# VASANTA SAMPAT DUPARE v. STATE OF MAHARASHTRA

- **Citation:** [2017] 3 S.C.R. 850
- **Court:** Supreme Court of India
- **Decided:** 2017
- **Case number:** Criminal Appeal Nos. 2486-2487 of 2014
- **Bench:** Dipak Misra, R. F. Nariman, Uday Umesh Lalit
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vasanta-sampat-dupare-v-state-of-maharashtra-31932
- **Pages:** 28

## Headnote

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Sentence/Sentencing:
Death sentence - Conviction .of review petitioners for rape
and murder of a minor girl of 4 years and award of death sentence
- Held: In the judgment under review, this Court had considered
the aggravating facts and the mitigating circumstances - The
D brutality and diabolical nature of the crime and the fact that the
victim had reposed trust and confidence in the petitioner was taken
into account and this Court found the aggravating circumstances
completely outweighed the other factors - The court did not find
any mitigating circumstances in favour of review petitioners for
awarding lesser punishment - The evidence and circumstances were
E dealt with in the judgment under review in great detail - Therefore,
no interference with the order of death sentence - Review petition
liable to be dismissed.
Death sentence - Plea of review petitioner that in the light of
principles laid down in Bachan Singh, mitigating factors· ought to
F have been taken into account and that proper and effective hearing
in that regard was not extended to the petitioner -
Held: Plea not
sustainable - Jn Bachan Singh case, the burden was·upon the State
in respect of conditions (3) and (4) i.e. the probability that the
accused would not commit criminal acts of violence as would
G constitute a continuing threat to society and the probability that the
accused can be reformed and rehabilitated - It was stated therein
that th(! State shall by evidence prove that the accused did not satisfv
these two conditions - However, in the subsequent paragraphs it
was mentioned that those circumstances would certainly be relevant
and great weight be attached to them but it was the cumulative effect
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VASANTA SAMPAT DUPARE v. STATE OF MAHARASHTRA
851
of mitigating circumstances on one hand and aggravating facts on
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the other, which would be weighed to come to the final conclusion
whether the case satisfied the requirement of being "rarest of rare"
- Therefore, the correct interpretation of Bachan Singh case is that
mere failure on part of the State to lead such evidence would not
clinch the issue in favour of the accused - It is a relevant B
consideration which will be weighed by the Court together with
other circumstances on record.
Death sentence - Aggravating and mitigating circumstances -
Both aspects have to be given their respective weightage - The court
has to strike a balance between the two and see towards whichside
scale of justice tilts - The material placed on record showed that
after the judgment under review, the petitioner completed Bachelors
Preparatory Programme offered by the Indira Gandhi National Open
University enabling him to prepare fo'r Bachelor level study and
that he has also completed the Gandhi Vichar Pariksha and had
participated in drawing competition - Jail record of the petitioner D
was without any blemish and it was projected that there was a
possibility of the accused being reformed and rehabilitated -
However, the aggravating circumstances namely the extreme
depravity and the barbaric manner in which the crime was. committed
and the fact that the victim was a helpless girl of four years clearly
outweigh the mitigating circumstances brought on record - No case
made out to take a different view in the matter.
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Code ,of Criminal Procedure, 1973 - s.235(2) - Scope of -
Plea of review petitioner that the judgment of conviction and the -~
order of sentence was passed by trial court on the same day which
was opposed to the spirit of s.235(2) - Held: The purp6se of s.235(2)
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is to give sufficient time to the accused or the prosecution on the
question of sentence to show the grounds on which the prosecution
may plead or accused may show that the maximum sentence of death
may be the appropriate sentence or the minimum sentence of life
imprisonment may be awarded as the case may be - However, merely G
because no separate date was given for hearing on sentence, the ·
entire exercise is not vitiated - Plea rejected - S

## Text

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[2017] 3 S.C.R. 850
VASANTA SAMPAT DUPARE
v.
STATE OF MAHARASHTRA
(Review Petition (Crl.) Nos. 637-638 of 2015)
In
(Criminal Appeal Nos. 2486-2487 of 2014)
MAY03,2017
[DIPAK MISRA, R. F. NARIMAN AND
UDAY UMESH LALIT, JJ.]
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Sentence/Sentencing:
Death sentence - Conviction .of review petitioners for rape
and murder of a minor girl of 4 years and award of death sentence
- Held: In the judgment under review, this Court had considered
the aggravating facts and the mitigating circumstances - The
D brutality and diabolical nature of the crime and the fact that the
victim had reposed trust and confidence in the petitioner was taken
into account and this Court found the aggravating circumstances
completely outweighed the other factors - The court did not find
any mitigating circumstances in favour of review petitioners for
awarding lesser punishment - The evidence and circumstances were
E dealt with in the judgment under review in great detail - Therefore,
no interference with the order of death sentence - Review petition
liable to be dismissed.
