# SANTOSH KUMAR SATISHBHUSHAN BARIYAR v. " STATE OF MAHARASHTRA

- **Citation:** [2009] 9 S.C.R. 90
- **Court:** Supreme Court of India
- **Decided:** 2009-05-13
- **Case number:** Criminal Appeal No. 1478 of 2005
- **Bench:** S.8. Sinha, Cyriac Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/santosh-kumar-satishbhushan-bariyar-v-state-of-maharashtra-26179
- **Pages:** 93

## Headnote

)t
)
CODE OF CRIMINAL PROCEDURE, 1973;
c
Sections 306, 307 - Tender of pardon to accomplice -
Power to direct - Discussed - On the facts of the case Held:
The pardon granted by the Sessions Judge was legal and
.....
valid.
SENTENCING:
~
D
-
Death sentence - Rarest of rare cases - Special reasons
~·Mitigating factors - Discussed - On the facts of the case -
Held: There are no special reasons to record the death
penalty and the mitigating factors are sufficient to place it out
E of the rarest of rare category - Thus, it is not a case where
death penalty should be imposed - Instead of death penalty
appellant to undergo rigorous imprisonment for life - Code of
+-
Criminal Procedure, 1973, Sections 235(2) and 354(3) -
·-
Constitution of India, Articles 14, 21.
F
DOCTRINES:
Doctrine of Prudence - Doctrine of Proportionality -
Applicability of.
G
In these appeals, the principal questions which arose
for consideration were:
~· --
(i)
Whether the Sessions Judge acted illegally in
granting pardon to an accomplice (PW1 ); and
.....
H
90
I
SANTOSH KUMAR SATISHBHUSHAN BARIYAR v.
91
STATE OF MAHARASHTRA
i
(ii)
Whether the case falls under 'rarest of rare A
-~
cases' so as to enable the Courts below to
award death penalty.
Dismissing the appeals and reducing the death
sentence to rigorous imprisonment for life, the Court
B
:l<,
HELD: 1.1. The order of Sessions Judge dated 3rd
April, 2002 shows that the Judge not only applied his
mind on the application (Ext. P-7) for grant of pardon filed
by the Investigating Officer but also examined the
appellant by putting relevant questions to him. The c
Sessions Judge, therefore, did not pass the order dated
;.. ..,
3rd April, 2002 only on the basis of the purported
confessional statement made by PW-1 on 1st November,
2001. It was not done mechanically. If in law it was not
necessary for the Magistrate to forward a copy of the D
confessional statement made by PW-1 under Section 164
of the Code of Criminal Procedure or to record a separate
statement of the said witness for the purpose of
complying with the provisions of Section 306 of the Code
"
of Criminal Procedure, the question as to whether he had
E
retracted from his confession or not would not be of
much relevance as regards exercise of power by the
--t
~essions Judge under Section 307 of the Code. [Para 9]
·'
(126-A-D]
1.2. Magistrate in his evidence categorically opined
F
that PW-1 had told him that he had not signed the said
application retracting his confession. It may be that the
said fact was not borne out from the judicial records,
which were sent to the Sessions Judge with the order of
G
committal, but then there is no reason to disbelieve the
-
-•
statement of the Magistrate. [Para 9] (126-0-F]
1.3. If it is to be held that in each and every case
-
pardon can only be granted at the initial stage, the power
i
conferred upon the Sessions Judge to grant under H
92
SUPREME COURT REPORTS
[2009] 9 S.C.R.
>-
.. ,
A Section 307 of the Code of Criminal Procedure for all
...
intent and purport shall become otiose. [Para 9] [128-E-
'
F]
-
1.4. In the instant case, the order of the judge granting
B pardon to t~e Approver, is legal and valid. [Para 9] [128F-G]
Narayan Chetanram Chaudhary and Another v. State of
Maharashtra (2000) 8 sec 457, relied on.
c
Rampa/ Pithwa Rahidas and Others v. State of
Maharashtra 1994 Supp (2) SCC 73, distinguished.
2. For an effective compliance of sentencing
.. ..:
procedure under section 364(3) and section 236(2) Cr.P.C,
D sufficient discretion is a pre-condition. Strict channeling
of discretion would also go against the founding
principles of sentencing as it wm prevent the sentencing
court to identify and weigh various factors relating to the
crime and the criminal such as culpability, impact on the
society, gravity of offence, motive behind the crime etc.
E [Para 11] [129-F-G]
Bachan Singh v. State of Punjab (1980) 2 SCC 684,
relied on.
f-
,.,
F
Rajendra Prasad v. State of Uttar Pradesh (1979) 3 SCC
646; Saibanna v.

## Text

_Characters 0–39,636 of 174,240. This is a partial read: ask again with offset=39636 for what follows._

r-
[2009] 9 S.C.R. 90
(_
~
A
SANTOSH KUMAR SATISHBHUSHAN BARIYAR
v.
"
STATE OF MAHARASHTRA
(Criminal Appeal No. 1478 of 2005)
B
MAY 13, 2009
[S.8. SINHA AND CYRIAC JOSEPH, JJ.]
)t
)
CODE OF CRIMINAL PROCEDURE, 1973;
c
Sections 306, 307 - Tender of pardon to accomplice -
Power to direct - Discussed - On the facts of the case Held:
The pardon granted by the Sessions Judge was legal and
.....
valid.
