# SUNDAR @ SUNDARRAJAN v. STATE BY INSPECTOR OF POLICE

- **Citation:** [2023] 5 S.C.R. 1016
- **Court:** Supreme Court of India
- **Decided:** 2023-03-21
- **Case number:** Criminal Appeal Nos. 300-301 of 2011
- **Bench:** Dr. Dhananjaya Y Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sundar-sundarrajan-v-state-by-inspector-of-police-37147
- **Pages:** 51

## Headnote

HIMA KOHLI AND PAMIDIGHANTAM SRI NARASIMHA,
JJ.]
Constitution of India : Arts. 137 - Review jurisdiction in
matters pertaining to capital punishment - Scope of - Petitioner
accused of kidnapping and murdering a 7-year old child -
Conviction u/ss. 364A, 302 and 201 IPC and imposition of death
sentence by the courts below - Upheld by this Court - Review
thereagainst - Dismissed through circulation - However, in view of
the judgment in Mohd. Arif's case, order dismissing the review petition
through circulation recalled and the petition heard in open Court -
Held: None of the grounds raised amount to errors apparent on the
face of the record - All the grounds fail to raise any reasonable
doubt in the prosecution case - Thus, no reason to interfere with
the concurrent findings of the trial court, the High Court and this
Court vis-a-vis the guilt of the petitioner for kidnapping and
murdering the victim - Even though the crime committed by the
petitioner is unquestionably grave and unpardonable, it is not
appropriate to affirm the death sentence awarded to him - 'Rarest
of rare' doctrine requires that the death sentence not be imposed
only by taking into account the grave nature of crime but only if
there is no possibility of reformation in a criminal - No mitigating
circumstances were placed before any of the appellate courts - It
cannot be said that there is no possibility of reformation even though
the petitioner has committed a ghastly crime - Also it was submitted
that the hearing was not conducted separately in the trial court -
Thus, in view of the gruesome nature of the crime of murder of 7
year old child, the death sentence is commuted to life imprisonment
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for not less than twenty years without reprieve or remission -
Supreme Court Rules 2013 - Ord. XLVII r. 1.
Sentence/sentencing:
Capital punishment - Mitigating circumstances -
Consideration of, while deciding upon the sentence - Held: Duty
of the court is to enquire into mitigating circumstances as well as to
foreclose the possibility of reformation and rehabilitation before
imposing the death penalty - State must equally place all material
and circumstances on the record bearing on the probability of reform
- Many such materials and aspects are within the knowledge of the
State which has had custody of the accused both before and after
the conviction - Moreover, the court cannot be an indifferent bystander in the process - Process and powers of the court may be
utilised to ensure that such material is made available to it to form a
just sentencing decision bearing on the probability of reform.
Capital punishment - Aggravating circumstances -
Consideration of, while deciding upon the sentence - Held: Sex of
the child cannot be in itself considered as an aggravating
circumstance - Murder of a young child is a grievous crime and the
young age of the victim as well as the trauma caused to the entire
family is in itself, an aggravating circumstance - It does not and
should not matter for a constitutional court whether the young child
was a male child or a female child - Courts should not indulge in
furthering the notion that only a male child furthers family lineage
or is able to assist the parents in old age - Such remarks involuntarily
further patriarchal value judgments that courts should avoid.
Evidence Act, 1972 : s. 65 B - Electronic evidence in the
form of Call detail records-CDRs - Production of a certificate u/
s.65 B, if mandatory for admitting any electronic evidence - Held:
s. 65B certificate is mandatory - On facts, the review petition to be
considered eschewing the electronic evidence in the form of CDRs
as they are without the appropriate certificate u/s. 65B.
Contempt of Court : Non-disclosure of material facts -
Petitioner-convict tried to escape from prison - Inspector of Police
in the affidavit filed, materially withheld information regarding
conduct of the petitioner in the prison from the Court - Thus,
initiation of Suo Motu contempt

## Text

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SUPREME COURT REPORTS
[2023] 5 S.C.R.
 [2023] 5 S.C.R. 1016
1016
SUNDAR @ SUNDARRAJAN
v.
STATE BY INSPECTOR OF POLICE
(Review Petition (Crl.) Nos. 159-160 of 2013)
In
(Criminal Appeal Nos. 300-301 of 2011)
MARCH 21, 2023
[DR. DHANANJAYA Y CHANDRACHUD, CJI,
HIMA KOHLI AND PAMIDIGHANTAM SRI NARASIMHA,
JJ.]
