# 'X' v. STATE OF MAHARASHTRA

- **Citation:** [2019] 6 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2019-04-12
- **Case number:** Criminal Appeal No. 680 of 2007
- **Bench:** N.V. Ramana, Mohan M. Shantanagoudar, Indira Banerjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/x-v-state-of-maharashtra-33849
- **Pages:** 40

## Headnote

Code of Criminal Procedure, 1973 :
ss. 235(2) and 465 - Pre-sentence hearing - Object and
purpose of - Whether pre-sentencing hearing, if conducted on the
date of conviction, is in contravention of s. 235(2) - Held: Object
of s. 235(2) is to provide an opportunity for accused to adduce
mitigating circumstances - As long a purpose of s. 235(2) is met,
inasmuch as the accused is afforded a real and effective opportunity
to plead his case in respect of sentencing, there is no bar on presentencing hearing taking place on the same day as of conviction -
Even assuming that a procedural irregularity is committed by trial
court to a certain extent on the question of hearing on sentence,
the violation can be remedial by appellate court - However, in view
of s.465 the appellate Court can reverse or alter order of competent
jurisdiction on account of any error or irregularity only when such
error/irregularity results in failure of justice - In the facts of
the present case it cannot be said that the procedure envisaged
u/s. 235(2) was not complied with.
Sentence / Sentencing
Imposition of sentence - Need to give reasons - Held: Trial
court is obliged to give reasons for imposition of sentence - Any
increase or decrease in the quantum of punishment than the usual
levels need to be reasoned - The principle is fortified by the statute
u/s. 235(2) Cr. P.C. as also by judicial interpretation - However,
any reasoning dependent on moral and personal opinion/notion of
a judge about an offence needs to be avoided.
 [2019] 6 S.C.R. 1
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SUPREME COURT REPORTS
[2019] 6 S.C.R.
Sentencing discretion - Exercise of - Held: Power to exercise
discretion in giving punishment, should be exercised by Judges in a
principled manner - A strict fixed punishment approach in
sentencing cannot be accepted.
Death sentence - Post-conviction mental illness - Whether a
mitigating factor for converting a death sentence to life
imprisonment - Held:Post-conviction mental illness is based on
appreciation of punishment and right to dignity - The Constitution
embodies broad and idealistic concepts of dignity, civilized standards,
humanity and decency against which penal measures have to be
evaluated - There is strong international consensus against the
execution of individuals with mental illness - Various Prison Rules
also recognise post-conviction mental illness as a relevant factor
for Government to consider under its clemency jurisdiction - In the
present case, since the mitigating factors were not present at the
time of commission of crime, this ground needs to be utilized only in
extreme cases of illness - There is no set disorders/disabilities for
evaluating 'severe mental illness' - However, a 'test of severity' can
be a guiding factor for recognizing those mental illnesses which
qualify for an exemption - Post-conviction severe mental illness
will be a mitigating factor that the appellate court, in appropriate
cases needs to consider while sentencing an accused to death penalty
- Assessment of such disability is to be conducted by a multidisciplinary team of qualified professionals - Burden to prove severe
mental illness is on the accused - In the present case assessment by
the Psychiatrist with regard to mental illness of the accused is without
any objective factor for such assessment and seems to be incomplete
- However, in the facts of the case, it is not appropriate to constitute
a panel for reassessment of the mental health of the accused - In
view of fact situation of the case, life imprisonment simplicitor would
be inadequate - Therefore, death sentence is commuted to
imprisonment for remainder of his life sans any right to remission -
Constitution of India - Arts. 20(1) and 21 - Mental Healthcare Act,
2017 - ss. 3 and 20(1) - Penal Code, 1860 - s. 84.
Mental Healthcare Act, 2017:
s.103 - Prisoners in jail - Cannot be ignored and left to rot
away - State is obliged to act as a parens patriae - The Act aspires
to provide mental health care

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ACCUSED 'X'
v.
STATE OF MAHARASHTRA
(Review Petition (Criminal) No. 301 of 2008)
In
(Criminal Appeal No. 680 of 2007)
APRIL 12, 2019
[N.V. RAMANA, MOHAN M. SHANTANAGOUDAR AND
INDIRA BANERJEE, JJ.]
Code of Criminal Procedure, 1973 :
ss. 235(2) and 465 - Pre-sentence hearing - Object and
purpose of - Whether pre-sentencing hearing, if conducted on the
date of conviction, is in contravention of s. 235(2) - Held: Object
of s. 235(2) is to provide an opportunity for accused to adduce
mitigating circumstances - As long a purpose of s. 235(2) is met,
inasmuch as the accused is afforded a real and effective opportunity
to plead his case in respect of sentencing, there is no bar on presentencing hearing taking place on the same day as of conviction -
Even assuming that a procedural irregularity is committed by trial
court to a certain extent on the question of hearing on sentence,
the violation can be remedial by appellate court - However, in view
of s.465 the appellate Court can reverse or alter order of competent
jurisdiction on account of any error or irregularity only when such
error/irregularity results in failure of justice - In the facts of
the present case it cannot be said that the procedure envisaged
u/s. 235(2) was not complied with.