Death sentence - Plea of review petitioner that in the light of
principles laid down in Bachan Singh, mitigating factors· ought to
F have been taken into account and that proper and effective hearing
in that regard was not extended to the petitioner -
Held: Plea not
sustainable - Jn Bachan Singh case, the burden was·upon the State
in respect of conditions (3) and (4) i.e. the probability that the
accused would not commit criminal acts of violence as would
G constitute a continuing threat to society and the probability that the
accused can be reformed and rehabilitated - It was stated therein
that th(! State shall by evidence prove that the accused did not satisfv
these two conditions - However, in the subsequent paragraphs it
was mentioned that those circumstances would certainly be relevant
and great weight be attached to them but it was the cumulative effect
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850
VASANTA SAMPAT DUPARE v. STATE OF MAHARASHTRA
851
of mitigating circumstances on one hand and aggravating facts on
A
the other, which would be weighed to come to the final conclusion
whether the case satisfied the requirement of being "rarest of rare"
- Therefore, the correct interpretation of Bachan Singh case is that
mere failure on part of the State to lead such evidence would not
clinch the issue in favour of the accused - It is a relevant B
consideration which will be weighed by the Court together with
other circumstances on record.
Death sentence - Aggravating and mitigating circumstances -
Both aspects have to be given their respective weightage - The court
has to strike a balance between the two and see towards whichside
scale of justice tilts - The material placed on record showed that
after the judgment under review, the petitioner completed Bachelors
Preparatory Programme offered by the Indira Gandhi National Open
University enabling him to prepare fo'r Bachelor level study and
that he has also completed the Gandhi Vichar Pariksha and had
participated in drawing competition - Jail record of the petitioner D
was without any blemish and it was projected that there was a
possibility of the accused being reformed and rehabilitated -
However, the aggravating circumstances namely the extreme
depravity and the barbaric manner in which the crime was. committed
and the fact that the victim was a helpless girl of four years clearly
outweigh the mitigating circumstances brought on record - No case
made out to take a different view in the matter.
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Code ,of Criminal Procedure, 1973 - s.235(2) - Scope of -
Plea of review petitioner that the judgment of conviction and the -~
order of sentence was passed by trial court on the same day which
was opposed to the spirit of s.235(2) - Held: The purp6se of s.235(2)
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is to give sufficient time to the accused or the prosecution on the
question of sentence to show the grounds on which the prosecution
may plead or accused may show that the maximum sentence of death
may be the appropriate sentence or the minimum sentence of life
imprisonment may be awarded as the case may be - However, merely G
because no separate date was given for hearing on sentence, the ·
entire exercise is not vitiated - Plea rejected - Sentence/Sentencing.
· Dismissing the review petitions, the Court
HELD: 1. Sub-section (2) of Section 235 of the Cr.P.C.
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[2017] 3 S.C.R.
A obliges the Court to hear the accused on the question of sentence
and normally it is expected that after recording the conviction,
the matter be adjourned to a future date calling upon both the
prosecution as well as the defence to place relevant material
having bearing on the question of sentence. However, merely
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because no separate date was given for hearing on sentence, the
entire exercise is not flawed or vitiated. [Paras 14, 15J[868-H;
869-A; 870-F-G)
2. It is well settled, "the Court would consider the
cumulative effect of both the aspects (namely aggravating factors
as well as mitigating circumstances) and it may not be very
appropriate for the Court to decide the most significant aspect of
sentencing policy with reference to one of the classes completely
ignoring other classes under other heads and it is the primary
duty of the Court to balance the two." Further, "it is always
preferred not to fetter the judicial discretion by attempting to
make excessive enumeration, in one way or another; and that
both aspects namely aggravating and mitigating circumstances
have to be given their respective weightage and that the Court.
has to strike the balance between the two and see towards which
side the scale/balance of justice tilts."[Para 19][876-F-H]
3. The material placed on record shows that after the
judgment under review, the petitioner has completed Bachelors
Preparatory Programme offered by the Indira Gandhi National
Open University enabling him to prepare for Bachelor level study
and that he has also completed the Gandhi Vichar Pariksha and
had participated in drawing competition organized sometime in
January 2016. It is asserted that the jail record of the petitioner
is without any blemish. The matter is not contested as regards
Conditions 1, 2, 5, 6 and 7 as stated in *Bachan Singh. case but
what is now being projected is that there is a possibility of the
acc'used being reformed and rehabilitated. The aggravating
G circumstances namely the extreme depravity and the barbaric
manner in which the crime was committed and the fact that the
victim. was a helpless gid of four years clearly outweigh the
mitigating circumstances now brought on record. No case is made
out to take a different view in the matter. [Para 20J[877-A-D] <·
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VASANTA SAMPAT DUPARE v. STATE OF MAHARASHTRA
*Bachan Singh v. State of Punjab (1980) 2 SCC 684 -
followed.