Constitution of India : Arts. 137 - Review jurisdiction in
matters pertaining to capital punishment - Scope of - Petitioner
accused of kidnapping and murdering a 7-year old child -
Conviction u/ss. 364A, 302 and 201 IPC and imposition of death
sentence by the courts below - Upheld by this Court - Review
thereagainst - Dismissed through circulation - However, in view of
the judgment in Mohd. Arif's case, order dismissing the review petition
through circulation recalled and the petition heard in open Court -
Held: None of the grounds raised amount to errors apparent on the
face of the record - All the grounds fail to raise any reasonable
doubt in the prosecution case - Thus, no reason to interfere with
the concurrent findings of the trial court, the High Court and this
Court vis-a-vis the guilt of the petitioner for kidnapping and
murdering the victim - Even though the crime committed by the
petitioner is unquestionably grave and unpardonable, it is not
appropriate to affirm the death sentence awarded to him - 'Rarest
of rare' doctrine requires that the death sentence not be imposed
only by taking into account the grave nature of crime but only if
there is no possibility of reformation in a criminal - No mitigating
circumstances were placed before any of the appellate courts - It
cannot be said that there is no possibility of reformation even though
the petitioner has committed a ghastly crime - Also it was submitted
that the hearing was not conducted separately in the trial court -
Thus, in view of the gruesome nature of the crime of murder of 7
year old child, the death sentence is commuted to life imprisonment
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for not less than twenty years without reprieve or remission -
Supreme Court Rules 2013 - Ord. XLVII r. 1.
Sentence/sentencing:
Capital punishment - Mitigating circumstances -
Consideration of, while deciding upon the sentence - Held: Duty
of the court is to enquire into mitigating circumstances as well as to
foreclose the possibility of reformation and rehabilitation before
imposing the death penalty - State must equally place all material
and circumstances on the record bearing on the probability of reform
- Many such materials and aspects are within the knowledge of the
State which has had custody of the accused both before and after
the conviction - Moreover, the court cannot be an indifferent bystander in the process - Process and powers of the court may be
utilised to ensure that such material is made available to it to form a
just sentencing decision bearing on the probability of reform.
Capital punishment - Aggravating circumstances -
Consideration of, while deciding upon the sentence - Held: Sex of
the child cannot be in itself considered as an aggravating
circumstance - Murder of a young child is a grievous crime and the
young age of the victim as well as the trauma caused to the entire
family is in itself, an aggravating circumstance - It does not and
should not matter for a constitutional court whether the young child
was a male child or a female child - Courts should not indulge in
furthering the notion that only a male child furthers family lineage
or is able to assist the parents in old age - Such remarks involuntarily
further patriarchal value judgments that courts should avoid.
Evidence Act, 1972 : s. 65 B - Electronic evidence in the
form of Call detail records-CDRs - Production of a certificate u/
s.65 B, if mandatory for admitting any electronic evidence - Held:
s. 65B certificate is mandatory - On facts, the review petition to be
considered eschewing the electronic evidence in the form of CDRs
as they are without the appropriate certificate u/s. 65B.
Contempt of Court : Non-disclosure of material facts -
Petitioner-convict tried to escape from prison - Inspector of Police
in the affidavit filed, materially withheld information regarding
conduct of the petitioner in the prison from the Court - Thus,
initiation of Suo Motu contempt proceedings against the convict.
SUNDAR @ SUNDARRAJAN v. STATE BY INSPECTOR OF
POLICE
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Disposing of the review petitions, the Court
HELD: 1.1 The evidence in the form of CDRs-Call Detail
Record was merely to corroborate the evidence that had been
given through the depositions of PW1 and PW8. Both of their
testimonies stand corroborated not only through the CDRs but
also through the recovery of the mobile phone on the basis of the
confessional statement of the petitioner. Even if Ex. P5, being
the CDR, is not relied upon by this Court, the case of the
prosecution is not weakened as it merely corroborates the
documentary evidence and witness testimonies that remain
unblemished regardless. In view thereof, it is clear that there is
no reason to doubt the guilt of the petitioner. Therefore, even
though none of the grounds raised by the petitioner amount to
errors apparent on the face of the record, in view of thereof, it
can also be conclusively said that all the grounds on merits fail to
raise any reasonable doubt in the prosecution's case. There is
no reason in the review jurisdiction to interfere with the
concurrent findings of the trial court, High Court and this Court
vis-à-vis the guilt of the petitioner for kidnapping and murdering
the victim. [Para 52-54][1048-E-F; 1049-F-H]
1.2 The counsel for the petitioner submitted that the
sentence of death cannot be imposed in such cases where the
conviction is based on circumstantial evidence as a 'lingering
doubt' regarding the guilt of the accused persists. The argument
of residual or lingering doubt does not come to the rescue of the
petitioner. [Para 57, 59][1050-C-D]
1.3 This Court has already applied the relevant standard to
confirm the guilt of the petitioner in the appeal in a case which is
based on circumstantial evidence and it will not be appropriate
for this Court to once again venture into an assessment of the
evidence in the review jurisdiction in view of its limited scope.