Sentence / Sentencing
Imposition of sentence - Need to give reasons - Held: Trial
court is obliged to give reasons for imposition of sentence - Any
increase or decrease in the quantum of punishment than the usual
levels need to be reasoned - The principle is fortified by the statute
u/s. 235(2) Cr. P.C. as also by judicial interpretation - However,
any reasoning dependent on moral and personal opinion/notion of
a judge about an offence needs to be avoided.
 [2019] 6 S.C.R. 1
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Sentencing discretion - Exercise of - Held: Power to exercise
discretion in giving punishment, should be exercised by Judges in a
principled manner - A strict fixed punishment approach in
sentencing cannot be accepted.
Death sentence - Post-conviction mental illness - Whether a
mitigating factor for converting a death sentence to life
imprisonment - Held:Post-conviction mental illness is based on
appreciation of punishment and right to dignity - The Constitution
embodies broad and idealistic concepts of dignity, civilized standards,
humanity and decency against which penal measures have to be
evaluated - There is strong international consensus against the
execution of individuals with mental illness - Various Prison Rules
also recognise post-conviction mental illness as a relevant factor
for Government to consider under its clemency jurisdiction - In the
present case, since the mitigating factors were not present at the
time of commission of crime, this ground needs to be utilized only in
extreme cases of illness - There is no set disorders/disabilities for
evaluating 'severe mental illness' - However, a 'test of severity' can
be a guiding factor for recognizing those mental illnesses which
qualify for an exemption - Post-conviction severe mental illness
will be a mitigating factor that the appellate court, in appropriate
cases needs to consider while sentencing an accused to death penalty
- Assessment of such disability is to be conducted by a multidisciplinary team of qualified professionals - Burden to prove severe
mental illness is on the accused - In the present case assessment by
the Psychiatrist with regard to mental illness of the accused is without
any objective factor for such assessment and seems to be incomplete
- However, in the facts of the case, it is not appropriate to constitute
a panel for reassessment of the mental health of the accused - In
view of fact situation of the case, life imprisonment simplicitor would
be inadequate - Therefore, death sentence is commuted to
imprisonment for remainder of his life sans any right to remission -
Constitution of India - Arts. 20(1) and 21 - Mental Healthcare Act,
2017 - ss. 3 and 20(1) - Penal Code, 1860 - s. 84.
Mental Healthcare Act, 2017:
s.103 - Prisoners in jail - Cannot be ignored and left to rot
away - State is obliged to act as a parens patriae - The Act aspires
to provide mental health care to those who are in need, including
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the prisoners - State is obliged to set up mental health establishment
in the medical wing of at least one prison in each State/Union
Territory - State directed to consider the case of the accused under
the appropriate provisions of the Act.
Partly allowing the Review Petition, the Court
HELD: 1.1 Section 235(2) of CrPC implies that once the
judgment of conviction is pronounced, the Court will hear the
accused on the question of sentence and at that stage, it is open
to the accused to produce such material on record as is available
to show the mitigating circumstances in his favour. In other words,
the accused at this stage argues for imposition of lesser sentence
based on such mitigating circumstances as brought to the notice
of the Court by him. Section 235(2) of CrPC mandates PreSentence Hearing for the accused and imbibes a cardinal principle
that the sentence should be based on 'reliable, comprehensive
information relevant to what the Court seeks to do'. In case the
minimum sentence is proposed to be imposed upon the accused,
the question of providing an opportunity under Section 235(2)
would not arise. [Paras 15, 16 and 32][19-B-D; 25-C-D]
Bachan Singh v. State of Punjab (1980) 2 SCC
684 - followed.
Sevaka Perumal v. State of Tamil Nadu AIR 1991 SC
1463 : [1991] 2 SCR 711 ; State of Maharashtra v.
Sukhdev Singh (1992) 3 SCC 700 : [1992] 3 SCR
480 ; Jai Kumar v. State of Madhya Pradesh AIR 1999
SC 1860 ; Anshad v. State of Karnataka (1994) 4 SCC
381 ; B.A. Umesh v. Registrar General, High Court of
Karnataka (2017) 4 SCC 124 : [2016] 5 SCR 438 ;
Mukesh v. State (NCT of Delhi) (2017) 3 SCC 717 ;
Mukesh v. State (NCT of Delhi) (2017) 6 SCC 1 : [2017]
6 SCR 1 ; Chhannu Lal Verma v. State of Chhattisgarh
2019 AIR 243 ; Santosh Kumar Satishbhushan Bariyar
(2009) 6 SCC 498 : [2009] 9 SCR 90 ; Rajendra
Prahladrao Wasnik v. State of Maharashtra
2019 AIR 1 ; 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 - relied on.
ACCUSED 'X' v. STATE OF MAHARASHTRA
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Santa Singh v. The State of Punjab (1976) 4 SCC
190 : [1977] 1 SCR 229 ; Dagdu and others v. State of
Maharashtra (1977) 3 SCC 68 : [1977] 3 SCR 636 ;
Rajendra Prasad v. State of Uttar Pradesh AIR 1979
SC 916 : [1979] 3 SCR 78 ; 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 ; Malkiat Singh v. State of Punjab
(1991) 4 SCC 341 : [1991] 2 SCR 256 ; Anguswamy v.