Machhi Singh and others v. State of Punjab (1983) 3
SCC 470 : [1983) 3 SCR 413; Mohd. Arif @ Ashfaq
v. Registrar. Supreme Court of India and others [2014)
11 SCR 1009 : (2014) 9 SCC 737; Vasanta Sampat
Dupare v. State of Maharashtra (2015) 1 SCC 253;
Dagdu and Others v. State of Maharashtra (1977) 3
SCC 68 : [1977) 3 SCR 636; Al/auddin Mian and
Others v. State of Bihar (1989) 3 SCC 5 : [1989) 2
SCR 498; Malkiat Singh and others v. State of Punjab
(1991) 4 SCC 341 : [1991) 2 SCR 256; B.A. Umesh v.
High Court of Karnataka (2016) 9 SCALE 600: [2016]
5 SCR 438; Tarlok Singh v. State of Punjab (1977) 3
SCC 218 : [1977) 3 SCR 711; Rajesh Kumar v. State
through Government of NCT of Delhi [2011) 15 SCR
92 : 2011 (11) SCALE 182; Ramnaresh and Others v.
State of Chhattisgarh (2012) 4 SCC 257 : [2012) 3 SCR
630 - relied on.
Case Law Reference
(2014) 11 SCR 1009
relied on
Paral
(201s) 1 sec 2s3
relied on
Para2
(1980) 2 sec 684
followed
Para4
(1983) 3 SCR 413
relied on
Paras
(1977) 3 SCR 636
relied on
Para 10
(1989) 2 SCR 498
relied on
Para 12
[1991) 2 SCR 256
relied on
Para 14
(2016) 5 SCR 438
relied on
Para 15
[1977) 3 SCR 711
relied on
Para 15
[2011) 15 SCR 92
relied on
Para 17
(2012) 3 SCR 630
relied on
Para 18
CRIMINAL APPELLATE JURISDICTION: Review Petition
(Criminal) Nos. 637-638 of2015 in Criminal Appeal Nos. 2486-2487 of
2014.
853
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854
SUPREME COURT REPORTS
[2017] 3 S.C.R.
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From the Judgment and Order dated 27.03.2012 of the High Court
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of Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Confirmation
CaseNo. l of2012andCriminalAppealNo.112of2012.
Anup Bhambhani, Sr.Adv, Nishant Gokhale, Yash S. Vijay, Senthil
Jagadeesan, Advs. for the Petitioner.
. Nishant Ramakantrao Katneshwarkar, Arpit Rai, Advs. for the
Respondent.
The Judgment of the Court was delivered by
UDAY UMESH LALIT, J. I. These Review Petitions are
C directed against the Judgment and Order dated 26.11.2014 passed by
this Court in Criminal Appeal Nos.2486-87 of2014 affirming conviction
of the petitioner for the offences punishable under Sections 302, 363,
367, 376(2)(f) and 201 IPC and various sentences imposed upon the
petitioner including death sentence under Section 302 IPC and life
imprisonment under Section 376(2)(f) IPC. In view of the decision of
D this Court in Mohd. Arif @Ashfaq v. Registrar, Supreme Court of
India and others. 1, these review petitions were listed in Court for oral
hearing.
·
2. The facts leading to the filing of criminal appeals in this Court
including the nature and quality of evidence on record have been dealt
E with and considered in the Judgment of this Court dated 26.11.20142:
'The charge against the petitioner was that the victim, a minor girl of four
years was raped and battered to death by the petitioner. The petitioner
allegedly lured the victim by giving her chocolates, kidnapped her and
after satisfying his lust caused crushing injuries to her with the help of
F stones weighing about 8.5 kg and 7.5 kg. The prosecution relied upon
the evidence of PW2 Manisha, PW3 Mina!, PW5 Vandana and PW6
Baby Sharma who had seen the petitioner taking away the victim on a
bicycle on the fateful day. In his disclosure statement under Section 27
·:of the Evidence Act the petitioner had shown the place where dead
body of the victim was lying and the tap where he had washed his blood
G stained clothes. The medical evidence on record was dealt with in
paragraph 14 of the Judgment under review as under:-
14. According to the doctor, he had found during internal .
examination that under scalp haematoma was present over left
1 (2014) 9 sec 131
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2 (2015) 1 sec 253
VASANTA SAMPAT DUPARE v. STATE OF MAHARASHTRA
855
[UDAY UMESH LAUT, J.]
frontal and right frontal region of size 4cm x 4cm, dark red, the
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frontal bone was fractured and depressed, fracture line extended
up to occipital bone through right temporal and parietal bone
fracture on interior and middle cranial side. The subarachnoid
haemorrhage was present all over the brain surface and meninges
were congested. In his opinion, the cause of death was head injury,
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associated with the injury on the genitalregion. He has testified
that the two stones that were sent to him in sealed cover along
with the requisition, Ext.62, for opinion, could have been used to
cause the injuries on the victim. He has weighed the stones, which
are, 8.5kg and 7 .5kg, and has opined that there had been forceful
sexuaUntercourse."