SENTENCING:
~
D
-
Death sentence - Rarest of rare cases - Special reasons
~·Mitigating factors - Discussed - On the facts of the case -
Held: There are no special reasons to record the death
penalty and the mitigating factors are sufficient to place it out
E of the rarest of rare category - Thus, it is not a case where
death penalty should be imposed - Instead of death penalty
appellant to undergo rigorous imprisonment for life - Code of
+-
Criminal Procedure, 1973, Sections 235(2) and 354(3) -
·-
Constitution of India, Articles 14, 21.
F
DOCTRINES:
Doctrine of Prudence - Doctrine of Proportionality -
Applicability of.
G
In these appeals, the principal questions which arose
for consideration were:
~· --
(i)
Whether the Sessions Judge acted illegally in
granting pardon to an accomplice (PW1 ); and
.....
H
90
I
SANTOSH KUMAR SATISHBHUSHAN BARIYAR v.
91
STATE OF MAHARASHTRA
i
(ii)
Whether the case falls under 'rarest of rare A
-~
cases' so as to enable the Courts below to
award death penalty.
Dismissing the appeals and reducing the death
sentence to rigorous imprisonment for life, the Court
B
:l<,
HELD: 1.1. The order of Sessions Judge dated 3rd
April, 2002 shows that the Judge not only applied his
mind on the application (Ext. P-7) for grant of pardon filed
by the Investigating Officer but also examined the
appellant by putting relevant questions to him. The c
Sessions Judge, therefore, did not pass the order dated
;.. ..,
3rd April, 2002 only on the basis of the purported
confessional statement made by PW-1 on 1st November,
2001. It was not done mechanically. If in law it was not
necessary for the Magistrate to forward a copy of the D
confessional statement made by PW-1 under Section 164
of the Code of Criminal Procedure or to record a separate
statement of the said witness for the purpose of
complying with the provisions of Section 306 of the Code
"
of Criminal Procedure, the question as to whether he had
E
retracted from his confession or not would not be of
much relevance as regards exercise of power by the
--t
~essions Judge under Section 307 of the Code. [Para 9]
·'
(126-A-D]
1.2. Magistrate in his evidence categorically opined
F
that PW-1 had told him that he had not signed the said
application retracting his confession. It may be that the
said fact was not borne out from the judicial records,
which were sent to the Sessions Judge with the order of
G
committal, but then there is no reason to disbelieve the
-
-•
statement of the Magistrate. [Para 9] (126-0-F]
1.3. If it is to be held that in each and every case
-
pardon can only be granted at the initial stage, the power
i
conferred upon the Sessions Judge to grant under H
92
SUPREME COURT REPORTS
[2009] 9 S.C.R.
>-
.. ,
A Section 307 of the Code of Criminal Procedure for all
...
intent and purport shall become otiose. [Para 9] [128-E-
'
F]
-
1.4. In the instant case, the order of the judge granting
B pardon to t~e Approver, is legal and valid. [Para 9] [128F-G]
Narayan Chetanram Chaudhary and Another v. State of
Maharashtra (2000) 8 sec 457, relied on.
c
Rampa/ Pithwa Rahidas and Others v. State of
Maharashtra 1994 Supp (2) SCC 73, distinguished.
2. For an effective compliance of sentencing
.. ..:
procedure under section 364(3) and section 236(2) Cr.P.C,
D sufficient discretion is a pre-condition. Strict channeling
of discretion would also go against the founding
principles of sentencing as it wm prevent the sentencing
court to identify and weigh various factors relating to the
crime and the criminal such as culpability, impact on the
society, gravity of offence, motive behind the crime etc.
E [Para 11] [129-F-G]
Bachan Singh v. State of Punjab (1980) 2 SCC 684,
relied on.
f-
,.,
F
Rajendra Prasad v. State of Uttar Pradesh (1979) 3 SCC
646; Saibanna v. State of Karnataka (2005) 4 SCC 165 and
Mithu v. State of Punjab AIR 1983 SC 473 - r«llied on.
Furman v. Georgia, 408 U.S. 238 (1972); Reyes v. R.
(2002) UKPC 11 : 12 BHRC 219; Hughes, R. v. (Saint Lucia)
G (2002) UKPC 12; Fox v. The Queen (2002) 2 AC 284; Bowe
v. The Queen (2006) 1 WLR 1623 and Coard & Ors. v. The
• -
Attorney General (Grenada), (2007) UKPC 7, referred to.
\
3. It is accepted that rarest of rare case is to be
H determined in the facts and circumstance. of a given case
(
'(
....
SANTOSH KUMAR SATISHBHUSHAN BARIYAR v .
93
STATE OF MAHARASHTRA
i
and there is no hard and fast rule for that purpose. There
A
.--
are no strict guidelines. But a sentencing procedure is
suggested. This procedure is in the nature of safeguards
and has an overarching embrace of rarest of rare dictum.
Therefore, it is to be read with Article 21 and 14. [Para 12]
[133-A-C]
B
-'-,
Swamy Shraddananda @ Murali Manohar Mishra v.
State of Karantaka 2008 (10) SCALE 669, referred to.