State of Tamil Nadu (1989) 3 SCC 33 - referred to.
1.2 The object of Section 235(2) of Cr.P.C is to provide an
opportunity for accused to adduce mitigating circumstances. This
does not mean, however, that the Trial Court can fulfil the
requirements of Section 235(2) of Cr.P.C. only by adjourning the
matter for one or two days to hear the parties on sentence. If the
accused is ready to submit his arguments on this aspect on the
very day of pronouncement of the judgment of conviction, it is
open for the Trial Court to hear the parties on sentence on the
same day after passing the judgment of conviction. In a given
case, based on facts and circumstances, the Trial Court may
choose to hear the parties on the next day or after two days as
well. [Para 33][25-E-G]
1.3 As long as the spirit and purpose of Section 235(2) is
met, inasmuch as the accused is afforded a real and effective
opportunity to plead his case with respect to sentencing, whether
simply by way of oral submissions or by also bringing pertinent
material on record, there is no bar on the pre-sentencing hearing
taking place on the same day as the pre-conviction hearing.
Depending on the facts and circumstances, a separate date may
be required for hearing on sentence, but it is equally permissible
to argue on the question of sentence on the same day if the parties
wish to do so. [Para 34][25-G-H; 26-A-B]
1.4 Even assuming that a procedural irregularity is
committed by the trial court to a certain extent on the question
of hearing on sentence, the violation can be remedied by the
appellate Court by providing sufficient opportunity of being heard
on sentence. Section 465 of CrPC mandates that no finding,
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sentence or order passed by the Court of competent jurisdiction
shall be reversed or altered by the Court of appeal on account of
any error, omission or irregularity in the order, judgment and
other proceedings before or during trial unless such error,
omission or irregularity results in a failure of justice. Such noncompliance can be remedied by the appellate Court by either
remanding the matter in appropriate cases or by itself giving an
effective opportunity to the accused. [Para 35][26-B-D]
1.5 There is no dispute that under Criminal Justice System
in India, the highest discretion is provided to trial courts.
Sometimes appellate courts, in order to preserve the competing
factors in play, provides discretion for the trial court to operate.
However, appellate court must adopt a 'cautionary approach' when
providing such indulgence, which must be restricted and balanced
against competing interests. The approach of Supreme Court
needs to be rationalized and understood in the light of cautionary
approach. Thus, the term 'hearing' occurring under Section 235(2)
requires the accused and prosecution at their option, to be given
a meaningful opportunity. Meaningful hearing under Section
235(2) of CrPC, in the usual course, is not conditional upon time
or number of days granted for the same. It is to be measured
qualitatively and not quantitatively. The trial court need to comply
with the mandate of Section 235(2) of CrPC with best efforts.
Non-compliance can be rectified at the appellate stage as well,
by providing meaningful opportunity. If such an opportunity is
not provided by the trial court, the appellate court needs to
balance various considerations and either afford an opportunity
before itself or remand back to trial court, in appropriate case,
for fresh consideration. However, the accused need to satisfy
the appellate courts, inter alia by pleading on the grounds as to
existence of mitigating circumstances, for its further
consideration. Being aware of certain harsh realities such as long
protracted delays or jail appeals through legal aid etc., wherein
the appellate court, in appropriate cases, may take recourse of
independent enquiries on relevant facts ordered by the court
itself. If no such grounds are brought by the accused before the
appellate courts, then it is not obligated to take recourse under
Section 235 (2) of CrPC. [Paras 37 and 38][26-F-G; 27-B-G]
ACCUSED 'X' v. STATE OF MAHARASHTRA
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1.6 The record in the instant matter clearly shows that the
accused was accorded a real and effective opportunity at the trial
stage itself. Further, the opportunity granted to the petitioner
by the High Court to adduce further material on this aspect was
above and beyond the requirement of Section 235(2). The Courts
had taken all the attendant circumstances into account before
reaching the conclusion of awarding the death penalty. It is also
not the case that the accused made a request for hearing on
sentencing on a separate date and the same was refused. In such
circumstances, it cannot be said that the procedure envisaged in
Section 235(2) of CrPC was not complied with in the present
case. [Para 43][29-B-C]
2.1 The World Health Organisation and the International
Red Cross, identify multiple circumstances such as overcrowding,
various forms of violence, enforced solitude, lack of privacy,
inadequate health care facilities, concerns about family etc, can
take a toll on the mental health of the prisoners. Due to the
prevailing lack of awareness about such issues, the prisoners
have no recourse and their mental health keeps on degrading
day by day. [Para 45][29-E-F]
2.2 This Court may not laydown a 'definitive sentencing
policy', which is rather a legislative function, however, the Courts
in India have addressed this problem in a principled manner having
regard to judicial standards and principles. These judicially setprinciples not only serve as instructive guidelines, but also
preserve the required discretion of the trial judges while
sentencing. However, achieving sentencing uniformity may not
only require judicial efforts, but even the legislature may be
required to step in. [Para 50][31-A-C]
Sunil Dutt Sharma vs. State (Govt. of NCT of Delhi)
(2014) 4 SCC 375 : [2013] 9 SCR 1000 - relied on.
