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’.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
REVIEW PETITION (CRIMINAL) NO. 301 OF 2008
IN
CRIMINAL APPEAL NO. 680 OF 2007
ACCUSED ‘X’ Vs STATE OF MAHARASHTRA
N. V. RAMANA, J .
Dated: APRIL 12, 2019
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. victim1
(studying in the 4th standard) and
victim2
(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 (PW13,
victim1’
s father).
2
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 (PW6),
with his daughter, Reshma
(PW8),
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
victim2’
s body in a well situated in the field of the father of
Sakharam Bhiku Yadav (PW11),
and concealed the body of
victim1
in a “kalkache bet” (place where bamboo trees and
shrubs grow together thickly).
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 victim2.
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, halfburnt
bidis and broken
bangles were recovered. The bloodstained
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
3
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 bloodstained
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 bloodstained
earth and other incriminating articles were seized; extrajudicial
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
4
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 threeJudge
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. (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 threeJudge
Bench, and specifically permitted
the reopening of review petitions in all cases where review
petitions had been dismissed by circulation.
5
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 threeJudge
Bench decision of this Court in
Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1,
followed in a fourJudge
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.
6
11. Learned counsel for the Respondent, i.e. the State of
Maharashtra, Mr. Nishant Ramakantrao Katneshwarkar, on the
other hand, highlighted that the presentencing
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 threeJudge
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
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 noncompliance
of Section
235 (2) of CrPC during the sentencing process before the Trial
Court. The second issue concerns the mental illness of ‘accused
7
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.
8
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 PreSentence
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 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
9
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. 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 the case at hand, the accused
argues that his right to fair trial stands extinguished as he was
not provided a separate hearing for sentencing. This issue can be
resolved directly by relying on the interpretation of Section 235
(2) of CrPC and this Court’s jurisprudence built around PreSentence
Hearing.
17. As also highlighted by the Petitioner, this requirement has also
been affirmed by the fiveJudge
Bench of this Court in Bachan
Singh v. State of Punjab (supra), wherein it was also held that
at the stage of PreSentence
Hearing, the accused can bring on
record material or evidence, which may not be strictly relevant to
or connected with the particular crime under inquiry, but
nevertheless, may have a bearing on the choice of sentence.
10
18. The first case on this point is Santa Singh v. The State of
Punjab, (1976) 4 SCC 190, which was decided by a Division
Bench of this Court presided by Justice Bhagwati (as His
Lordship then was) and Justice Fazal Ali. This case revolved on
the fact that an accused in a double murder case was sentenced
to death without providing an opportunity of ‘hearing’ under
Section 235 (2) of CrPC, which was the only ground of appeal
before the Supreme Court. This Court, by two concurrent
opinions, remanded the matter back to the trial court for fresh
consideration on sentencing after giving an opportunity of
‘hearing’ to the accused. Justice Bhagwati interpreted Section
235 (2) of CrPC in the following manner“
This material may be placed before the court by
means of affidavits, but if either party disputes the
correctness or veracity of the material sought to be
produced by the other, an opportunity would have to
be given to the party concerned to lead evidence for
the purpose of bringing such material on record. The
hearing on the question of sentence, would be
rendered devoid of all meaning and content and it
would become an idle formality, if it were
confined merely to hearing oral submissions
without any opportunity being given to the
parties and particularly to the accused, to produce
material in regard to various factors bearing on the
question of sentence, and if necessary, to lead
evidence for the purpose of placing such material
before the court.
11
…
We are therefore of the view that the hearing
contemplated by section 235 (2) is not confined
merely to hearing oral submissions, but it is also
intended to give an opportunity to the prosecution
and the accused to place before the court facts and
material relating to various factors bearing on the
question of sentence and if they are contested by
either side, then to produce evidence for the purpose
of establishing the same. Of course, care would
have to be taken by the court to see that this
hearing on the question of sentence is not abused
and turned into an instrument for unduly
protracting the proceedings.”
(emphasis supplied)
Justice Fazal Ali, agreed with the aforesaid conclusion, and made
observations along the same lines.