I
mm'
4. Under section 235(2) and 354 (3) of the Criminal
Procedure Code, there is a mandate as to a full fledged c
bifurcated hearing and recording of "special reasons" if
the court inclines to award death penalty. In the specific
backdrop of sentencing in capital punishment, and th~t
the matter attracts constitutional prescription in full force,
+
it is incumbent on the sentencing court to overse,e
D
comprehensive compliance to both the provisions. A
scrupulous compliance of both provisions is necessary
such that an informed selection of sentence could be
based on the information collected and collated at this
-
stage. [Para 13] [133-C-E]
E
Santa Singh v. State of Punjab, AIR 1956 SC 526;
~
Malkiat Singh and Ors. v. State of Punjab, (1991) 4 SCC 341,;
r
Al/audin Mian- v. State of Bihar, AIR 1989 SC 1456;
Muniappan v. State of Tamil Nadu, (1981) 3 SCC 11';
F
Jumman Khan v. State of U.P, (1991) 1 SCC 752 and Anshad
and Ors. v. State of Kamataka, (1994) 4 SCC 381, referred
to.
5. The court must play a proactive role to record all
relevant information at this stage. Some of the information
G
-
...
relating to crime can be culled out from the phase prior
to sentencing hearing. This information would include,
aspects relating to the nature, motive and impact of crime,
culpability of convict etc. Quality of evidence adduced is
1
,....
also a relevant factor. [Para 14) [133-G-H; 134-A]
H
94
SUPREME COURT REPORTS
[2009] 9 S.C.R.
+----
A
Bachan Singh v. State of Punjab (1980) 2 SCC 684,
,.
relied on.
-.
"Law Commission's 48th Report", referred to.
B
6. "Rarest of rare cases" is an exceptionally narrow
opening provided in the domain of this negative precept.
This opening is also qualified by another condition in
form of "when the alternative option is unquestionably
,.Jc
foreclosed". Thus, in essence, rarest of rare dictum
imposes a wide-ranging embargo on award of death
c punishment, which can only be revoked if the facts of the
case successfully satisfy the double qualification viz. 1.
that the case belongs to the rarest of rare category 2. and
the alternative option of life imprisonment will just not
suffice in the facts of the case. Rarest of rare dictum
D serves as a guideline in enforcing section 354(3) and
+
entrenches the policy that life imprisonment is the rule
and death punishment is an exception. It is a settled law
of interpretation that exceptions are to be construed
narrowly. That being the case, the rarest of rare dictum
E -places an extraordinary burden on the court, in case it
,
I
se•ects death punishment as the favoured penalty, to
carry out an objective assessment of facts to satisfy the
exceptions ingrained in the rarest of rare dictum. The
~-
background analysis leading to the conclusion that the
case belongs to rarest of rare category must conform to
-.
F
highest standards of judicial rigor and thoroughness as
the norm under analysis is an exceptionally narrow
exception. A conclusion as to the rarest of rare aspect
with respect to a matter shall entail identification of
G aggravating and mitigating circumstances relating both
to the crime and the criminal. [Para 15] [135-C-G]
t
_,
Ravji alias Ram Chandra v. State of Rajasthan, (1996)
2 SCC 175; Shivaji@ Dadya Shankar A/hat v. The State of
Maharashtra, AIR 2009 SC 56; Mohan Anna Chavan v. State
H
---
SANTOSH KUMAR SATISHBHUSHAN BARIYAR v.
95
STATE OF MAHARASHTRA
i
of Maharashtra (2008) 11 SCC 113; Bantu v. The State of A
U.P., (2008) 11 SCC 113; Surja Ram v. State of Rajasthan,
,._
(1996) 6 SCC 271; Dayanidhi Bisoi v. State of Orissa, (2003)
9 SCC 310; State of U.P. v. Sattan @ Satyendra and Ors.,,
2009 (3) SCALE 394, referred to.
7 .1. Bachan Singh suggested selection of death
B
punishment as the penalty of last resort when, alternative
.....
punishment of life imprisonment will be futile and serves
no purpose, death punishment, qualitatively stands on a
~
very different footing from other types of punishments.
It is unique in its total irrevocability. Incarceration, life or c
otherwise, potentially serves more than one sentencing
aims. Deterrence, incapacitation, rehabilitation and
-..-
retribution - all ends are capable to be furthered in,
different degrees, by calibrating this punishment in light
D
of the overarching penal policy. 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 anything to do with the life.
This is the big difference between two punishments. , E
---4
Before imposing death penalty, therefore, it is imperative
to consider the same. Rarest of rare dictum, hints at this
...
difference between death punishment and the alternative
punishment of life imprisonment. The relevant question
1
here would be to determine whether life imprisonment as
F
a punishment will be pointless and completely devoid of '
reason in the facts and circumstances of the case? 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 G
exception 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.
This analysis can only be done with rigor when the court
H
\
•
96
SUPREME COURT REPORTS
[2009] 9 S.C.R.
i.-
A focuses on the circumstances relating to the criminal,
~
along with other circumstanc~s. This is not an easy
conclusion to be deciphered, but Bachan Singh sets the
..... ..,
bar very high by introduction of Rarest of rare doctrine.
[Para 16] [137 -0-H; 138-A-D]
' ·I
B
,_
7 .2. Bachan Singh while enunciating rarest of rare
doctrine, did not deal with the role and responsibility of
,._
{
sentencing court and the appellate court separately. For
I .
that matter, this court did not specify any review
•
standards for High Court and the Supreme Court. In that
A 1·
c event, all courts, be it trial court, High Court or this court,
I
are duty bound to ensure that the ratio laid down therein
f
~
is scrupulously followed. Same standard of rigor and·
I
fairness are to be followed by the courts. If anything,
.. ~
inverse pyramid of responsibility is applicable in death
0
penalty cases. [Para 17] [140-B-D]
,..