Malimath Committee Report on Reforms in the
Criminal Justice System - referred to.
2.3 Sentencing is appropriate allocation of criminal
sanctions, which is mostly given by the judicial branch. This
process occurring at the end of a trial still has a large impact on
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the efficacy of a Criminal Justice System. It is established that
sentencing is a socio-legal process, wherein a judge finds an
appropriate punishment for the accused considering factual
circumstances and equities. In the light of the fact that the
legislature provided for discretion to the judges to give
punishment, it becomes important to exercise the same in a
principled manner. A strict fixed punishment approach in
sentencing cannot be acceptable, as the judge needs to have
sufficient discretion as well. [Para 47][30-B-C]
2.4 Considering that a large part of the exercise of
sentencing discretion is principled, a Judge in India needs to
keep in mind broad purposes of punishment, which are
deterrence, incapacitation, rehabilitation, retribution and
reparation (wherever applicable), unless particularly specified by
the legislature as to the choice. The purposes identified above,
marks a shift in law from crime-oriented sentencing to a holistic
approach wherein the crime, criminal and victim have to be taken
into consideration collectively. [Para 52][31-E-G]
Rajendra Prasad v. State of Uttar Pradesh (1979) 3
SCC 646 : [1979] 3 SCR 78 ; Piare Dusadh v. King
Emperor AIR 1944 FC 1 - referred to.
2.5 The reasoning of the trial court acts as a link between
the general level of sentence for the offence committed and to
the facts and circumstances. The trial court is obligated to give
reasons for the imposition of sentence, as firstly, it is a
fundamental principle of natural justice that the adjudicators must
provide reasons for reaching the decision and secondly, the
reasons assume more importance as the liberty of the accused is
subject to the aforesaid reasoning. Further, the appellate court
is better enabled to assess the correctness of the quantum of
punishment challenged, if the trial court has justified the same
with reasons. The aforesaid principle is fortified not only by the
statute under Section 235 (2) of CrPC but also by judicial
interpretation. Any increase or decrease in the quantum of
punishment than the usual levels need to be reasoned by the
trial court. However, any reasoning dependent on moral and
personal opinion/notion of a Judge about an offence needs to be
avoided at all costs. [Para 48][30-D-F]
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3.1 Sentencing generally involves curtailment of liberty and
freedom for the accused. Under Article 21 of the Constitution,
right to life and liberty cannot be impaired unless taken by jus
laws. [Para 56][33-D]
3.2 Usually, mitigating factors are associated with the
criminal and aggravating factors are relatable to commission of
the crime. These mitigating factors include considerations such
as the accused's age, socio-economic condition etc. [Para 55]
[33-B]
3.3 The present case pertains to death penalty, which
inevitably affects right to life, and is subjected to a various
substantive and procedural protections under criminal justice
system. An irreducible core of right to life is 'dignity'. The dignity
of human being inheres a capacity for understanding, rational
choice, and free will inherent in human nature, etc. The right to
dignity of an accused does not dry out with the judges' ink, rather,
it subsists well beyond the prison gates and operates until his
last breath. [Para 56][33-B]
Navtej Singh Johar v. Union of India AIR 2018 SC
4321 : [2018] 7 SCR 379 ; Common Cause v. Union of
India AIR 2018 SC 1665 : [2018] 6 SCR 1 - referred
to.
3.4 In the context of mentally ill prisoners it is pertinent to
mention that Section 20 (1) of the Mental Health Care Act, 2017,
Act No. 10 of 2017, explicitly provides that 'every person with
mental illness shall have a right to live with dignity'. [Para 56]
[33-G]
3.5 All human beings possess the capacities inherent in
their nature even though, because of infancy, disability, or senility,
they may not yet, not now, or no longer have the ability to exercise
them. When such disability occurs, a person may not be in a
position to understand the implications of his actions and the
consequence it entails. In this situation, the execution of such a
person would lower the majesty of law. [Para 57][33-G-H; 34-A]
3.6 Article 20(1) of the Indian Constitution imbibes the idea
communication/knowledge for the accused about the crime and
its punishment. It is this communicative element, which is
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ingrained in the sentence (death penalty), that gives meaning to
the punishments in a criminal proceeding. The notion of death
penalty and the sufferance it brings along, causes incapacitation
and is idealized to invoke a sense of deterrence. If the accused is
not able to understand the impact and purpose of his execution,
because of his disability, then the raison d'être for the execution
itself collapses. [Para 58][34-A-C]
Atkins v. Virginia 536 U.S. 304 (2002) - referred to.
3.7 Moreover, Article 20 of the Constitution guarantees
individuals the right not to be subjected to excessive criminal
penalty. The right flows from the basic tenet of proportionality.