19. The aforesaid ruling came to be questioned in Dagdu and
others v. State of Maharashtra, (1977) 3 SCC 68, wherein a
similar question came before this Court. This Court, while
repelling the submission of the counsel for the accused therein,
who argued that the ratio in Santa Singh Case (supra)
mandated compulsory remand of the case to the trial court, held
as under12
“But we are unable to read the judgment in Santa
Singh (supra) as laying down that the failure on the
part of the Court, which convicts an accused, to
'hear him on the question of sentence must
necessarily entail a remand to that Court in order
to afford to the accused an opportunity to. be
heard on the question of sentence. 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. That opportunity has to
be real and effective, which means that the accused
must be permitted to adduce before the Court all the
data which he desires to adduce on the question of
sentence. The accused may exercise that right either
by instructing his counsel to make oral submissions
to the Court or he may, on affidavit or otherwise, place
in writing before the Court whatever he desires to
place before it on the question of sentence. The Court
may, in appropriate cases, have to adjourn the
matter in order to give to the accused sufficient
time to produce the necessary data and to make
his contentions on the question of sentence. That,
perhaps, must inevitably happen where the conviction
is recorded for the first time by a higher court.
Bhagwati J. has observed in his judgment that care
ought to be taken to ensure that the opportunity of a
hearing on the question of sentence is not abused and
turned into an instrument for unduly protracting the
proceedings.”
(emphasis supplied)
13
20. In Rajendra Prasad v. State of Uttar Pradesh, AIR 1979 SC
916, the Supreme Court expressed its concern that the
mandatory PreSentence
Hearing had become nothing more than
a repetition of the facts of the case. The Bench hoped that “the
Bar will assist the Bench in fully using the resources of the new
provision to ensure sociopersonal
justice, instead of ritualising the
submissions on sentencing by reference only to materials brought
on record for proof or disproof of guilt”.
21. In the case of Muniappan v. State of Tamil Nadu, (1981) 3
SCC 11, the Supreme Court noted that the trial court had
sentenced the accused to death stating that when the accused
was asked to speak on the question of sentence, he did not say
anything. In such a case the Supreme Court noted that the
requirement of Section 235(2) was not discharged by merely
putting a formal question to the accused, and the court should
undertake genuine efforts. The Court observed therein that, “it is
the bounden duty of the judge to cast aside the formalities of the
court scene and approach the question of sentence from a broad,
sociological point of view”.
14
22. The question of providing sufficient time for PreSentence
Hearing was dealt with by the Court in Allauddin Mian v. State
of Bihar, (1989) 3 SCC 5. The Supreme Court observed that the
trial court had not provided sufficient time to the accused for
hearing on sentencing. Relevant factors, such as, the antecedents
of the accused, their socioeconomic
conditions, and the impact
of their crime on the community had not come on record, and in
the absence of such information deciding on punishment was
difficult. The Supreme Court therefore recommended that, “as a
general rule the trial courts should after recording the conviction
adjourn the matter to a future date and call upon both the
prosecution as well as the defence to place the relevant material
bearing on the question of sentence before it and thereafter
pronounce the sentence to be imposed on the offender”. The
aforesaid proposition was also reiterated in Malkiat Singh v.
State of Punjab, (1991) 4 SCC 341.
23. On the other hand, in Sevaka Perumal v. State of Tamil Nadu,
AIR 1991 SC 1463, this Court upheld the death sentence even
though it was argued that no time had been given to raise
grounds on sentencing by the trial court. This Court observed
15
that, during the appeal, the defence counsel had been unable to
provide any additional grounds on sentence and therefore no
prejudice had been caused to the accused.
24. In State of Maharashtra v. Sukhdev Singh, (1992) 3 SCC 700,
the Supreme Court clarified that while Section 309 of the CrPC
prescribed no power for adjournment of sentencing hearings,
these should be provided where the accused sought to produce
materials in capital cases. In Jai Kumar v. State of Madhya
Pradesh, AIR 1999 SC 1860, this Court observed that the trial
court had given an opportunity to the defence to produce
materials, which they chose not to do, and had considered the
mitigating circumstances raised by them. This Court opined that,
in such circumstances, it was not a miscarriage of justice that
the judge did not adjourn the hearing.
25. In Anshad v. State of Karnataka, (1994) 4 SCC 381, this Court
disapprovingly noted that the trial judge had dealt with
sentencing cryptically in one paragraph and this defeated the
very object of Section 235(2) of CrPC, exposing a “lack of
sensitiveness on his part while dealing with the question of
sentence”. Commuting the sentences of the appellants, the
16
Supreme Court observed that both the lower courts did not
appreciate the aggravating and mitigating circumstances and
therefore their entire approach to sentencing was incorrect.
26. The aforesaid principle was further elucidated in the case of B.A.
Umesh v. Registrar General, High Court of Karnataka, (2017)
4 SCC 124, wherein it was held that a review petition cannot be
allowed merely because no separate date was given for hearing on
the sentence. This Court held that Section 235(2) of CrPC does
not mandate separate date for the hearing of the sentence,
rather, it is dependent on the facts and circumstances of the
case, for instance, if parties insist to be heard on separate dates.