[Para 60][1051-F-G]
1.4 In the instant case, the judgment of the trial court dealing
with sentencing indicates that a meaningful, real and effective
hearing was not afforded to the petitioner. The trial court did not
conduct any separate hearing on sentencing and did not take into
account any mitigating circumstances pertaining to the petitioner
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before awarding the death penalty. The High Court took into
account the gruesome and merciless nature of the act. It reiterated
the precedents stating that the death penalty is to be awarded
only in the rarest of rare cases. However, it did not specifically
look at any mitigating circumstances bearing on the petitioner.
This Court examined the aggravating circumstances of the crime
in detail. The above sequence indicates that no mitigating
circumstances of the petitioner were taken into account at any
stage of the trial or the appellate process even though the
petitioner was sentenced to capital punishment. [Para 7074][1056-B-C, F-G; 1057-A,D]
1.5 In terms of the aggravating circumstances that were
taken note of by this Court in appeal, the attention has been drawn
to certain circumstance. It is noted that the sex of the child cannot
be in itself considered as an aggravating circumstance by a
constitutional court. The murder of a young child is
unquestionably a grievous crime and the young age of such a
victim as well as the trauma that it causes for the entire family is
in itself, undoubtedly, an aggravating circumstance. In such a
circumstance, it does not and should not matter for a constitutional
court whether the young child was a male child or a female child.
The murder remains equally tragic. Courts should also not indulge
in furthering the notion that only a male child furthers family
lineage or is able to assist the parents in old age. Such remarks
involuntarily further patriarchal value judgements that courts
should avoid regardless of the context. [Para 75][1057-E, H;
1058-A-C]
1.6 No inquiry was conducted for enabling a consideration
of the factors mentioned in case of the petitioner. Neither the
trial court, nor the appellate courts have looked into any factors
to conclusively state that the petitioner cannot be reformed or
rehabilitated. The Courts have reiterated the gruesome nature
of crime to award the death penalty. In appeal, this Court merely
noted that the counsel for the petitioner could not point towards
mitigating circumstances and upheld the death penalty. The state
must equally place all material and circumstances on the record
bearing on the probability of reform. Many such materials and
aspects are within the knowledge of the state which has had
custody of the accused both before and after the conviction.
SUNDAR @ SUNDARRAJAN v. STATE BY INSPECTOR OF
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Moreover, the court cannot be an indifferent by-stander in the
process. The process and powers of the court may be utilised to
ensure that such material is made available to it to form a just
sentencing decision bearing on the probability of reform. [Para
79][1061-D-F]
1.7 The duty of the court to enquire into mitigating
circumstances as well as to foreclose the possibility of reformation
and rehabilitation before imposing the death penalty has been
highlighted in multiple judgments of this Court. Despite this, in
the present case, no such enquiry was conducted and the grievous
nature of the crime was the only factor that was considered while
awarding the death penalty. [Para 81][1062-H; 1063-A]
1.8 The fact remains that no mitigating circumstances were
placed before any of the appellate courts. It cannot be said that
there is no possibility of reformation even though the petitioner
has committed a ghastly crime. The mitigating factors that the
petitioner has no prior antecedents, was 23 years old when he
committed the crime and has been in prison since 2009 where
his conduct has been satisfactory, except for the attempt to escape
prison in 2013; that the petitioner is suffering from a case of
systemic hypertension and has attempted to acquire some basic
education in the form of a diploma in food catering; that the
acquisition of a vocation in jail has an important bearing on his
ability to lead a gainful life, must be considered. Considering the
above factors, even though the crime committed by the petitioner
is unquestionably grave and unpardonable, it is not appropriate
to affirm the death sentence that was awarded to him. The 'rarest
of rare' doctrine requires that the death sentence not be imposed
only by taking into account the grave nature of crime but only if
there is no possibility of reformation in a criminal. However, the
Court is also aware that a sentence of life imprisonment is subject