By protecting even those convicted of heinous crimes, this right
reaffirm the duty to respect the dignity of all persons. Therefore,
Constitution embodies broad and idealistic concepts of dignity,
civilized standards, humanity, and decency against which penal
measures have to be evaluated. India is a signatory to the
Convention on Rights of Persons with Disabilities, which endorse
'prohibition of cruel, inhuman or degrading punishments' with
respect to disabled persons. Additionally, there is a strong
international consensus against the execution of individuals with
mental illness. [Para 60][34-E-G]
3.8 Various prison rules in India also recognizes that
generally the Government has the duty to pass appropriate orders
on execution, if a person is found to be lunatic. Thus, the Prison
Rules have already recognized post-conviction mental illness as
a relevant factor for Government to consider under its clemency
jurisdiction. [Para 61][35-A; C]
3.9 It must be recognized that insanity recognized under
IPC and the mental illness in the present case arise at a different
stage and time. Under IPC, Section 84 recognizes the plea of
legal insanity as a defence against criminal prosecution. This
defence is restricted in its application and is made relatable to
the moment when the crime is committed. Therefore, Section 84
of IPC relates to the mens rea at the time of commission of the
crime, whereas the plea of post-conviction mental illness is based
on appreciation of punishment and right to dignity. The different
normative standards underpinning the above consequently mean
different threshold standards as well. [Para 63][35-F-H]
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Surendra Mishra v. State of Jharkhand (2011) 3 SCC
(Cri.) 232 ; Amrit Bhushan Gupta v. Union of India
AIR 1977 SC 608 : [1977] 2 SCR 240 - relied on.
3.10 Considering the fact that the case is at the fag end of
the process and the mitigating factors were not emergent at the
time of commission of the crime, therefore this ground needs to
be utilized only in extreme cases of mental illness considering
the element of marginal retribution which survives. In any case,
considering that India has taken an obligation at an international
forum to not punish mental patients with cruel and unusual
punishments, it would be necessary for this Court to provide for
a test wherein only extreme cases of convicts being mentally ill
are not executed. Moreover, this Court cautions against
utilization of this dicta as a ruse to escape the gallows by pleading
such defense even if such ailment is not of grave severity.
[Para 64][36-A-C]
3.11 'Severe Mental Illness' under the 'International
Classification of Diseases (ICD)', which is accepted under Section
3 of the Mental Health Care Act, 2017, generally includeschizophrenic and delusional disorders, mood (affective)
disorders, including depressive, manic and bipolar forms,
neuroses, including phobic, panic and obsessive-compulsive
disorders, behavioural disorders, including eating, sleep and
stress disorders, personality disorders of different kinds.
[Para 66][36-G-H; 37-A-B]
3.12 There is no set disorders/disabilities for evaluating
the 'severe mental illness', however a 'test of severity' can be a
guiding factor for recognizing those mental illness which qualify
for an exemption. Therefore, the test envisaged herein predicates
that the offender needs to have a severe mental illness or
disability, which simply means that a medical professional would
objectively consider the illness to be most serious so that he
cannot understand or comprehend the nature and purpose behind
the imposition of such punishment. These disorders generally
include schizophrenia, other serious psychotic disorders, and
dissociative disorders-with schizophrenia. [Para 68][37-E-F]
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3.13 Following directions need to be followed in the future
cases : That the post-conviction severe mental illness will be a
mitigating factor that the appellate Court, in appropriate cases,
needs to consider while sentencing an accused to death penalty.
The assessment of such disability should be conducted by a multidisciplinary team of qualified professionals (experienced medical
practitioners, criminologists etc), including professional with
expertise in accused's particular mental illness. The burden is
on the accused to prove by a preponderance of clear evidence
that he is suffering with severe mental illness. The accused has
to demonstrate active, residual or prodromal symptoms, that the
severe mental disability was manifesting. The State may offer
evidence to rebut such claim. Court in appropriate cases could
setup a panel to submit an expert report. 'Test of severity'
envisaged herein predicates that the offender needs to have a
severe mental illness or disability, which simply means that
objectively the illness needs to be most serious that the accused
cannot understand or comprehend the nature and purpose behind
the imposition of such punishment. [Para 69][37-G-H; 38-A-D]
3.14 In the present case, the accused has submitted a report
of the Class-I Psychiatrist, indicating that he was suffering from
some sort of mental illness without providing any objective factors
for such assessment. Moreover, the expert opinion offered by a
Psychiatrist registered with the Maharashtra Medical Council
working as a co-ordinator of the Centre for Mental Health Law
and Policy, Indian Law Society, Pune, does not provide any further
clarity. The Court is not satisfied with such statements made by
the doctors as the assessment seems to be incomplete. However,
the present accused has been reeling under bouts of some form
of mental irritability since 1994, as apparent from the records.