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3. After taking into account the evidence and the circumstances
on record, this Court in the Judgment under review concluded as under:-
"On a critical analysis of the evidence on record, we are convinced
that the circumstances that have been clearly established are that
the appellant was seen in the courtyard where the minor girl and D
other children were playing; that the appellant was seen taking
the deceased on his bicycle; that he had gone to the grocery shop
owned by PW-6 to buy Mint chocolate along with her; that the
accused had told PW2 that the child was the daughter of his friend
and he was going to 'Tekdi-Wadi' along with the girl; that the E "
appellant had led to discovery of the dead body of the deceased, _
the place where he had washed his clothes and at his instance the
stones smeared with blood were recovered; that the medical
report clearly indicates about the injuries sustained by the deceased
on her body; that the injuries sustained on the private parts have
been stated by the doctor to have been caused by forcible sexual
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intercourse; that the stones that were seized were smeared with
blood and the medical evidence corroborates the fact that injuries
could have been caused by battering with stones; that the chemical
analysis report shows that the blood group found on the clothes of
the appellant; that the appellant has not offered any explanation
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with regard to the recovery made at his instance; and that nothing
h(ls been stated in his examination under Section 313 CrPC that
there w· any justifiable reason to implicate him in the crime in
question. Thus, we find that each of the incriminating
circumstances has been cle-arly established and the chain of
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SUPREME COURT REPORTS
[2017] 3 S.C.R.
circumstances are conclusive in nature to exclude any kind of
hypothesis, but the one proposed to be proved, and lead to a definite
conclusion that the crime was committed by the accused.
Therefore, we have no hesitation in affirming the judgment of
conviction rendered by the learned trial Judge and affirmed by
·the High Court."
4. On the issue of death sentence awarded to the petitioner, this
Com;t first considered the principles governing the matter in issue as
under:-
"39. Now we shall proceed to deal with the facet of sentence·. In
Bachan Singh v. State of Punjab3, the Court held thus:
"(a) The normal rule is thatthe offence of murder shall b'e punished
with the sentence of life imprisonment. The Court can depart
from that rule and impose the sentence of death only ifthere are
special reasons for doing so. Such reasons must be recorded in
writing before imposing the death sentence.
(b) While considering the question of sentence to be imposed for
the offence of murder under Section 302 of the Penal Code, the
Court must. have regard to every relevant circumstance relating
to th<: crime as well as the criminal. If the Court finds, but not
otherwise, that the offence is of an exceptionally depraved and
heinous character and constitutes, on account of its design and
the manner ofits execution, a source of grave danger to the society
at large, the Court may impose the death sentence."
40. ln Bachan Singh case3 the Court referred to the decision in
Furman v. Georgia4 and noted the suggestion given by the learned
counsel_ about the aggravating and the mitigating circumstances.
While discussing about the aggravating circumstances, the Court
noted the aggravating circumstances suggested by the counsel·
which read as follows: (Bachan Singh case3, SCC p. 749, para
202)
"Aggravating circumstances.-A court may, however, in the
following cases impose the penalty of death in its discretion:
(a) ifthe murder has been committed after previous planning and
involves extreme brutality; or
' (1980) 2 sec 684
4 33 L.Ed. 2d 346 = 408 us 238 (1972)
VASANTA SAMPAT DUPARE v. STATE OF MAHARASHTRA
857
'·
[UDAY UMESH LAUT, J.]
(b) ifthe murder involves exceptional depravity; or
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(c) ifthe murder is of a member of any of the armed forces of the
Union or ofa memberofany 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."
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After reproducing the same, the Court opined: (SCC p. 749, para
203)
"
"203. Stated broadly, there can be no objection to the acceptance
· of these indicators but as we have indicated already, we would
prefer not to fetter judicial discretion by attempting to make an
exhaustive enumeration one way or the other."
(
41. ;[hereafter, the Court referred to the suggestions pertaining
to mitigating circumstances: (Bachan Singh casi, - SCC p.750
para 206)
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"Mitigating circumstances.-In the exercise of its discretion in
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the above cases, the court shall take into account the following
circumstances.-
(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 y~mng or old, he
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shall not be sentenced to death.
(3) The probability that the accused would not commifcriminal
. acts of violence as would constitute a continuing threat to society.
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(4) The probability that the accused can be reformed and
rehabilitated.