to remission. This would not be adequate in view of the gruesome
crime committed by the petitioner. [Para 88-90][1064-E-H; 1065A]
1.9 There is no reason to doubt the guilt of the petitioner
in kidnapping and murdering the victim. The exercise of the
jurisdiction in review to interfere with the conviction is not
warranted. However, the Court does take note of the arguments
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regarding the sentencing hearing not having been conducted
separately in the trial court and mitigating circumstances having
not been considered in the appellate courts before awarding the
capital punishment to the petitioner. While weighing this
argument, the gruesome nature of the crime of murder of a young
child of merely 7 years of age has also weighed upon the Court
and the Court does not find that a sentence of life imprisonment,
which normally works out to a term of 14 years, would be
proportionate in the circumstances. Accordingly, the death
sentence imposed upon the petitioner is commuted to life
imprisonment for not less than twenty years without reprieve or
remission. [Para 93, 94][1066-B-E]
1.10 Separately, a notice is required to be issued to the
Inspector of Police, Kammapuram Police Station, Cuddalore
District, State of Tamil Nadu to offer an explanation as to why
action should not be taken for the filing of the affidavit dated 26
September 2021. In this case, prima facie, material information
regarding the conduct of the petitioner in the prison was concealed
from this Court. Accordingly, the Registry is directed to register
the matter as a suo motu proceeding for contempt of court. [Para
95][1066-F]
Mohd. Arif alias Ashfaq v Registrar, Supreme Court of
India 2014 (9) SCC 737 : [2014] 11 SCR 1009 -
followed
Mofil Khan v State of Jharkhand 2021 SCC OnLineSC
1136; Arjun Panditrao Khotkar v Kailash Kushanrao
Gorantyal 2020 (7) SCC 1; Anvar P.V. v P.K. Basheer
2014 (10) SCC 473 : [2014] 11 SCR 399; State (NCT
of Delhi) v Navjot Sandhu 2005 (11) SCC 600 : [2005]
2 Suppl. SCR 79; Tomaso Bruno v State of Uttar
Pradesh 2015 (7) SCC 178 : [2015] 1 SCR 721; Shafi
Mohammed v State of Himachal Pradesh 2018 (2) SCC
801; Sonu alias Amar v State of Haryana 2017 (8) SCC
570 : [2017] 8 SCR 151; Mohd. Arif v State (NCT of
Delhi) 2022 SCC OnLine SC 1509; Shatrughna Baban
Meshram v State of Maharashtra 2021 (1) SCC 596;
Santa Singh v State of Punjab 1976 (4) SCC 190 :
[1977] 1 SCR 229; Bachan Singh v State of Punjab
SUNDAR @ SUNDARRAJAN v. STATE BY INSPECTOR OF
POLICE
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1980 (2) SCC 684; Muniappan v State of Tamil Nadu
1981 (3) SCC 11 : [1981] 3 SCR 270; Allauddin Mian
v State of Bihar 1989 (3) SCC 5 : [1989] 2 SCR 498;
Anguswamy v State of Tamil Nadu 1989 (3) SCC 33;
Malkiat Singh v State of Punjab 1991 (4) SCC 341 :
[1991] 2 SCR 256; Dattaraya v State of Maharashtra
2020 (14) SCC 290 : [2019] 11 SCR 295; Dagdu v
State of Maharashtra 1977 (3) SCC 68 : [1977] 3 SCR
636; Tarlok Singh v State of Punjab 1977 (3) SCC 218
: [1977] 3 SCR 711; Ramdeo Chauhan v State of Assam
2001 (5) SCC 714 : [2001] 3 SCR 669; In re: Framing
Guidelines
Regarding
Potential
Mitigating
Circumstances to be Considered while Imposing Death
Sentences Suo Motu W.P. (Crl.) No. 1/2022; Rajendra
Pralhadrao Wasnik v State of Maharashtra 2019 (12)
SCC 460 : [2018] 14 SCR 585; Santosh Kumar
Satishbhushan Bariyar v State of Maharashtra 2009
(6) SCC 498 : [2009] 9 SCR 90; Anil v State of
Maharashtra 2014 (4) SCC 69 : [2014] 3 SCR 34;
Swamy Shraddananda (2) @ Murali Manohar Mishra
v State of Karnataka 2008 (13) SCC 767 - referred
to.
Exercise of Review Jurisdiction in Capital Cases in
DEATH PENALTY AND THE INDIAN SUPREME
COURT (2007-2021), Project 39A, National Law
University Delhi (2022) - referred to.
Case Law Reference
[2014] 11 SCR 1009
followed
Para 1
(2020) 7 SCC 1
referred to
Para 30
[2014] 11 SCR 399
referred to
Para 30
[2005] 2 Suppl. SCR 79
referred to
Para 31
[2015] 1 SCR 721
referred to
Para 34
(2018) 2 SCC 801
referred to
Para 35
[2017] 8 SCR 151
referred to
Para 40
(2021) 1 SCC 596
referred to
Para 58
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[1977] 1 SCR 229
referred to
Para 63
(1980) 2 SCC 684
referred to
Para 64
[1981] 3 SCR 270
referred to
Para 65
[1989] 2 SCR 498
referred to
Para 66
(1989) 3 SCC 33
referred to
Para 67
[1991] 2 SCR 256
referred to
Para 67
[2019] 11 SCR 295
referred to
Para 67
[1977] 3 SCR 636
referred to
Para 68
[1977] 3 SCR 711
referred to
Para 68
[2001] 3 SCR 669
referred to
Para 68
[2018] 14 SCR 585
referred to
Para 76
[2009] 9 SCR 90
referred to
Para 77
[2014] 3 SCR 34
referred to
Para 78
(2008) 13 SCC 767
referred to
Para 91
INHERENT JURISDICTION : Review Petition (Crl.) Nos.159160 of 2013 In Criminal Appeal Nos.300-301 of 2011.