Moreover, he has suffered long incarceration as well as a death
row convict. In the totality of circumstances, it is not appropriate
to constitute a panel for re-assessment of his mental condition,
in the facts and circumstances of the case. [Paras 70, 71 and
72][38-E; H; 39-C-D]
3.15 At the same time, a sentence of life imprisonment
simpliciter would be grossly inadequate in the instant case. Given
the barbaric and brutal manner of commission of the crime, the
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gravity of the offence itself, the abuse of the victims' trust by the
Petitioner, and his tendency to commit such offences as is evident
from his past conduct, it is extremely clear that the Petitioner
poses such a grave threat to society that he cannot be allowed to
roam free at any point whatsoever. In this view of the matter, it is
fit to direct that the Petitioner shall remain in prison for the
remainder of his life. It is a useful via media between the
imposition of the death penalty and life imprisonment simpliciter
(which usually works out to 14 years in prison upon remission).
The petition is allowed to the extent that the sentence
of death awarded to the Petitioner is commuted to imprisonment
for the remainder of his life sans any right to remission.
[Paras 73 and 74]39-E-H; 40-A-B]
Swamy Shraddananda (2) v. State of Karnataka (2008)
13 SCC 767 : [2008] 11 SCR 93 ; Union of India v. V.
Sriharan (2016) 7 SCC 1 : [2015] 14 SCR 613 ; Tattu
Lodhi v. State of Madhya Pradesh (2016) 9 SCC 675:
[2016] 3 SCR 561 - relied on.
Shatrughan Chauhan v. Union of India (2014) 3 SCC
1 : [2014] 1 SCR 609 ; Navneet Kaur v. State (NCT of
Delhi) (2014) 7 SCC 264 : [2014] 4 SCR 1138 ; Vasanta
Sampat Dupare v. State of Maharashtra (2017) 6 SCC
631 : [2017] 3 SCR 850 - referred to.
4.1 It is this state of 'accused x' that obliges the State to
act as parens patriae. In this state 'accused x' cannot be ignored
and left to rot away, rather, he requires care and treatment.
Generally, it needs to be understood that prisoners tend to have
increased affinity to mental illness. Moreover, due to legal
constraints on the recognition of broad-spectrum mental illness
within the Criminal Justice System, prisons inevitably become
home for a greater number of mentally-ill prisoners of various
degrees. There is no overlooking of the fact that the realities
within the prison walls may well compound and complicate these
problems. [Para 75][40-B-C]
4.2 In order to address the same, the Mental Healthcare
Act, 2017 was brought into force. The aspiration of the Act was
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to provide mental health care facility for those who are in need
including prisoners. The State Governments are obliged under
Section 103 of the Act to setup a mental health establishment in
the medical wing of at least one prison in each State and Union
Territory, and prisoners with mental illness may ordinarily be
referred to and cared for in the said mental health establishment.
Therefore, the State Government is directed to consider the case
of 'accused x' under the appropriate provisions of the Mental
Healthcare Act, 2017 and if found entitled, provide for his rights
under that enactment. [Paras 76 and 77][40-E-F]
Liebling, Maruna and McAra et al., The Oxford
Handbook of Criminology (6th Ed. (2017)) - referred
to.
Mohd. Arif @ Ashfaq v. The Registrar, Supreme
Court of India (2014) 9 SCC 737 : [2014] 11 SCR 1009
- referred to.
Case Law Reference
[2014] 11 SCR1009
referred to
Para 8
(1980) 2 SCC 684
followed
Para 10
[2014] 1 SCR 609
referred to
Para 10
[2014] 4 SCR 1138
referred to
Para 10
[2017] 3 SCR 850
referred to
Para 11
[1977] 1 SCR 229
referred to
Para 18
[1977] 3 SCR 636
referred to
Para 19
[1979] 3 SCR 78
referred to
Para 20
[1981] 3 SCR 270
referred to
Para 21
[1989] 2 SCR 498
referred to
Para 22
[1991] 2 SCR 256
referred to
Para 22
[1991] 2 SCR 711
relied on
Para 23
[1992] 3 SCR 480
relied on
Para 24
AIR 1999 SC 1860
relied on
Para 24
ACCUSED 'X' v. STATE OF MAHARASHTRA
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(1994) 4 SCC 381
relied on
Para 25
[2016] 5 SCR 438
relied on
Para 26
(2017) 3 SCC 717
relied on
Para 27
[2017] 6 SCR 1
relied on
Para 28
2019 AIR 243
relied on
Para 29
[2009] 9 SCR 90
relied on
Para 29
2019 AIR 1
relied on
Para 30
(1989) 3 SCC 33
referred to
Para 31
[1977] 3 SCR 711
relied on
Para 32
[2001] 3 SCR 669
relied on
Para 32
[2013] 9 SCR 1000
relied on
Para 50
[1979] 3 SCR 78
referred to
Para 51
AIR 1944 FC 1
referred to
Para 54
[2018] 7 SCR 379
referred to
Para 56
[2018] 6 SCR 1
referred to
Para 56
(2011) 3 SCC (Cri.) 232]
relied on
Para 63
[1977] 2 SCR 240
relied on
Para 63
[2008] 11 SCR 93
relied on
Para 64
[2015] 14 SCR 613
relied on
Para 64
[2016] 3 SCR 561
relied on
Para 64
CRIMINAL APPELLATE JURISDICTION : Review Petition
(Criminal) No. 301 of 2008 in Criminal Appeal No. 680 of 2007.