-
7.3. It has been observed, generally and more
specifically in the context of death punishment, that
sentencing is the biggest casualty in crimes of brutal and
E -heinous nature. Our capital sentencing jurisprudence is
f
thin in the sense that there is very little objective
discussion on aggravating and mitigating circumstances.
In most such cases, courts have only been considering
...
}i_
the brutality of crime index. There may be other factors
F which may not have been recorded. [Para 18] [140-F-H;
141-A]
··,
, 7.4. There is no consensus in the court on the use
of "social necessity" as a sole justification in death
punishment matters. The test which emanates from
G Bachan Singh in clear terms is that the courts must
engage in an analysis of aggravating and mitigating
circumstances with an open rnirid, relating both to crime
and the criminal, irrespective of the gravity or nature of
. .
.
crime under consideration. ·A dispassionate analysis, on
H the aforementioned counts, is a must. The courts while
•'
r
..
SANTOSH KUMAR SATISHBHUSHAN BARIYAR v.
97
STATE OF MAHARASHTRA
adjudging on life and death must ensure that rigor and
A
fairness are given primacy over sentiments and
emotions. [Para 18] (140-F-H; 141-A]
7.5. Article 14 and 21 are constitutional safeguards
and define the framework for State in its functions,
8
including penal functions. They introduce values of
institutional
propriety,
in
terms
of fairness,
reasonableness and equal treatment, challenge with
respect to procedure to be invoked by the State in its
dealings with people in various capacities, including as
C
a convict. The position is, if the State is precariously
placed to administer a policy within the confines of
Articles 21 and 14, it should be applied most sparingly.
This view flows from Bachan Singh and Constitution does
not permit to take a re-look on the capital punishment
policy an'd meet society's cry for justice through this
G
instrument. [Para 19] (146-8-D]
7.6. The fact that this Court is dealing with safeguards
entrenched in the Constitution should materially change
the way it look for reasons while awarding the death
E
punishment. The arguments which may be relevant for
sentencing with respect to various other punishments
may cease to apply in light of the· constitutional
safeguards which come into operation when the question
relates to extinguishment of life. If there are two . F
considerations, the one which has a constitutional origin
shall be favoured. [Para 19] [146-D-F]
7.7. The constitutional role of the judiciary also
mandates taking a perspective on individual rights at a
higher pedestal than majoritarian aspirations. To that G
extent this Court plays a countermajoritarian role. And
this part of debate is not only relevant in the annals of
judicial review, but also to criminal jurisprudence. [Para
19] [148-A-B]
H
98
SUPREME COURT REPORTS
[2009] 9 S.C.R.
A
7.8. Public Opinion may also run counter to the Rule
of law and constitutionalism. Bhagalpur Blinding case or
the recent spate of attacks on right to trial of the accused
in the Bombay Blast Case are recent examples. This
Court is also not oblivious to the danger of capital
B sentencing becoming a spectacle in media. If media trial
is a possibility, sentencing by media can not be ruled out.
[Para 19] [148-E-F]
7.9. Capital sentencing is one such field where the
safeguards continuously take strength from the
C Constitution, and on that end this Court is of the view that
public opinion does not have any role to play. In fact, the
case where there is overwhelming public opinion
favouring death penalty would be an acid test of the
constitutional propriety of capital sentencing process.
D [Para 19] [150-C-D]'
Bachan Singh v~ State of Punjab (1980) 2 SCC 684;
Panchhi v. State of U.P. (1998) 7 SCC 177; State of
Maharashtra v. Sindhi1 (1975) 1 SCC 647; Vashram
E Narshibhai Rajpara v. State of Gujarat (2002) 9 SCC 168; Om
Prakash v. State of Haryana, (1999) 3 SCC 19 and ·
Dharmendrasinh v. State of Gujarat, (2002) 4 SCC 679, relied
on.
F
West Virginia State Board of Education v. Barnette, 319
U.S. 624 (1943), referred to.
"
Michael Hough: "Sentencing and the Climate of Opinion
(1996, Criminal Law Review), referred to.
G
8.1. This court laid down rarest of rare dictum in
H
Bachan Singh and thereby endorsed a broad sentencing
threshold. It has been interpreted by courts in various
ways. It is important to note here that principled
application of rarest of rare dictum does not come in the
•
} .
SANTOSH KUMAR SATISHBHUSHAN BARIYAR v.
99
STATE OF MAHARASHTRA
way of individualized sentencing. With necessary room
A
for sentencing, consistency has to be achieved in the
manner in which rarest of rare dictum has to be applied
by courts. Bachan Singh expressly barred one time
enunciation of minute guidelines through a judicial
verdict. The court held that only executive is competent
B
to bring in detailed guidelines to regulate discretion. On
....
this count judicial restraint was advocated. But at the
sarne time, it actively relied on judicial precedent in
disciplining sentencing discretion to repel the argument
of arbitrariness and Article 14 challenge. An embargo on c
introduction of judicial guidelines was put therein but
organic evolution of set of principles on sentencing
through judicial pronouncements was not ruled out. This
is how precedent aids development of law in any branch
of law and capital sentencing can not be an exception to
D
-<I
this. [Para 20) [150-E-H; 151-A-B]
8.2. Sentencing discretion is also a kind of discretion
and shall be exercised judicially in the light of the
precedents. [P~ra 20) [151-8-C]
E
I
"
8.3. While dealing with a matter as to whether death
penalty should be awarded or not, although the court
ordinarily would look to the precedents, but, this
...