From the Judgment and Order dated 15.02.2013 in Crl. A. Nos.300
and 301 of 2011 of the Supreme Court of India.
Renjith B. Marar, Ms. Lakshmi N. Kaimal, Arun Poonavlli, M. J.
Santhosh, Advs. for the Petitioner.
V. Krishnamurthy, AAG, Dr. Joseph Aristotle S., Ms. Nupur
Sharma, Shobhit Dwivedi, Sanjeev Kumar Mahara, Ms. Richa
Vishwakarma, Advs. for the Respondent.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, CJI
This Judgment consists of the following sections:
A.
Prologue-The impact of Mohd. Arif..................3*
B.
Background ................................................................ 7*
C.
Scope of Review Jurisdiction .................................. 9*
SUNDAR @ SUNDARRAJAN v. STATE BY INSPECTOR OF
POLICE
*Ed. Note : Pagination is as per the original judgment.
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D.
Error Apparent on the Face of the Record? .......10*
D.1
Submissions of Counsel.................................... 10*
D.2.
Analysis ............................................................ 12*
E.
Sentencing & Mitigation........................................32*
E.1.
Lingering Doubt Theory ..............................32*
E.2.
Sentencing & Mitigation in the Trial Court and
the Appellate Courts ....................................34*
F.
Conclusion ................................................................50*
1. The applicant is a convict on death row. He has moved this
court for a fresh look at his petition seeking a review of his conviction
for the offence of murder and the award of the sentence of death. He
does soon the basis of the decision of the Constitution Bench in Mohd.
Arif alias Ashfaq v Registrar, Supreme Court of India1. In Mohd.
Arif, this Court has held that review petitions arising from conviction
and the imposition of the sentence of death must be heard in open court
and cannot be disposed of by circulation. The Constitution Bench allowed
a period of a month from the date of judgment to petitioners whose
applications seeking review of the judgment of this Court confirming the
award of the sentence of death were rejected by circulation, where the
sentence was yet to be executed.
A. Prologue - The impact of Mohd. Arif
2. In Mohd. Arif, this Court took note of the irreversible nature of
the death penalty and of the possibility of two judicial minds reaching
differing conclusions on the question of a case being appropriate for the
award of the death penalty. The judgment of the majority allowed the
right to oral hearing in review for cases involving death penalty:
29. [...] death sentence cases are a distinct category of cases
altogether. Quite apart from Article 134 of the Constitution granting
an automatic right of appeal to the Supreme Court in all death
sentence cases, and apart from death sentence being granted only
in the rarest of rare cases, two factors have impressed us. The
first is the irreversibility of a death penalty. And the second
is the fact that different judicially trained minds can arrive
at conclusions which, on the same facts, can be diametrically
*Ed. Note : Pagination is as per the original judgment.
1 2014 (9) SCC 737
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opposed to each other. Adverting first to the second factor
mentioned above, it is well known that the basic principle
behind returning the verdict of death sentence is that it
has to be awarded in the rarest of rare cases. There may be
aggravating as well as mitigating circumstances which are
to be examined by the Court. At the same time, it is not
possible to lay down the principles to determine as to which
case would fall in the category of rarest of rare cases,
justifying the death sentence. It is not even easy to mention
precisely the parameters or aggravating/mitigating circumstances
which should be kept in mind while arriving at such a question.
Though attempts are made by Judges in various cases to state
such circumstances, they remain illustrative only.
30. [...] A sentence is a compound of many factors, including the
nature of the offence as well as the circumstances extenuating or
aggravating the offence. A large number of aggravating
circumstances and mitigating circumstances have been pointed
out in Bachan Singh v. State of Punjab, SCC at pp. 749-50,
paras 202 & 206, that a Judge should take into account when
awarding the death sentence. Again, as pointed out above,
apart from the fact that these lists are only illustrative, as
clarified in Bachan Singh itself, different judicially trained
minds can apply different aggravating and mitigating
circumstances to ultimately arrive at a conclusion, on
considering all relevant factors that the death penalty may
or may not be awarded in any given case. Experience based
on judicial decisions touching upon this aspect amply
demonstrate such a divergent approach being taken.
Though, it is not necessary to dwell upon this aspect
elaborately, at the same time, it needs to be emphasised
that when on the same set of facts, one judicial mind can
come to the conclusion that the circumstances do not
warrant the death penalty, whereas another may feel it to
be a fit case fully justifying the death penalty, we feel that
when a convict who has suffered the sentence of death and
files a review petition, the necessity of oral hearing in such
a review petition becomes an integral part of "reasonable
procedure".