From the Judgment and Order dated 16.05.2008 of the Supreme
Court of India in Criminal Appeal No. 680 of 2007.
Ms. Nitya Ramakrishnan, Shadan Farasat, Saaduzzaman, Yash
S. Vijay, Ms. Ninni Susan Thomas, Ms. Shruti Narayan, Ms. Jahnavi
Sindhu, Advs. for the Petitioner.
Nishant Ramakantrao Katneshwarkar, Anoop Kandari, Advs. for
the Respondent.
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The Judgment of the Court was delivered by
N. V. RAMANA, J.
1. The instant proceedings pertain to the reopening of Review
Petition (Crl.) No. 301 of 2008 to review the final Judgment and Order
dated 16.05.2008 passed by this Court in Criminal Appeal No. 680 of
2007 dismissing the appeal filed by the Review Petitioner (hereinafter
"the Petitioner") and confirming his conviction under Sections 201, 363,
376 and 302 of the Indian Penal Code (in short, "the IPC"). Vide the
impugned judgment, this Court upheld the sentence of 2 years' rigorous
imprisonment each under Sections 201 and 363, 10 years' rigorous
imprisonment under Section 376 and the death sentence under Section
302, IPC imposed upon the Petitioner.
2. This petition raises complex questions concerning the relationship
between mental illness and crime. How can culpability be assessed for
sentencing those with mental illness? Is treatment better suited than
punishment? These are some of the questions we need to reflect upon in
this case at hand.
3. In line with Section 23 (1) of the Mental Healthcare Act, 2017,
(Act 10 of 2017) and the right to privacy of the accused herein, while
taking further action on this judgment, we direct the Registry to not
disclose the actual name of the accused and other pertinent information
which could lead to his identification as it concerns confidential
information. In this context we shall address the accused herein as
'accused x'.
4. Brief facts giving rise to the present petition are as follows; the
two deceased, viz. victim-1 (studying in the 4th standard) and victim-2
(studying in the 1st standard) were cousins staying at Gulumb,
Maharashtra, in a locality of homeless people (Beghar Vasti) at the house
of Ramdas Jadhav (PW-13, victim-1's father). The Petitioner lived in
the adjacent house with his family. On 13.12.1999, at about 6 p.m., the
Petitioner had gone to the grocery shop run by Sunil (PW-6), with his
daughter, Reshma (PW-8), where he met the two deceased girls, and on
the pretext of offering sweets, he led the girls to accompany him.
Thereafter, he committed the rape and murder of both girls, and threw
victim-2's body in a well situated in the field of the father of Sakharam
Bhiku Yadav (PW-11), and concealed the body of victim-1 in a "kalkache
bet" (place where bamboo trees and shrubs grow together thickly).
ACCUSED 'X' v. STATE OF MAHARASHTRA
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5. The Petitioner was apprehended by the villagers on the next
day, i.e. 14.12.1999, before whom he made an extra judicial confession
about the murder of victim-2. The same day, he also led the police to the
recovery of the bodies of the deceased as well as the discovery of the
spot of commission of rape, from where bloodstained earth and plants,
half-burnt bidis and broken bangles were recovered. The blood-stained
clothes worn by the Petitioner at the time of arrest were also seized.
The clothes of the deceased were recovered at his instance on
25.12.1999. The FIR came to be lodged by Jaysing Dinkar Jadhav, PW10,
the brother of the grandfather of the deceased.
6. The Trial Court in Sessions Case No. 142 of 2000 convicted
the Petitioner for the offences stated supra on the basis of the 'last
seen' evidence; motive of the accused; seizure of blood-stained clothes
worn by the accused; the Chemical Analysis Report showing that "A"
group blood was found on the shirt and pant of the Petitioner as well as
in his nail clippings, which was the blood group of both the deceased;
recovery of the bodies of the deceased at the instance of the accused;
discovery of the spot of commission of rape of the two deceased
wherefrom blood-stained earth and other incriminating articles were
seized; extra-judicial confession of the Petitioner; recovery of frocks at
his instance; and the false explanation given by the Petitioner. The Trial
Court found that all these circumstances formed a complete chain pointing
to the guilt of the Petitioner.
7. The High Court in Criminal Appeal No. 652 of 2001 and
Confirmation Case No.3 of 2001, confirmed the conviction and sentence
as awarded by the Trial Court, including the sentence of death, relying
upon all the aforementioned circumstances except for the alleged extrajudicial confession. This Court, in appeal, being Criminal Appeal No. 680
of 2007, confirmed the same, holding that the case at hand falls into the
category of the rarest of rare cases warranting punishment with death.
Review Petition (Crl.) No. 301 of 2008 filed by the Petitioner against the
above Judgment and Order of this Court was dismissed vide order dated
19.11.2008 by the same three-Judge Bench which had rendered the
Judgment in appeal, who after considering the matter by way of circulation
held that there was no merit in the petition.