becomes extremely difficult, if not impossible. There is no
uniformity of precedents, to say the least. In most cases,
F
the death penalty has been affirmed or refused to be
affirmed without laying down any legal principle. [Para 23)
[155-A-B]
8.4. Even the balance-sheet of aggravating and
G
mitigating circumstances approach invoked on a case by
case basis has not worked sufficiently well so as to
remove the vice of arbitrariness from our capital
sentencing system. It can be safely said that the Bachan
Singh threshold of "rarest of rare cases" has been most
variedly and inconsistently applied by the various High
H
100
SUPREME COURT REPORTS
[2009] 9 S.C.R.
A Courts as also this court. At this point this Court wish to
.,
point out that the uncertainty in the law of ··capital
sentencing has special consequence as the matter
relates to death penalty - the gravest penalty arriving out
of the exercise of extraordinarily wide sentencing
B discretion, which is irrevocable in nature. This extremely
uneven application of Bachan Singh has given rise to a
state of uncertainty in capital sentencing law which
.~
clearly falls fou~ of constitutional due process and
equality principle. The situation is unviable ·as legal
c discretion which is conferred on the executive or the
judiciary is only sustainable in law if there is any
indication, either through law or precedent, as to the
scope of the discretion and the manner of its exercise.
There should also be sufficient clarity having regard to
D the legitimate aim of the measure in question. Constitution
of India provides for safeguards to give the individual
1--
ade.quate protection against arbitrary imposition of
criminal punishment. [Para 23] (157-A-E]
8.5. One cannot help but observe the global move
E away from the death penalty. Latest statistics show that
•'
138 nations have now abolished the death penalty in
;·
either law or practice (no executions for 10 years). Our
own neighbours, Nepal and Bhutan are part of these
;..
abolitionist nations while others including Philippines and
F South Korea have also recently joined the abolitionist
group, in law and in practice respectively. The United
Nations General Assembly adopted resolution 62/149
calling upon countries that retain the death penalty to
establish a worldwide moratorium on executions with a
G view to abolishing the death penalty. India is, however,
one of the 59 nations that retain the death penalty.
Credible research, perhaps by the Law Commission of
India or the National Human Rights Commission may
allow for an up to date and informed discussion and
H
SANTOSH KUMAR SATISHBHUSHAN BARIYAR v.
101
STATE OF MAHARASHTRA
debate on the subject. [Para 23] [157-F-H; 158-A-B]
A
Bachan Singh v. State of Punjab (1980) 2 SCC 684,
relied on.
·
Jagmohan Singh v. State of U.P., (1973) 1 SCC 20; Ram
Singh v. Sonia and Ors. 2007 (3) SCALE 106; Prajeet Kumar B
Singh v. State of Bihar 2008 (4) SCALE 442; Bantu v. State
of Uttar Pradesh 2008 (10) SCALE 336; State of U.P. v.
Sattan, 2009 (3) SCALE 394; Ujjagar Singh v. State of
Punjab, 2007 (14) SCALE 428; Amrit Singh v. State of
Punjab 2006 (11) SCALE 309; Bishnu Prasad Sinha and Anr.
C
v. State of Assam 2007 (2) SCALE 42; State of Maharashtra
v. Prakash Sakha Vasave and others, 2009 (1) SCALE 713;
Aloke Nath Dutt and Ors. v. State of West Bengal, 2006 (13)
SCALE 467; Swamy Shraddananda v. State of Karnataka
(Swamy Shraddananda - I) (2007) 12 SCC 288 and Machhi D
Singh v. State of Punjab, (1983) 3 SCC 470, referred to.
"Journal of the Indian Law Institute 1979" and a joint
report by the Amnesty International - India and People's
Union for Civil Liberties Report titled "Lethal Lottery: The
E
Death Penalty in India, A study of Supreme Court Judgments
in death penalty cases 1950-2006", referred to.
9.1. In one sense, the scope of Bachan Singh was
fully met when it practically declared death penalty
(procedurally and substantively) constitutional but the
F
Ben.ch went on to entrench an unprecedented
. jurisprudence
on
the
sentencing
front.
This
jurisprudence, of which Rarest of rare dictum is the ,
central part, forms the bed rock of death penalty
jurisprudence. The way ahead shown by Bachan Singh .G
is not merely in compliance of statutory safeguards
under section 354(3) and section 235(2) but also of Rarest
of rare dictum. Therefore, the overall legislative scheme
on death penalty was cleared of constitutional challenge
H
102
SUPREME COURT REPORTS
[2009] 9 S.C.R.
A
only after it was conjoined with the Rarest of rare di~tum.
[Para 24]
9.2. On a deeper reading· of Bachan Singh it becomes
clear thatthe court was operating under two fundamental
8
constraints while dealing with the constitutionality
challenge. Firstly, death penalty is mentioned in the
Constitution (for instance under Article 161 and Article
72(1)(c). Constitutional recognition wa.s taken to be a
primary signal for the legitimacy for section 302.
Secondly, owing to separation of power doctrine, the
C court took a deferential view towards section 354(3)
which was brought in to discipline the courts on death
penalty by making life imprisonment the rule and death
penalty exception. Laboring under the aforementioned
constraints, the death penalty was held constitutional.