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The State shall by evidence prove that the accused does not satisfy
Conditions (3) and (4) above.
(5) That in the facts and circumstances of the case the accused
believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of
another person.
( 7) That the condition of the accused showed that he was mentally
defective and that the said defect impaired his capacity to
appreciate the criminality of his conduct."
After reproducing the above, the Court observed: (SCC p. 750,
para 207)
· "207. We will do no more than to say that these are undoubtedly
relevant circumstances and must be given great weight in the
determination of sentence.
42. In the said case, the Court has also held thus: (Bachan Singh
3
case' sec p. 751, para 209)
"209 . ... It is, therefore, imperative to voice the concern that
courts, aided by the broad illustrative guidelines indicated by us,
will discharge the onerous function with evermore scrupulous care
and humane concern, directed along the highroad of legislative
policy outlined in Section 3 54(3) viz. that for persons convicted of
murder, l~fe imprisonment is the rule and death sentence an
exception. A real and abiding concern for the dignity of human
life postulates resistance to faking a life through law's
instrumentality. That ought not to be done save in the rarest of
rare cases when the alternative option is unquestionably
foreclosed."
43. In Machhi Singh and others v. State of Punjab5 a threeJudge Bench has explained the concept ofrarest of the rare cases
by stating that: (SCC p. 487, para 32)
"32. The reasons why the community as a whole does not endorse ·
'(1983) 3 sec 470
VASANTA SAMPAT DUPARE v. STATE OF MAHARASHTRA
859
[UDAY UMESH LALIT, J.]
the humanistic approach reflected in 'death sentence-in-no-case'
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doctrine are not far to seek. In the first place, the very humanistic
edifice is constructed on the foundation of 'reverence for life'
principle. When a member of the community violates this very
principle by killing another member, the society may not feel itself
bound by the shackles of this doctrine. Secondly, it has to be
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realised that every member of the community is able to live with
safety without his or her own life being endangered because of
the protective arm of the community and on account of the rule of
law enforced by it. The very existence of the rule oflaw and the
fear of being brought to book operates as a deterrent of those
who have no scruples in killing others if it suits their ends. Every
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member of the community owes a debt to the community for this
protection."
44. Thereafter, after adverting to the aspects of the feeling of the
community and its desire for self-preservation, the Court opined
that the community may well withdraw the protection ·by D
sanctioning the death penalty. The Court in that regard ruled thus:
(Machhi Singh case, SCC p. 487, para 32)
"32 . ... But the community will not do so in every case. It may do
so 'in the rarest ofrare cases' when its collective conscience is
so shocked that it will expect the holders of the judicial power
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centre to inflict death penalty irrespective of their personal opinion
as regards desirability or otherwise ofretaining death penalty."
It is apt to state here that in the said case, emphasis was laid on
certain aspects, namely, manner of commission of murder, motive
for commission of murder, anti-social or socially abhorrent nature
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of the crime, magnitude of crime and personality of the victim of
murder.
45. After so enumerating, the propositions that emerged out from
Bachan Si~gh
3 were culled out which are as follows: (Machhi
Singh case , SCC p. 489, para 38)
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"38 . ... The following propositions emerge from Bachan Singh
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case:
'(i) The extreme penalty of death need not be inflicted except in
gravest cases of extreme culpability.
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[2017) 3 S.C.R.
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(ii) Before opting for the death penalty the circumstances of the
"offender" also require to be taken into consideration along with
the circumstances of the "crime".
(iii) Life imprisonment is the rule and
1 death sentence is an
exception. In other words death sentence must be imposed only
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when life imprisonment appears to be.an altogether inadequate
punishment having regard to the relevant circumstances of the
crime, and provided, and only provided, the option to impose
sentence of imprisonment for life cannot be conscientiously
exercised having regard to the nature and circumstances of the
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crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances
has to be drawn up and in doing so the mitigating cir.;umstances
have to be accorded full weightage and a just balance has to be
struck between the aggravating and the mitigating circumstanc.es
before the option is exercised."
46. Thereafter, the three-Judge Bench opined that to apply the
said guidelines, the following questions are required to be answered:
(Machhi Singh cas/, SCC p. 489, para 39)
"(a) Is there something uncommon about the crime which renders ·
sentence of imprisonment for life inadequate and calls for a death
sentence?
(b) Are the circumstances of the crime such that there is no
alternative but to impose death sentence even after according
maximum weightage to the mitigating circumstances .vhich speak
in favour of the offender?"
In the said case, the Court upheld the extreme penalty of death in
respect of three accused persons."