8. A criminal miscellaneous petition being Crl. M.P. No. 5584 of
2015 was filed by the Petitioner seeking reopening of this review petition,
placing reliance on the decision of this Court dated 02.09.2014 in W.P.
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(Crl.) No. 77 of 2014 in Mohd. Arif @ Ashfaq v. The Registrar,
Supreme Court of India, (2014) 9 SCC 737, which held that in light
of Article 21 of the Indian Constitution, review petitions in death sentence
cases were required to be heard orally by a three-Judge Bench, and
specifically permitted the reopening of review petitions in all cases where
review petitions had been dismissed by circulation.
9. In light of the above decision, this Court has heard the review
petition filed by the Petitioner orally in the open Court.
10. Learned counsel for the Petitioner, Ms. Nitya Ramakrishnan,
did not raise any argument concerning the merits of the case, however
raised only the following two arguments:- firstly, that the Trial Court had
not given the Petitioner a separate hearing while awarding the sentence,
in direct contravention of Section 235(2) of the Code of Criminal
Procedure (in short, "CrPC"), which provides for the right of presentencing hearing as affirmed by this Court in Bachan Singh v. State
of Punjab, (1980) 2 SCC 684 and a plethora of other decisions; and
secondly, that the award of the death sentence to the Petitioner is contrary
to the ratio of the three-Judge Bench decision of this Court in Shatrughan
Chauhan v. Union of India, (2014) 3 SCC 1, followed in a four-Judge
Bench decision of this Court in Navneet Kaur v. State (NCT of Delhi),
(2014) 7 SCC 264, which held that the execution of persons suffering
from mental illness or insanity violates Article 21 of the Indian Constitution
and that such mental illness or insanity would be a supervening
circumstance meriting commutation of the death sentence to life
imprisonment.
11. Learned counsel for the Respondent, i.e. the State of
Maharashtra, Mr. Nishant Ramakantrao Katneshwarkar, on the other
hand, highlighted that the pre-sentencing hearing as envisaged under
Section 235(2) of the Cr.P.C need not be conducted on a separate date,
and the sentence awarded by the Trial Court does not stand vitiated
merely because the sentence with respect to hearing was not conducted
on a separate date. To that end, the counsel relied on the three-Judge
Bench decision of this Court in Vasanta Sampat Dupare v. State of
Maharashtra, (2017) 6 SCC 631. He also submitted that the Petitioner
is not suffering from any mental illness so as to warrant commutation of
the death sentence, and to that effect submitted certain medical reports.
12. On hearing this petition, this Court was of the opinion that
there was no merit in the Petitioner's submissions against the order of
ACCUSED 'X' v. STATE OF MAHARASHTRA
[N. V. RAMANA, J.]
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conviction, and it was therefore decided that this Court would hear only
on the aspects of sentencing pertaining to two issues.
13.The first relates to the implications of non-compliance of Section
235 (2) of CrPC during the sentencing process before the Trial Court.
The second issue concerns the mental illness of 'accused x', which was
raised for the first time in this Review Petition, after the judgment of this
Court in the earlier round.
14. On the first issue, the learned counsel on behalf of the Petitioner
contended that considering the fact that the procedural right of PreSentence Hearing, as envisaged under Section 235 (2) of CrPC, was
never provided to the accused, this mandated a fresh hearing before the
trial court on the sentencing aspect. In the instant case before us, the
principle argument advanced by the counsel for the Petitioner was that,
since the order of conviction and the order of sentence in the present
case were passed on the same day, no opportunity was awarded to the
Petitioner with regard to the sentence imposed upon him. Therefore, the
counsel contended that the order of sentence passed in the present case
is in violation of Section 235 (2) of the CrPC, which is an illegality vitiating
the entire sentence. The counsel vehemently argued that a holistic reading
of Section 235 (2) of the CrPC would indicate that the accused should
be given ample opportunity to produce materials in his favour so as to
place on record the mitigating circumstances which mandate the
imposition of lesser penalty.
15. It is pertinent at this point of time to note that countries following
the common law tradition, prosecution historically did not play any part
in the sentencing process and that it was mostly left for the judge to
decide. In India, under the old Code, no opportunity was provided, postconviction, for the accused to place relevant facts before the court. It
was only after the introduction of the present Code in 1973 that such a
hearing was provided for in accordance with modern penological
practices. At this stage it may be necessary to quote Section 235 of
CrPC, which provides for Pre-Sentence Hearing, among other things.
235. Judgment of acquittal or conviction.
...
(2) If the accused is convicted, the Judge shall, unless he proceeds
in accordance with the provisions of section 360, hear the accused
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on the question of sentence, and then pass sentence on him
according to law.
Section 235 (2) of CrPC implies that once the judgment of
conviction is pronounced, the Court will hear the accused on the question
of sentence and at that stage, it is open to the accused to produce such
material on record as is available to show the mitigating circumstances
in his favor. In other words, the accused at this stage argues for imposition
of lesser sentence based on such mitigating circumstances as brought to
the notice of the Court by him.
16.