27. As per the order dated 03.02.2017 in Mukesh v. State (NCT of
Delhi), (2017) 3 SCC 717, this Court, having found that there
was no compliance of Section 235 (2) of CrPC by the court’s
below, observed as under“
Having considered all the authorities, we find
that there are two modes, one is to remand the
matter or to direct the accused persons to
produce necessary data and advance the
contention on the question of sentence.
Regard being had to the nature of the case, we
think it appropriate to adopt the second mode.
To elaborate, we would like to give opportunity
17
before conclusion of the hearing to the accused
persons to file affidavits along with documents
stating about the mitigating circumstances.
Needless to say, for the said purpose, it is
necessary that the learned Counsel, Mr. M.L.
Sharma and his associate Ms. Suman and Mr.
A.P. Singh and his associate Mr. V.P. Singh
should be allowed to visit the jail and
communicate with the accused persons and file
the requisite affidavits and materials.”
(emphasis supplied)
28. In the final order of Mukesh v. State (NCT of Delhi), (2017) 6
SCC 1, this Court held that in the event the procedural
requirements under Section 235 (2) of the CrPC are not met, the
appellate court can either remit the case back to the trial court or
adjourn the matter before the appellate forum for hearing on
sentence after giving an opportunity to adduce evidence. On the
other hand, the court also noted that any deficiency in noncompliance
of Section 235 (2) of CrPC can be cured by providing
the opportunity at the appellate stage itself so as to curtail the
delay in the proceedings. In that case, this Court had allowed the
accused to file an affidavit listing the mitigating circumstance,
noticing that no prehearing
on sentence was ever carried out.
18
29. Two recent threeJudge
Bench decisions of this Court on this
aspect merit our consideration. Firstly, in the decision dated
28.11.2018 in Chhannu Lal Verma v. State of Chhattisgarh
(Criminal Appeal Nos. 14821483
of 2018), this Court observed
that not having a separate hearing at the stage of trial was a
procedural impropriety. Noting that a bifurcated hearing for
conviction and sentencing was a necessary condition laid down in
Santosh Kumar Satishbhushan Bariyar, (2009) 6 SCC 498,
the Court held that by conducting the hearing for sentencing on
the same day, the Trial Court failed to provide necessary time to
the appellant therein to furnish evidence relevant to sentencing
and mitigation. We find that this cannot be taken to mean that
this Court intended to lay down, as a proposition of law, that
hearing the accused for sentencing on the same day as for
conviction would vitiate the trial. On the contrary, in the said
case, it was found on facts that the same was a procedural
impropriety because the accused was not given sufficient time to
furnish evidence relevant to sentencing and mitigation.
30. Secondly, in the decision dated 12.12.2018 in Rajendra
Prahladrao Wasnik v. State of Maharashtra, (Review Petition
19
(Crl.) Nos. 306307
of 2013), this Court made a general
observation that in cases where the death penalty may be
awarded, the Trial Court should give an opportunity to the
accused after conviction which is adequate for the production of
relevant material on the question of the propriety of the death
sentence. This is evidently at best directory in nature and cannot
be taken to mean that a presentence
hearing on a separate date
is mandatory.
31. It may also be noted that in the older threeJudge
Bench decision
of this Court in Malkiat Singh Case (supra), the Court observed
that keeping in mind the twoJudge
Bench decisions in
Allauddin Mian Case (supra) and Anguswamy v. State of
Tamil Nadu, (1989) 3 SCC 33, wherein it had been laid down
that a sentence awarded on the same day as the finding of guilt is
not in accordance with law, the normal course of action in case of
violation of such procedure would be remand for further
evidence. However, on a perusal of these two decisions we find
that their import has not been correctly appreciated in Malkiat
Singh Case (supra), since the observations in Allauddin Mian
Case (supra), as relied upon in Anguswamy Case (supra),
20
regarding conduct of hearings on separate dates, were only
directory. Be that as it may, it must be noted that the effect of
Malkiat Singh Case (supra) has already been considered by this
Court in Vasanta Sampat Dupare Case (supra), wherein it was
already noted that the mere nonconduct
of the presentence
hearing on a separate date would not per se vitiate the trial if the
accused has been afforded sufficient time to place relevant
material on record.
32. It may not be out of context to note that 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. (See Tarlok Singh v. State of Punjab, (1977) 3 SCC
218; Ramdeo Chauhan v. State of Assam, (2001) 5 SCC 714).
33. There cannot be any doubt that at the stage of hearing on
sentence, generally, the accused argues based on the mitigating
circumstances in his favour for imposition of lesser sentence. On
the other hand, the State/the complainant would argue based on
the aggravating circumstances against the accused to support
the contention relating to imposition of higher sentence. The
object of Section 235 (2) of the Cr.P.C is to provide an
21
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 the 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.