D This affirmative response to constitutionality of death
penalty presented another complicated challenge which
related to administration of death penalty or in other
words, sentencing of capital punishment. This has been
universally con_sidered as a vexed question of law and
E
practice and has not been satisfactorily dealt with in any
jurisdiction so far. [Para 24] [159-8-D]
F
Bachan Singh v. State of Punjab (1980) 2 SCC 684,
relied on.
Ram Deo Chauhan v. State of Assam (2001) 5 SC 714
and State of Punjab v: Prem Sagar and Ors. JT 2008 (7) SC
66, referred to.
10.1. Justice must be the first virtue of the law of
G sentencing. A sentencing court must consider itself to be
a "forum of principle". The central idea of such a forum
is its continuing commitment to inhere a doctrinal
approach around a core normative idea. "Principled
reasoning" flowing from judicial precedent or legislation
H
.A
)
SANTOSH KUMAR SATISHBHUSHAN BARIYAR v.
103
STATE OF MAHARASHTRA
is the premise from which the courts derive the power.
A
The movement to preserve substantial judicial discretion
to individualize sentences within a range of punishments
also has its basis in the court's ability to give principled
reasoning. [Para 25] [161-A-C]
R. v. Willaert (1953), 105 C.C.C. 172 (Ont. C.A.),
referred to.
B
10.2. The sentencing process, based on precedents
around Bachan Singh should help to determine specific,
,
deserved sentences in particular cases. The reason as C
to why questions of justice play such an important part
in the distribution of capital punishment, lies in the
special nature of capital punishment itself. Distributive
justice is a relative notion: one can never determine
whether one has received one's fair share except by O
comparison with that which has been allocated to others.
Both questions are intertwined. [Para 25] [162-b-F]
Bachan Singh v. State of Punjab (1980) 2 SCC 684,
relied on.
Ronald Dworkin, The Forum of Principle 56 NYU L. Rev.
469 (1981 ); Von Hirsch and Andrew Ashworth, The
Sentencing Theory Debate:Convergence in Outcomes,
Divergence in Reasoning Proportionate Sentencing:
E
Exploring The Principles, Oxford University Press, 2005
F
Jeremy Bentham, An Introduction to the Principles of Morals
and Legislation, in A Fragment of Government with An
Introduction to the Principles of Morals and Legislation 281
(1948) and Marvin E. Frankel, Lawlessness in Sentencing, 41
U. Cin. L. Rev. 1 (1972), referred to.
G
11.1. When the ·court is faced with a capital
sentencing case, a comparative analysis of the case
before it with other purportedly similar cases would be
in the fitness of the scheme of the Constitution.
H
104
SUPREME COURT REPORTS
[2009] 9 S.C.R.
A Comparison will presuppose an identification of a pool
of equivalently circumstanced capital defendants. The
gravity, nature and motive relating to crime will play a role
in this analysis. Next step would be to deal with th.e
subjectivity involved in capital cases. The imprecision of
B the identification of aggravating and mitigating
circumstances has to be minimized. It is to be noted that
the mandate of equality clause applies to the sentencing
process rather than the outcome. The comparative review
must be undertaken not to channel the sentencing
C discretion available to the courts but to bring in
consistency in identification of various relevant
circumstances. [Para 26] (166-0-G]
11.2. The aggravating and· mitigating circumstances .
have to be separately identified under a rigorous
D measure. Bachan Singh, when mandates principled
precedent based sentencing, compels careful scrutiny of
mitigating circumstances and aggravating circumstances
and then factoring in a process by which aggravating and
mitigating .circumstances appearing from the pool of
E comparable cases can be compared. The weight which
is accorded by the court to particular aggravating and
mitigating circumstances may vary from case to case in
the name of individualized sentencing, but at the same
time reasons for apportionment of weights shall be
F forthcoming. Such a comparison may point out
excessiveness as also will help repel arbitrariness,
objections inJuture. A sentencing hearing, comparative·
review of cases and similarly aggravating and mitigating
circumstances analysis can only be given a go by if the
G sentencing court opts for a life imprisonment. [Para 26]
f 166-G-H; 167-A-D].
.12.1. Right to life, in its barest of connotation would
imply right to mere survival. In this form, right to life is the
most fundamental of all rights. Consequently a
H
'
\
mlll!"
SANTOSH KUMAR SATISHBHUSHAN BARIYAR v.
105
STATE OF MAHARASHTRA
j
punishment which aims at taking away life is the gravest
A
•
punishment. Capital punishment imposes. a limitation on
the essential content of the fundamental right to life,
eliminating it irretrievably. This Court realizes the absolute
nature of this right, in the sense that it is a source of all
other rights. Other rights may be limited, and may even
B
be withdrawn and then granted again, but their ultimate
limit is to be found in the preservation of the right to life.
Right to life is the essential content of all rights under the.
Constitution. If life is taken away all, other rights cease
to exist. [Para 28] [167-H; 168-A-C]
c
12.2. In the context of punishments, the protections
"'
emanating from Article 14 and Article 21 have to be
applied in the strictest possible terms; At this juncture, it
is best to point out that the ensuing discussion, although
D
applicable in constitutionality context, is carried out in the
conte~t of sentencing of death punishment. In ever·y
capital sentence case, it must be borne in mind that the
threshold of rarest of rare cases is informed by Articles
14 and 21, owing to the inherent nature of death penalty.