(emphasis supplied)
SUNDAR @ SUNDARRAJAN v. STATE BY INSPECTOR OF
POLICE [DR. DHANANJAYA Y CHANDRACHUD, CJI]
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3. A recent study by Project 39A examined all the judgments
involving a sentence of death delivered by the Supreme Court between
2007 and 2021 as part of which it analysed the exercise of the review
jurisdiction in capital cases.2 It noted that, during the period covered by
the study, before the decision in Mohd. Arif, 14 review petitions were
dismissed by circulation and the capital punishment was confirmed in all
of them. Out of these, 13 were re-opened in view of the judgment which
resulted in only 4 re-confirmations of the death penalty. On the other
hand, 7 judgments resulted in commutation of death sentences, 1 in
acquittal and 1 case being abated due to the death of the prisoner. In
view of the above data, the impact of the oral hearing of review petitions,
due to the judgment in Mohd. Arif leading to a change in the outcome
of a death penalty confirmation is evident.
4. The Court in Mohd. Arif, however, was not persuaded by the
argument of involving two additional judges beyond the judges who had
heard the original appeal during the hearing of the review petition. It also
held that a review must be ordinarily heard by the same bench which
originally heard the criminal appeal. It had noted that:
39. Henceforth, in all cases in which death sentence has been
awarded by the High Court in appeals pending before the Supreme
Court, only a bench of three Hon'ble Judges will hear the same.
This is for the reason that at least three judicially trained minds
need to apply their minds at the final stage of the journey of a
convict on death row, given the vagaries of the sentencing
procedure outlined above. At present, we are not persuaded
to have a minimum of 5 learned Judges hear all death
sentence cases. Further, [...] a review is ordinarily to be
heard only by the same bench which originally heard the
criminal appeal. This is obviously for the reason that in order
that a review succeeds, errors apparent on the record have
to be found. It is axiomatic that the same learned Judges
alleged to have committed the error be called upon now to
rectify such error. We, therefore, turn down [the...] plea
that two additional Judges be added at the review stage in
death sentence cases.
(emphasis supplied)
2Exercise of Review Jurisdiction in Capital Cases in DEATH PENALTY AND THE INDIAN
SUPREME COURT (2007-2021), Project 39A, National Law University Delhi (2022).
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5. The data analysed by Project 39A indicates that it is not merely
the oral hearing of review petitions that has changed the outcomes. There
may also be a correlation between the ultimate outcome changing and
different judges being involved as part of the review process instead of
the same judges who had originally decided the appeal. Post Mohd.
Arif, this happens when the judges who were members of the original
bench have demitted office by the time the open court review comes for
hearing. The data involves the 13 review cases re-opened and re-decided
post Mohd. Arif after an oral hearing as well as 10 fresh review cases
which were decided post Mohd. Arif. Out of 13 post Mohd. Arif cases
which were re-opened, we have already noted that only 4 led to reconfirmation of the award of the death penalty, while in 7 cases the
sentence was commuted to life imprisonment, 1 resulted in an acquittal
and 1 stood abated. Out of the 10 fresh review cases, in 7 the death
sentence was confirmed while in 3 the sentence was commuted.
6. In the cases where the sentence of death was commuted to
life imprisonment, i.e. 7 cases from the first lot of 13 re-opened review
cases and 3 cases from the second lot of 10 fresh review cases, all of
the benches in review were of a different composition from the bench
that decided the appeal. The 1 case which resulted in acquittal also had
a different bench in review from the one in appeal. On the other hand, in
the 11 cases which re-confirmed the death sentence, 7 benches had a
composition of one or all the judges being the same as the bench that
decided the appeal. The report notes that:
The stage of review is rendered almost superfluous for the
purpose envisaged by the majority, i.e., a further reconsideration
of a death sentence, when the same bench (as in criminal appeal)
is called upon to decide the review petition. This is in fact
demonstrated by the data. As predicted by Justice Chelameswar, when
heard by the same bench as the appeal, review petitions resulted in the
death sentence being maintained. 4 out of 11 confirmation judgments
rendered at the stage of review had the same bench. While the
remaining 7 confirmation judgments in review were rendered by
benches of different composition, it is relevant to note that in 1
of these judgments one judge was common to both the benches
that decided the review and the appeal, and in yet another, two
judges were common to both benches. On the other hand, all of
the 10 judgments that resulted in commutation at the review stage,
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were rendered by benches having a different composition from
the bench that decided the appeal. Therefore, the data suggests that
a review petition filed within 30 days of the judgment rendered in appeal,
decided by the same bench, will not demonstrate considerable differences
in approaches or outcome, unlike those decided by a different bench.
(emphasis supplied)
7. While the above data is not conclusive and the correlation may
not necessarily equate to causation, we find it appropriate to mention as
the present case is also one of those being re-opened and re-heard as a
result of the decision in Mohd. Arif. We clarify by way of abundant
caution that being both a smaller bench and having not been called upon
to consider the impact of different judges sitting in the review of an
appeal confirming the death sentence, we are not deciding on the merits
of the proposition.
