbitrarily between a sentence of death
and imprisonment for a capital offence, violates the Eighth
Amendment, is not applicable in India. We do not have in
our Constitution any provision like the Eighth Amendment,
nor are we at liberty to apply the test of reasonableness
F
with the freedom with which the Judges of the Supreme
Court of America are accustomed to apply "the due
process" clause. There are grave doubts about the
expediency of transplanting western experience in our
country. Social conditions are different and so also the
general intellectual level. Arguments which would be valid
G
in respect of one area of the world may not hold good in
respect of another area.
(iv)(a) This discretion in the matter of sentence is to be
exercised by the Judge judicially, after balancing all the
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c
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aggravating and mitigating circumstances of the crime.
(b) The discretion is liable to be corrected by superior
courts. The exercise of judicial discretion on well
recognised principles is, in the final analysis, the safest
possible safeguard for the accused.
In view of the above, it will be impossible to say t~at
there would be at all any discrimination, since crifillel as
crime may appear to be superficially the same but• the facts
and circumstances of a crime are widely qifferent. Thus
considered, the provision in Section 302, Penal Code is
not violative of Article 14 of the Constitution on the ground
that it confers on the Judges an unguided and uncontrolled
discretion in the matter of awarding capital punishment or
imprisonment for life.
(v)(a) Relevant facts and circumstances impinging on the
nature and circumstances of the crime can be brought
before the court at the preconviction stage, notwithstanding
the fact that no formal procedure for producing evidence
regarding such facts and circumstances had been
specifically provided. Where counsel addresses the court
with regar.d to the character and standing of the accused,
they are duly considered by the court unless there is
something in the evidence itself which belies him or the
Public Prosecutor challenges the facts.
(b) It is to be emphasised that in exercising its discretion
to choose either of the two alternative sentences provided
in Section 302 Penal Code, "the court is principally
concerned with the facts and circumstances whether
aggravating or mitigating, which are connected with the
particular crime under inquiry. All such facts and
circumstances are capable of being proved in accordance
with the provisions of the Indian Evidence Act in a trial
regulated by the CrPC. The trial does not come to an end
until all the relevant facts are proved and the counsel on
SANGEET & ANR. v. STATE OF HARYANA
103
[MADAN B. LOKUR, J.]
both sides have an opportunity to address the court. The
A
only thing that remains is for the Judge to decide on the
guilt and punishment and that is what Sections 306(2) and
309(2), CrPC purport to provide for. These provisions are
part of the procedure established by law and unless it is
shown that they are invalid for any other reasons they must
B
be regarded as valid. No reasons are offered to show that
they are constitutionally invalid and hence the death
sentence imposed after trial in accordance with the
procedure established by law is not unconstitutional under
Article 21"."(emphasis added in the judgment).
c
18. It will be seen from proposition (iv)(a) that Jagmohan
Singh laid down that discretion in the matter of sentencing is
to be exercised by the judge after balancing all the aggravating
and mitigating circumstances "of the crime".
D
19. Jagmohan Singh also laid down in proposition (v)(b)
that while choosing between the two alternative sentences
provided in Section 302 of the IPC (sentence of death and
sentence of life imprisonment), the Court is principally
concerned with the aggravating or mitigating circumstances
E
connected with the "particular crime under inquiry".
20. Since the focus was on the crime, we call this, for
convenience, Phase I of an evolving sentencing policy.
21. As mentioned above, while accepting all other
F
propositions laid down in Jagmohan Singh, the Constitution
Bench in Bachan Singh did not fully accept proposition (iv)(a)
and (v)(b). This is explained in paragraph 161 to paragraph 166
of the Report where it is specifically mentioned that these two
propositions need to be "adjusted and attuned" to the shift in
G
the legislative policy.
22. The Constitution Bench observed that under the old
Code, both the sentence of death and the sentence of
imprisonment for life provided under Section 302 of the IPC
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A could be imposed after weighing the aggravating and
mitigating circumstances of the particular case. However, in
view of Section 354(3) of the Cr.P.C. a punishment of
imprisonment for life should normally be imposed under
Section 302 of the IPC but a sentence of death could be
B imposed as an exception. Additionally, as per the legislative
requirement if a sentence of death is to be awarded, special
reasons need to be recorded. In a sense, the legislative policy
now virtually obviated the necessity of balancing the aggravating
and mitigating circumstances of the crime for the award of
c punishment in respect of an offence of murder (although
"aggravating and mitigating circumstances" are repeatedly
referred to in the judgment, including as "relevant circumstances"
that must be given "great weight"). Therefore, the Constitution
Bench (after a discussion in paragraphs 161 and 162 of the
0
Report) "adjusted and attuned" proposition (iv)(a) by deleting
the reference to "balancing all the aggravating and mitigating
circumstances of the crime" to read as follows:-
"(a) The normal rule is that the offence of murder shall be
punished with the sentence of life imprisonment. The court
E
can depart from that rule and impose the sentence of death
only if there are special reasons for doing so. Such
reasons must be recorded in writing before imposing the
death sentence."
F
23. The Constitution Bench also did not fully accept the
postulate in proposition (v)(b) that while making the choice of
sentence, including the sentence under Section 302 of the IPC,
the Court should be principally concerned with the
circumstances connected with the particular crime under inquiry
G (paragraph 163 of the Report). The Constitution Bench laid
down that not only the relevant circumstances of the crime
should be factored in, but due consideration must also given
to the circumstances of the criminal. Consequently, the
Constitution Bench re-formulated proposition (v)(b) to read as
follows: -
H
SANGEET & ANR. v. STATE OF HARYANA
105
[MADAN B. LOKUR, J.]
"(b) While considering the question of sentence to be
A
imposed for the offence of murder under Section 302 of
the Penal Code, the court must have regard to every
relevant circumstance relating to the crime as well as the
criminal. If the court finds, but not otherwise, that the
offence is of an exceptionally depraved and heinous
B
character and constitutes, on account of its design and the
manner of its execution, a source of grave danger to the
society at large, the court may impose the death
sentence."
24. The conclusion of the Constitution Bench under these
C
circumstances was that the sentence of death ought to be given
only in the rarest of rare cases and it should be given only when
the option of awarding the sentence of life imprisonment is
"unquestionably foreclosed".
25. Bachan Singh, therefore, made two very significant
departures from Jagmohan Singh. The departures were: {i) in
the award of punishment by deleting any reference to the
aggravating and mitigating circumstances of a crime and (ii)
in introducing the circumstances of the criminal. These
departures are really the crux of the matter, as far as we are
concerned in this case.
26. Bachan Singh effectively opened up Phase II of a
sentencing policy by shifting the focus from the crime to the
crime and the criminal. This is where Bachan Singh marks a
watershed in sentencing. But, how effective has been the
implementation of Bachan Singh?
Issue of aggravating and mitigating circumstances:
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27. In making the shift from the crime to the crime and the
criminal, the Constitution Bench in Bachan Singh looked at the
suggestions given by learned counsel appearing in the case.
These suggestions, if examined, indicate that in so far as
aggravating circumstances are concerned, they refer to the
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crime. They are:-
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"(a) if the murder has been committed after previous
planning and involves extreme brutality; or
B
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(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 such 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 Code of
Criminal Procedure, 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."
F In so far as mitigating circumstances are concerned, they refer
to the criminal. They are: -
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"(1) That the offence was committed under the influence
of extreme mental or emotional disturbance.
(2) The age of the accused. If 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.
SANGEET & ANR. v. STATE OF HARYANA
107
[MADAN B. LOKUR, J.]
(4) The probability that the accused can be reformed and
A
rehabilitated.