Post Bachan Singh, capital sentencing has come into the
E
folds of constitutional adjudication. This is by virtue of the
.\
safeguards entrenched in Articles 14 and 21 of our
constitution. [Para 28] [169-C-F]
.....
Shankar/a/ Gyarasilal Dixit v. State of Maharashtra
F
( 1981) 2 sec 35, referred to.
S v. Makwanyane 1994 (3) SA 868 (A); Lockett, [438
U.S. at 604 and Rummel v. Estelle, 445 U.S. 263, 272
(1980), referred to.
G
..:-
J
12.3. With non-capital punishments, a more severe
punishment for one offender than another is commonly
accepted, even in similar circumstances. The infinite
gradations of guilt and the limits of human capacity to
ti
. \
106
SUPREME COURT REPORTS
[2009) 9 S.C.R.
A judge causes one to overlook differential treatment of
apparently similar convicts. As the relative severity of
.,.
B
punishment increases, however, it becomes more difficult
to overlook sentencing disparities. Death is the mq~t
severe of all punishments. [Para 29] [169-G-H; 17Q-A]
13.1. During the sentencing proces!?, th~ §~nttmc.ing
court or the appellate court for th~t rn~tter1 h.~§ tg rt?~(:h
tQ ~ fimf!rrn gf ~ rnti~Hrnl ang gbjegtiv@ QQrm~c:tion
between capital p,~ni~hmtmt ~'1~ th@ JUff P.P~e fQr whic.h
C it is prescrib~~· In sentt!l1~iflQ tt!rms, !l~p~cial reasons"
.~s ~nvisag~d ~11der ~ection 3~4(~) Cr.P.C. have to satisfy
the cqmmuC!tiv~ utility which capital sentence would
serve over life imprisonment in the particular case. [Para
30) [171-8-D]
D
13.2. Principle of prudence, enunciated by Bachan
Singh is sound counsel ·· whenever in the given
circumstances, there is difference of opinion with respect
to any sentencing prop/rationale, or subjectivity involved
in the determining factors, or lack of thoroughness i~
E complying with the sentencing procedure, it would be
advisable to fall in favour of the "rule" of lif~
imprisonment rather than invoking the "exc~gt~on" of
death punishment. [Para 30) · [172-E-Fl
R. v. Oakes, [1986) 1 5.C.R. 103 and R. v. Chaulk,
F [1990) 3 5.C.R. 1303, referred to.
"Anthony Bottoms, The Philosophy and Politics of
Punishment and Sentencing, in The Politics of Sentencing
Reform" 20 (C.M.V. Clarkson & R. Morgan eds., 1995),
G referred to.
14.1. The doctrine of proportionality, which appears
to be the premise whereupon the trial judge as also the
High Court laid its foundation for awarding death penalty
H on the appellant herein, provides for justifiable reasoning
~-
f· -
-
..
SANTOSH KUMAR SATISHBHUSHAN BARIYAR v.
107
STATE OF MAHARASHTRA
for awarding death penalty. However while imposing any
A
~
sentence on the accused the court must also keep in mind
!~e doctrine of rehabilitation. This, considering Section
~ey4(3) of the Code, is especially so in the cases where
th~ '~o~rt i~ ~o ~et~rrnine whether the case at hand falls
within the rar~st of the rnr~ c~~e~ The r~asons assigned
B
by the courts below, d<? not satisfy Bachan Singh Test.
$ection ~§4 (3) of the Code provides for an exception.
General rule of doctrine of proportionality, therefore,
WQUld nQfCJpply. One must read the said provision in the
light of ArtiCie 21 of the Constitution of India. [Para 31]
C
[176-E-H; 177-A]
14.2. 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. Although
the Constitutional Bench judgment of the Supreme Court D
in Bachan Singh did not :.iy down any guidelines on
determining which cases fall within the 'rarest of rare'
categ_ory, yet the mitigating circumstances listed in and
endorsed by the judgment gives reform and rehabilitation
great importance, even requiring the State to prove that
E
this would not be possible, as a precondition before the
court awarded a death sentence. One cannot therefore
determine punishment on grounds of proportionality
alone. There is nothing befo~e this Court that shows that
the appellant cannot reform and be rehabilitated. [Para 31]
i=
[177-A-D]
14.3. 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 G
foul and despicable case of murder. However, 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. [Para 31] [178-A-B]
H
108
SUPREME COURT REPORTS
[2009) 9 S.C.R.
A
14.4. Most research on this issue shows that the
relationship between deterrence and severity of
punishment is complicated. It is not obvious how
deterrence relates to severity and certainty. Furthermore
criminal policy must be evidence-led rather than based
8 on intuitions, which research .around the world has
shown too often to be wrong. In the absence of any
significant empirical attention to this question by Indian
criminologists, one cannot assume that severity .of
punishment correlates to deterrence to an extent which
justifies the restriction of the most fundamental human
C right through the impo$ition of the death penalty. The
goal of crime reduction can be achieved by better police
and prosecution service to the same or at least to a great
extent than by the imposition of the death penalty. [Para
D 31] [178-F-H; 179-A]
Bachan Singh v. State of Punjab (1980) 2 SCC 684;
Dhananjoy Chatterjee v. State of W.B. (1994) 4 SCC 220;
Mohan and Others v. State of T.N. (1998) 5 SCC 336 and
Ravindra Trimbak Chouthmal v. State of Maharashtra (1996)
E 4 SCC 148, referred to.