34. In light of the above discussion, we are of the opinion that 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 presentencing
hearing taking place
on the same day as the preconviction
hearing. Depending on the
facts and circumstances, a separate date may be required for
22
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.
35. Now we need to consider the impact of noncompliance
of
procedure provided under Section 235 (2) of CrPC by the trial
court. 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. It
must be kept in mind that Section 465 of the CrPC mandates
that no finding, 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.
36. The narrative provided by numerous cases on this aspect
portrays a picture of the appellate Court trying to balance two
important rights, viz., right to fair trial and right to speedy trial.
23
On one side, is the procedural right granted to the accused under
Section 235 (2) of CrPC, and on the other side is the possibility of
misuse to delay the trial. The experienced judges in India have
enough expertise to distinguish, between the schemes for
protracting trials from that of genuine causes in order to protect
rights of the accused.
37. This brings us to the role of appellate courts under our Criminal
Justice System. There is no dispute that under our chosen
system, that 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.1 The narration of various
court dicta, which are cited above, provide for a cautionary tale
right from Santa Singh Case onwards, as the choice of solution
for remedying noncompliance
of Section 235 (2) of CrPC provides
for selection of at least two different modes.
1 Dame Sian Elias, Fairness in Criminal Justice (golden threads and pragmatic patches),
Hamlyn Lectures (2018)
24
38. As noted above, many cases have grappled with the question as
to the choice between the two. The approach of this Court needs
to be rationalized and understood in the light of cautionary
approach discussed above. From the aforesaid discussion,
following dicta emergei.
That the term ‘hearing’ occurring under Section 235 (2)
requires the accused and prosecution at their option, to
be given a meaningful opportunity.
ii. 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.
iii. The trial court need to comply with the mandate of
Section 235 (2) of CrPC with best efforts.
iv. Noncompliance
can be rectified at the appellate stage as
well, by providing meaningful opportunity.
v. 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.
vi. 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.
vii. 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.
25
viii. 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.
39. Having discussed the law on presentence
hearing, it would be
appropriate at this juncture to revisit the decisions of the Courts,
leading to this review in order to ascertain whether the Petitioner
was given an effective opportunity to place material on record
relevant to the quantum of sentence, in this instant case.
40. The Trial Court heard the Petitioner on the aspect of imposition
of sentence separately, which is amply clear from paragraphs 7987
of the judgment of the Trial Court. Hence, based on the
material on record we are satisfied that the Trial Court has fully
complied with the requirement of Section 235(2) of the CrPC,
While coming to its conclusion, the Court held that the
aggravating circumstances of the crime, i.e. the magnitude and
manner of commission of the crime in the form of the
kidnapping, rape and murder of two minor girls, outweighed the
mitigating circumstances of the accused, i.e. the dependency of
his aged mother on him, and his young age. The Court also gave
weightage to the prior convictions of the accused for the same
kind of offence, i.e. for the offence of rape of a nineyearold
girl
child under Sections 376 and 506 of the IPC and Section 57 of
26
the Bombay Children Act, as well as for the kidnapping and rape
of a sevenyearold
girl child under Sections 363 and 366 of the
IPC. It may be noted here itself that in light of his two prior
convictions, the Trial Court also gave him an opportunity to be
heard on the question of Section 75 of the IPC, which pertains to
enhance punishment for certain offences under Chapter XII or
XVII of the IPC after previous conviction, but the factum of these
convictions was also not contested by the Petitioner.
41. Before the High Court as well, further material was brought on
record by the Petitioner regarding his discharge in one case
related to offences of the same nature, which the Court found to
not be in the nature of a mitigating circumstance. The High Court
was of the opinion that the dependency of aged parents could
also not be considered as a mitigating circumstance to begin
with, and that the accused was not young enough for his age to
be considered as a mitigating circumstance. The High Court
noted the absence of any extreme mental or emotional
disturbance leading to the commission of the offence, and
observed that given the past offending history of the accused,
there was no hope of his reform or rehabilitation. The Court also
27
noted the barbaric nature of the offence, inasmuch as the
Petitioner had coldbloodedly
raped and murdered two innocent
and defenceless girls by abusing the faith that they had reposed
in him as their neighbour, and concluded that he would pose a
threat to society even if released for the smallest period of time,
and might commit similar acts in the future. On this basis, the
High Court affirmed the death penalty awarded to the accused.
42. The Supreme Court, in appeal, being Criminal Appeal No. 680 of
2007, also determined the case to fall into the category of the
rarest of rare cases.