B. Background
8. In view of the judgment in Mohd. Arif, the order dated 20
March 2013 in the present case dismissing the review petition through
circulation was recalled and this review petition was heard in open court.
9. The petitioner was accused of kidnapping and murdering a 7year-old child. The petitioner is alleged to have picked up the victim
while he was returning from school in the school van on 27 July 2009.
Prosecution witnesses testified to the petitioner having picked up the
victim on his motorbike.
10. Due to the victim's absence, his mother attempted to find his
whereabouts and was informed of the above sequence of events by one
of the witnesses. Accordingly, she proceeded to register a complaint at
Police Station, Kammapuram on the same date. On the same night, she
also received a call on her mobile phone from the petitioner, demanding
a ransom of Rs. 5 lakhs for the release of the victim. Further, another
ransom call was made on the succeeding day from a telephone booth.
One of the witnesses is the individual who runs the booth and has testified
that the petitioner made a call enquiring regarding the payment of money.
11. On 30 July 2009 the police raided the house of the petitioner
and arrested him along with a co-accused who was later acquitted. The
petitioner made confessional statements on the basis of which three
mobile phone sets, two of which had SIM cards, were recovered. The
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petitioner confessed to strangling the deceased, putting his dead body in
a gunny bag and throwing it in the Meerankulam tank. The body of the
deceased was recovered from the tank on the basis of the confessional
statement.
12. On the basis of the investigation, the petitioner was charged
under Sections 364A, 302 and 201 of the Indian Penal Code.3 The trial
was committed to the Court of the Sessions Judge on 30 July 2010. The
Sessions Judge convicted the petitioner for the offences with which he
was charged and sentenced him to (i) death with a fine of Rs.1000 for
the offence under section 364A IPC, (ii) death with a fine of Rs.1000
for the offence under section 302 IPC; and (ii) rigorous imprisonment
for seven years and a fine of Rs.1000 for the offence under section 201
IPC. The co-accused was acquitted of all the offences.
13. The petitioner's appeal was dismissed by the High Court of
Judicature at Madras by a judgment dated 30 September 2010. The
High Court confirmed both the conviction and the award of the death
sentence.
14. This Court dismissed the appeal of the petitioner and confirmed
the judgment of the Madras High Court on 5 February 2013. Both the
High Court and this Court entered into a detailed appreciation of facts
before confirming the conviction.
C. Scope of Review Jurisdiction
15. Article 137 of the Constitution states that the Supreme Court
has the power to review any judgment pronounced by it subject to
provisions of law made by the Parliament or any rules under Article 145.
The Supreme Court Rules 20134 have been framed under Article 145 of
the Constitution. Order XLVII Rule 1of the 2013 Rules provides that the
Court may review its own judgment 16. or order but no application for
review will be entertained in a civil proceeding except on the ground
mentioned in Order XLVII Rule 1 of the Code of Civil Procedure 1908,
and in a criminal proceeding except on the ground of an error apparent
on the face of the record.
17. In Mofil Khan v State of Jharkhand5,a three judge Bench of
this Court while discussing the scope of the power of review held that:
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2. [...] Review is not rehearing of the appeal all over again and to
maintain a review petition, it has to be shown that there has been
a miscarriage of justice (See: Suthendraraja v. State). An error
which is not self-evident and has to be detected by a process of
reasoning can hardly be said to be an error apparent on the face
of the record justifying the Court to exercise its power of review
(See: Kamlesh Verma v. Mayavati). An applicant cannot be
allowed to reargue the appeal in an application for review on the
grounds that were urged at the time of hearing of the appeal.
Even if the applicant succeeds in establishing that there may be
another view possible on the conviction or sentence of the accused
that is not a sufficient ground for review. This Court shall exercise
its jurisdiction to review only when a glaring omission or patent
mistake has crept in the earlier decision due to judicial fallibility.
There has to be an error apparent on the face of the record leading
to miscarriage of justice.
D. Error Apparent on the Face of the Record?
D.1 Submissions of Counsel
18. We have heard the counsel for the petitioner and for the State
of Tamil Nadu. The counsel for the petitioner has submitted that the
following errors are apparent on the face of the record and call for a
review of the judgment dismissing the appeal:
a.
There is no proof that the phone number through which the
ransom calls were allegedly made by the petitioner i.e. the
number ending with XXX5961, belongs to the petitioner;
b.
That the call detail records show that the above-mentioned
number is registered with one individual with residence in
Alathur, Palakkad whom the petitioner has no connection
with;
c.
That the 15-digit IMEI number for the cell phone, allegedly
belonging to the petitioner containing the SIM with mobile
number ending with XXX5961, mentioned in the seizure
memo differs from the IMEI number mentioned in the call
detail record;
d.