5. In the light of the principles as stated above, the facts of the
present matter were considered by this Court in the Judgment under
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"57. Keeping in view the aforesaid authorities, we shall proceed
to adumbrate what is the duty of the Court when the colleetive
conscience is shocked because of the crime committed. When
the crime is diabolical in nature and invites abhorrence of the
VASANTA SAMPAT DUPARE v. STATE OF MAHARASHTRA
· 861
[UDAY UMESH LAUT, J.]
collective, it shocks the judicial conscience and impels it to react A
keeping in view the collective conscience, cry of the community
for justice and the intense indignation at the manner in which the
brutal crime is committed. We are absolutely conscious that Judges
while imposing sentence, should never be swayed away by any
kind of individual philosophy and predilections. It should never B
have the flavour of Judge-centric attitude or perception. It has to
satisfy the test laid down in various precedents relating to the
rarest of the rare case. We are also required to pose two questions
that have been stated in Machhi Singh case·.
58. Presently; we shall proceed to dwell upon the manner in which
the crime was committed. Materials on record clearly reveal that
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the appellant was well acquainted with the inhabitants of the locality
and as is demonstrable he had access to the house of the father
of the deceased and the children used to call him "uncle". He had
lured the deceased to go with him to have chocolates. It is an act
of taking advantage of absolute innocence. He had taken the D
deceased from place to place by his bicycle and eventually raped
her in a brutal manner, as if he had an insatiable and ravenous
appetite:The injuries caused on the minor girfare likely to send a
chill in the spine of the society and shiver in the marrows of human
conscience. He had battered her to death by assaulting her with
two heavy stones. The injured minor girl could not have shown
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any kind of resistance. It is not a case where the accused had a
momentary lapse. It is also not a case where the minor child had
died because of profuse bleeding due to rape but because of the
deliberate cruel assault by the appellant. After the savage act
was over, the coolness of the appellant is evident, for he washed
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the clothes on the tap and took proper care to hide things. As is
manifest, he even did not think for a moment the trauma and
torture that was caused to the deceased. The gullibility and
vulnerability of the four year girl, who could not have nurtured
any idea about the maladroitly designed biological desires of this
nature, went with the uncle who extinguished her life-spark. The
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barbaric act of the appellant does not remotely show any concern
for the precious life of a young minor child who had really not
seen life. The criminality of the conduct of the appellant is not
only depraved and debased, but can have a menacing effect on
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the society. It is calamitous.
60. In the case at hand, as we find, not only was the rape
committed in a brutal manner but murder was also committed in a
barbaric manner. The rape of a minor girl child is nothing but a
monstrous burial of her dignity in the darkness. It is a crime against
the holy body of a girl child and the soul of society and such a
crime is aggravated by the manner in which it has been committed.
The nature of the crime and the manner in which it has been
committed speaks about its uncommonness. The crime speaks of
depravity, degradation and uncommonality. It is diabolical and
barbaric. The crime was committed in an inhuman manner.
Indubitably, these go a long way to establish the aggravating
circumstances.
61. We are absolutely conscious that mitigating circumstances
are to be taken into consideration. The learned counsel for the
appellant pointing out the mitigating circumstances would submit
that the appellant is in his mid-fifties and there is possibility of his
reformation. Be it noted, the appellant was aged about forty-seven
years at the time of commission of the crime. As is noticeable,
there has been no remorse on the part of the appellant. There are
cases when this Court has commuted the death sentence to life
finding that the accused has expressed remorse or the crime was
not premeditated. But the obtaining factual matrix when unfolded
stage by stage would show the premeditation, the proclivity and
the rapacious desire. The learned counsel would submit that the
appellant had no criminal antecedents but we find tho ~ he was a
history-sheeter and had a number of cases pending ag . .tinst him.
That alone may not be sufficient. The appalling cruelty shown by
him to the minor girl child is extremely shocking and it gets
accentuated, when his age is taken into consideration. It was not
committed under any mental stress or emotional disturbance and
it is difficult to comprehend that he would not commit such acts
and would be reformed or rehabilitated. As the circumstances
would graphically depict, he would remain a menace to society,
for a defenceless child has become his prey. In our considered
opinion, there are no mitigating circumstances."
6. The above quoted observations of this Court in Judgment under
H review show that the aggravating facts were considered in paragraphs
VASANTA SAMPAT DUPARE v. STATE OF MAHARASHTRA
863
[UDAY UMESH LALIT, J.]
58 and 60 and the entirety of the matter including the mitigating A
circumstances were dealt with more particularly in paragraph 61. The
;:ggravating facts not Only showed the extreme depravity but in the opinion
,'lfthis Court they brought to the fore the diabolical and barbaric manner
in which the crime was committed. The Court did not find any mitigating
circumstances in favour of the accused to tilt the balance in his favour
for awarding lesser punishment.