Kennedy v. Lousiana 128 S. Ct. 2641, referred to.
Roger Hood, The Death Penalty- A World-wide
Perspective, Oxford, Clarendon Press, third edition, 2002, p.
F 230, referred to.
15.1. In the instant case, the entire prosecution case
hinges on the evidence of the approver. For the purpose
of imposing death penalty, that factor may have to be
G kept in mind. Assuming that in Swamy Shraddananda,
this Court did not lay down a firm law that in a case
involving circumstantial evidence, imposition of death
penalty would not be permissible. But, even in relation
thereto the question which would arise would be whether
H
SANTOSH KUMAR SATISHBHUSHAN BARIYAR v.
109 •
STATE OF MAHARASHTRA
in arriving at a conclusion some surmises, some
A
hypothesis would be necessary in regard to the manner
-
in which the offence was committed as contradistinguished from a case where the manner of
occurrence had no role to play. Even where sentence of
death is to be imposed on the basis of the circumstantial
evidence, the circumstantial evidence must be such
which leads to an exceptional case. In a case of this
nature where the entire prosecution case revolves round
B
the statement of an approver or dependant upon the
circumstantialevidence, the prudence doctrine should be c
invoked. For the aforementioned purpose, at the. stage of
sentencing evaluation of evidence would not be
permissible, the courts not only have to solely depend
upon the findings arrived at for the purpose of recording
a judgment of conviction, but also consider the matter 0
keeping in view of evidences which have been brought
on record on behalf of the parties and in particular the
accused for imposition of a lesser punishment. A
statement of approver in regard to the manner in which
crime has been committed vis-a-vis the role played by the
accused, on the one hand, and that of the approver, on
the other, must be tested on the touchstone of the
prudence doctrine. [Para 32] [179-F-H; 180-A-D]
15.2. The accused persons were not criminals. They
were friends. The deceased was said to have been
selected because his father was rich. The motive, if any,
was to collect some money. They were not professional
- killers. They have no criminal history. All were
unemployed and were ..searching for jobs. [Para 32] [180E-F]
15.3. Further if age of the accused was a relevant
factor for the High Court for not imposing death penalty
on accused No. 2 and 3, the same standard should have
been applied to the case of the appellant also who was
E
F
G
H
110
SUPREME COURT REPORTS
[2009] 9 S,CR.
:
A only two years older and still a young man in age.
Accused Nos. 2 and 3 ~ere as much a part of the crime
as the appellant. Though it is true, that it was he who
.,,..
allegedly proposed the idea of kidnapping, but at the
same time it must not be forgotten that the said plan was
B only executed when all the persons involved gave their
consent thereto. [Para 32] [180-F-H; 181-A]
15.4. It must be noted that the discretion given to the
A
·court in such cases assumes onerous importance and
its exercise becomes extremely difficult because of the
~.
c irrevocable character of death penalty. One of the
principles which this Court thinks is clear is that the case
is such where two views ordinarily could be taken.,
~
imposition of death sentence would not be appropriate,
-
D
but where there is no other option and it is shown ~hat
reformation is not possible, death sentence may.'be
"
imposed. [Para 32] (181-A-C]
15.5. Section 354(3) of the Code of Criminal
Procedure requires that when the conviction is for an
E offence punishable with death or in the alternative with
imprisonment for life or imprisonment for a term of y~ars,
the judgment shall state the reasons for the sentence
awarded, and in the case of sentence of death, the
•
special reasons thereof. The reasons assigned by the
i-· ...
F courts below do not disclose any special reason to
uphold the death penalty. The discretion granted to the
courts must be exercised very cautiously especially
because of the irrevocable character to death penalty.
Requirements of law to assign Sjlecial reasons should
G not be construed to be an empty formality. [Para 33] [181C-E]
...
15.6. Judicial principles for imposition of death
penalty are far from being uniform. Without going into the
.t.:_
merits and demerits of such discretion and subjectivity,
I
H one must nevertheless reiterate the basic principle, stated
-'-.
SANTOSH KUMAR SATISHBHUSHAN BARIYAR v.
111
STATE OF MAHARASHTRA
repeatedly by this Court, that life imprisonment is the rule A
and death penalty an exception. Each case must
....
therefore be analyzed and the appropriateness of
punishment determined on a case-by-case basis with
death sentence not to be awarded save in the 'rarest of
rare' case where reform is not possible. Keeping in mind
B
at least this principle this Court does not think that any
J.
of the factors in the present case warrants the award of
the death penalty. There are no special reasons to record
the death penalty and the mitigating factors in the present
case, are sufficient to place it out of the "rarest of rare" c
category. Thus, this Court is of the opinion that this is not
a case where death penalty should be imposed. The
_._
appellant, therefore, instead of being awarded death
penalty, is sentenced to undergo rigorous imprisonment
for life. [Paras 34 and 35] [181-E-H; 182-A-B]
D
Swamy Shraddananda @ Murali Manohar Mishra v.
State of Karantaka 2008 (10) SCALE 669, referred to.
Case Law Reference:
(2000) 8 sec 457
relied on
Para 9
E
...
1994 Supp (2) SCC 73 distinguished
Para 9
~
(1980) 2 sec 684
relied on
Para 10
...
(1979) a sec 646
relied on
Para 10
F
(2005) 4 sec 165
relied on
Para 11
AIR 1983 SC 473
relied on
Para 11
408 U.S.