There is no evidence that the number on which the ransom
call was allegedly made to PW1 (mother of the deceased),i.e.
the number ending with XXX847, belongs to PW1;
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e.
PW1 has not stated that calls were made to her on 28 July
2009 and the testimony of PW16, the operator of the phone
booth through which the call was made, cannot be relied
upon; and
f.
The certificate under Section 65B of the Indian Evidence
Act 18726 for the call detail records was not furnished.
19. The counsel for the State of Tamil Nadu strongly resisted the
submissions which were urged by the Petitioner. The counsel submitted
that the above grounds do not amount to errors apparent on the face of
the record and do not meet the standard for re-appreciating evidence by
this Court in review jurisdiction in the face of concurrent findings of the
Trial Court, the High Court and this Court. The counsel also took us
through the relevant exhibits and statements of prosecution witnesses to
counter the grounds raised by the petitioner on merits.
D.2. Analysis
20. We are in agreement with the counsel for the State of Tamil
Nadu. The grounds which have been raised by the petitioner have already
been dealt with by the courts which have arrived at concurrent findings
recording the guilt of the petitioner. Further, the case of the prosecution
is not founded only on the alleged calls for ransom but on consistent
interlinked evidence as both the High Court and Supreme Court found in
their judgments.
21. Regardless, we consider it appropriate to deal with the
contentions of the petitioner.
22. The petitioner has alleged that the number through which the
ransom call was allegedly made did not belong to him. However, on the
basis of his statement of 30 July 2009, the cell phone with the SIM for
the mobile number ending with XXX5961 was seized from the petitioner
along with 2 other cell phones, the motorbike on which he had kidnapped
the victim as well as the victim's school bag.
23. Similarly, the contention based on the difference in the IMEI
number recorded in the seizure memo and the call detail records does
not affect the prosecution's case for the following reason. The difference
in the IMEI number recorded in the seizure memo and the call detail
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record pertains to the last digit of the 15-digit IMEI number. Every device
has a unique IMEI number identifying the brand owner in the model.
The first 8 digits are the Type Allocation Code (TAC) digits of which the
initial 2 digits identify the reporting body and the next 6 identify the brand
owner and device model allocated by the reporting body. The next 6
digits are the unique serial number assigned to individual devices by the
manufacturer.7
24. These 14 digits in the petitioner's case match in both the seizure
memo and the call detail record. The last digit in the IMEI number is the
'Luhn check digit' based on a function of the other digits using an
algorithm. Technically, the last digit, which is the only digit that is different
in the seizure memo and the call detail record, can be calculated through
the algorithm on the basis of the first 14 digits which are the same in
both the documents. As the last digit of an IMEI number is a function of
the first 14 digits, as long as the first 14 digits are a match, it can only
lead to one unique device. Accordingly, it can be conclusively said that a
difference in only the last digit of the IMEI number cannot imply that it
represents the IMEI number of a separate device. Therefore, the
difference in the last digit of the IMEI number can reasonably be assumed
to be a typographical error and does not raise a doubt in the prosecution's
case.
25. The arguments regarding non-verification of PW1's number,
non-confirmation with PW1 regarding a call received on the subsequent
day as claimed by PW16 have been raised at a belated stage.
26. PW8 has stated in her testimony that the petitioner called her
to enquire regarding the phone number of PW1 and she told him to cut
the phone and call again so she can retrieve the number and provide the
same, as she did on the second call. PW1 has also testified that she
received the call for ransom at about 9:30PM. It was upon the petitioner,
at the stage of cross-examination of PW1 to raise questions regarding
the number ending with XXX847 belonging to her or regarding the call
alleged to have been made by the petitioner on 28 July 2009 mentioned
by PW16.
27. Finally, the petitioner has argued that the CDRs cannot be
relied upon due to the lack of production of the Section 65B certificate.
7 GSMA TAC Allocation and IMEI Programming Rules for Device Brand Owners and
Manufacturers, Training Guide (February 2018 v1.0).
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The call detail records were verified in the testimony of the Legal Officer
of Vodafone, PW11, who himself produced the documents from the
computer. He has in his cross-examination specifically corroborated the
details of the calls made between the petitioner and PW1 and PW8
(from whom the number of PW1 was received after enquiring about it
during the call by petitioner). The call detail records of the mobile number
ending with XXX5961 confirm that two calls were made to PW8 at
9:22PM and 9:25PM on 27 July 2009. Immediately after this he called
on the number ending with XXX847 at 9:39PM. However, admittedly
the certificate mentioned under Section 65B of the IEA was not produced.
28. Section 65B was inserted in the IEA along with various other
amendments by the Information Technology Act 20008 which took into
account digital evidence. Section 65B provides for the admissibility of
electronic records.
29. Section 65B of the IEA is reproduced below:
"65-B.