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7. At this juncture, it may be noted that the decision of this Court
in Machhi Singh (supra) shows that after having laid down oft-quoted
principles, this Court considered individual cases of accused Machhi
Singh, Jagir Singh and Kashmir Singh. As regards Machhi Singh, it was
observed in paragraph 42:-
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" ....... The offence committed was of an exceptionally depraved
and heinous character. The manner of its execution and its design
would put it at the level of extreme atrocity and cruelty.
The crime committed carries features which could be
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utterly horrendous especially when we know the weapons and
the manner of their use. The victims could offer no resistance to
the accused appellants. The law clamours for a sterner sentence; ·
the crime being heinous, atrocious and cruel.
........ The crime was gruesome and cold-blooded revealing the
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propensity of the accused appellants to commit murder."
Similarly as regards Jagir Singh it was observed,
" ....... The crime committed carries features which could be utterly
horrendous especially when we know the weapons and their
manner of use. The victims could offer no resistance to the accused
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appellants. The la w clamours for a sterner sentence; the crime
being heinous, atrocious and cruel.
......... The helpless state of the victims and the circumstances
of the case lead us to confirm the death sentence."
8. Further, paragraphs 44 and 45 show that one of the accused
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namely Kashmir Singh had caused the death of a defenceless child of
six years and the matter as regards said accused Kashmir Singh in
particular and with regard to all the accused in general, was dealt with
as under:-
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"44. Insofar as appellant Kashmir Singh s/o Arjan Singh is
concerned death sentence has been imposed on him by the Sessions
Court and confirmed by the High Court for the following reasons:
Similarly, Kashmir Singh appellant caused the death of a child
Balbir Singh aged six years while asleep, a poor defenceless life
put off by a depraved mind reflecting grave propensity to commit
murder.
45. We are of the opinion that insofar as these three appellants
are concerned the rarest ofrare cases rule prescribed in Bachan
Singh case is clearly attracted and sentence of death is called
for. We are unable to persuade ourselves that a sentence of
imprisonment for life will be adequate in the circumstances of the
crime. We therefore fully uphold the view concurrently taken by
the Sessions Court and the High Court that extreme penalty of
death requires to be imposed on appellants (1) Machhi Singh (2)
Kashmir Singh s/o Arjan Singh (3) Jagir Singh. We accordingly
confirm the death sentence imposed on them and dismiss their
appeals."
9. The assessment and the consideration bestowed by this Court
in Machhi Singh (supra) shows that the aggravating circumstances
namely the manner in which the crime was committed, the brutality and
barbaric manner of execution, the status and helplessness of victims and
the fact that the crime was gruesome and cold blooded were given due
weightage. These facts themselves were found to be tilting t!ie balance
against the concerned accused. In the present case a minor girl of four
years was raped and battered to death by the petitioner. The brutality
and diabolical nature of the crime and the fact that the victim had reposed
trust and confidence in the petitioner was taken into account and this
Court found the aggravating circumstances completely outweighing the
other factors. The evidence and circumstances were dealt with in the
Judgment under review in great detail and this Court had no hesitation in
affirming the death sentence.
I 0. In the present Review Petition, Mr. An up Bhambhani, learned
Senior Advocate appearing for the petitioner, at the outset, raised a
grievance that in the light of principles laid down in Bachan Singh and
Machhi Singh (supra) mitigating factors ought to have been taken into
account and that proper and effective hearing in that behalf was not
VASANTA SAMPAT DUPARE v. STATE OF MAHARASHTRA
865
[UDAY UMESH LAUT, J.]
extended to the petitioner. This Court therefore by Order dated 31.08.2016 A
pennitted the petitioner to file material to indicate mitigating factors for
conversion of the death sentence to life imprisonment. This was in
keeping with the principles laid down by this Court in Dagdu and Others
v. State of Maharashtra6 wherein three Judge Bench of this Court had
observed:-
"79 ..... The Court, on convicting an accused, must unquestionably
hear him on the question of sentence. But if, for any reason, it
omits to do so and the accused makes a grievance of it in the
higher court, it would be open to that Court to remedy the breach
by giving a hearing to the accused on the question of sentence."
80 ........ For a proper and effective implementation of the
provision contained in Section 235(2), it is not always necessary
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to remand the matter to the court which has recorded the
conviction ...... Remand 'is an exception, not the rule, and ought
therefore to be avoided as far as possible in the interests of
expeditious, though fair, disposal of cases."
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11. The petitioner thereafter filed Crl.M.P. Nos.16369-70of2016
placing on record certain facts and material. It was submitted :-
"Education and Activities undertaken· by the Petitioner in
Jail
i) The Petitioner submits that he had to discontinue school after
class 61h during childhood. Thereafter he worked in various
jobs such as electrician, construction labourer, nursery worker,
security guard. Death row prisoners in Maharashtra are not
pennitted to work, but the Petitioner as an undertial has worked
in the jail nursery. During incarceration, the Petitioner has
undertaken studies, art competitions as well as several
programmes aimed at refonning himself. The Petitioner's
counsel is informed that his drawings are exhibited in jail as
well.
ii) The Petitioner has in 2015 successfully completed the Bachelors
Preparatory Programme offered by the Indira Gandhi National
Open University. This course enables people who have
discontinued schooling before matriculation to prepare for
'(1977) 3 sec 68
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bachelors-level studies.
iii) The Petitioner in 2015 also successfully completed the Gandhi
Vichar Pariksha (Examinaiton on @andhian Thoughts). This
examination seeks to rehabilitate prisoners who have committed
violent crimes, by learning from the life and teaching ofM.K.
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Gandhi. The course includes classes on the teachings ofM.K.
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Gandhi, reading his autobiography, and a descriptive exam.
iv) The Petitioner is quite proficient in drawing and has also
participated in a drawing competition organized by the Nagpur
Municipal Corporation and Kalajam Foundation on l 0.01.2016.
v) It is therefore submitted that the Petitioner is on the path to
reformation and rehabilitation and therefore the death sentence
imposed on liim deserves to be commuted to imprisonment for
life."
The application then set out that the Disciplinary Record of the
D Petitioner in Jail was without any blemish and that there were no criminal
antecedents.
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12. The matter was thereafter posted for hearing. Mr. Anup
Bhambhani, learned Senior Advocate principally submitted:-
a. The judgment of conviction and order of sentence were passed
by the trial court on the same day namely on 23.02.2012 which
was completely opposed to the law laid down by this Court in
Allauddin Mian and Others v. State of Bihar7 and against the
spirit of Section 235(2) of the CrPC.
b. As laid down in para 206 of Bachan Singh (supra) "the
probability that the accused can be reformed" was an important
facet and the burden was on the State to prove by evidence that
the accused could not possibly be reformed. However, such burden
was not discharged by the State and no evidence was led. In the
absence of such evidence by the State, no death sentence could
be awarded or confirmed.
13. Para 10 of the decision of this Court in Allauddin Mian v.
State of Bihar (supra) on which reliance was placed, is to the following
effect:-
1 (1989) 3 secs
VASANTA SAMPAT DUPARE v. STATE OF MAHARASHTRA
867
[UDAY UMESH LAUT, J.]
10. Even a casual glance at the provisions of the Penal Code will
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show that the punishments have been carefully graded
corresponding with the gravity of offences; in grave wrongs the
punishments prescribed are strict whereas for minor offences
leniency is shown. Here again there is considerable room for
manoeuvre because the choice of the punishment is left to the
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discretion of the judge with only the outer limits stated. There are
only a few cases where a minimum punishment is prescribed.
The question then is what procedure does the judge follow for
determining the punishment to be imposed in each case to fit the
crime? The choice has to be made after following the procedure
set out in sub-section (2) of Section 235 of the Code. That subC
section reads as under:
If the accused is convicted, the judge shall, unless he proceeds
in accordance with the provisions of Section 360, hear the
accused on the question of sentence, and then pass sentence
on him according to law.
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The requirement of hearing the accused is intended to satisfy the
rule of natural justice. It is a fundamental requirement of fair play
that the accused who was hitherto concentrating on the pn~secution
evidence on the question of guilt should, on being found guilty, be
asked ifhe has anything to say or any evidence to tender on the
question of sentence. This is all the more necessary since the
courts are generally required to make the choice from a wide
range of discretion in the matter of sentencing. To assist the court
in determining the correct sentence to be imposed the legislature
introduced sub-section (2) to Section 235. The said provision
therefore satisfies a dual purpose; it satisfies the rule of natural
justice by according to the accused an opportunity of being heard
on the question of sentence and at the same time helps the court
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to choose the sentence to be awarded. Since the provision is
intended to give the accused an opportunity to place before the
court all the relevant material having a bearing on the question of G
sentence there can be no doubt that the provision is salutary and
must be strictly followed. It is clearly mandatory and should not
be treated as a mere formality. Mr Garg was, therefore, justified
in making a grievance that the trial court actually treated it as a
mere formality as is evident from the fact that it recorded the
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finding of guilt on 31-3-1987, on the same day before the accused
could absorb and overcome the shock of conviction they were
asked if they had anything to say on the question of sentence and
immediately thereafter the decision imposing the death penalty on
the two accused was pronounced. In a case of life or death as
stated earlier, the presiding officer must show a high decree of
concern for the statutory right of the accused and should not treat
it as a mere formality to be crossed before making the choice of
sentence. If the choice is made, as in this case, without giving the
accused an effective and real opportunity to place his antecedents,
social and economic background, mitigating and extenuating
circumstances, etc., before the court, the court's decision on the
sentence would be vulnerable.