43. The record in the instant matter therefore clearly shows that the
accused was accorded a real and effective opportunity at the trial
stage itself. It may further be stated that 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, we reject the
28
contention that the procedure envisaged in Section 235(2) of the
CrPC was not complied with in the present case.
44. Now we need to consider the second issue concerning postconviction
mental illness as a mitigating factor for converting a
death sentence to life imprisonment.
45. It is pertinent for us to understand the phenomenon of postconviction
mental illness. As the phrase itself suggests, it is only
after being proven guilty, that the convict has developed such
illness. It is well acknowledged fact throughout the world that,
prisons are difficult places to be in. 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. The prevailing
argument in favour of such prisoners is that; whether the
29
imposition of death penalty upon such prisoners is justified, who
have clearly impaired their abilities to even understand the
nature and purpose of such punishment and the reasons for
such imposition? The aforesaid issues will be dealt at length at
the later stage.
46. The accused has now pleaded an entirely new ground of postconviction
mental illness for the first time herein, which obliges
us to go into the aspect of sentencing afresh. It is also brought to
our notice that the appellant has been a death row convict for
almost 17 years, mandating us to resolve the issue of sentencing
herein. Before we consider the appropriate punishment for the
accused herein, a reference needs to be made to the background
principles concerning sentencing policy considering that the
present Petitioner is pleading a mitigating factor which has arisen
postconviction.
47. Sentencing is appropriate allocation of criminal sanctions, which
is mostly given by the judicial branch.2 This process occurring at
the end of a trial still has a large impact on the efficacy of a
Criminal Justice System. It is established that sentencing is a
2 Nicola Padfield, Rod Morgan and Mike Maguire, ‘Out of Court, out of sight? Criminal
sanctions and nojudicial
decision making’, The Oxford Handbook of Criminology (5th Ed.).
30
sociolegal
process, wherein a judge finds an appropriate
punishment for the accused considering factual circumstances
and equities. In 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. We need to
appreciate that a strict fixed punishment approach in sentencing
cannot be acceptable, as the judge needs to have sufficient
discretion as well.
48. Before analyzing this case, we need to address the issue of the
impact of reasoning in the sentencing process. 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
31
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.
49. Sentencing in India, is a midway between judicial intuition and
strict application of rule of law. As much as we value the rule of
law, the process of sentencing needs to preserve principled
discretion for a judge. In India, sentencing is mostly led by
‘guideline judgments’ in the death penalty context, while many
other countries like United Kingdom and United States of
America, provide a basic framework in sentencing guidelines.
50. Although at the outset, it is clarified that 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 regards 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. Such an effort has
32
already been initiated by the Supreme Court, in Sunil Dutt
Sharma Case, (2014) 4 SCC 375, when the sentencing
guidelines evolved in the context of death penalty were applied to
a lesser sentence as well. However, achieving sentencing
uniformity may not only require judicial efforts, but even the
legislature may be required to step in.
51. Moreover, our attention is also drawn to the Malimath Committee
Report on Reforms in the Criminal Justice System, which
recommended creation of a statutory body for prescribing
sentencing guidelines. Before concluding the aforementioned
observations highlighting the dangers of sentencing discretion,
we are reminded of the words of Justice Krishna Iyer, who held
that “Guided missiles with lethal potential, in unguided hands,
even judicial, is a grave risk where the peril is mortal though
tempered by the appellate process.” [refer Rajendra Prasad v.
State of Uttar Pradesh (1979) 3 SCC 646]
52. In any case, 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
33
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 crimeoriented
sentencing to a holistic
approach wherein the crime, criminal and victim have to be
taken into consideration collectively.
53. Having observed some of the general aspects of sentencing, it is
necessary to consider the aspect of postconviction
mental illness
as mitigating factor in the analysis of ‘rarest of the rare’ doctrine
which has come into force post Bachan Singh Case (supra).
54. As a starting point we need to refer to Piare Dusadh v. King
Emperor, AIR 1944 FC 1, has already recognized postconviction
mental illness as a mitigating factor in the following mannerCase
No. 47The
appellant in this case was
convicted by a Special Judge of the offence of
murder and was sentenced to death on 30th
September 1942. His appeal to the Allahabad
High Court was dismissed and the sentence of
death was confirmed. The appellant is a young
man of 25 who has been twice widowed. His
victim was his aunt, 30 years of age, whose
husband (Kanchan) had about six years
previously murdered his own brother, appellant's
father. Kanchan was sentenced to death for the
34
murder, but lost his reason while awaiting the
execution of the death sentence, and is now
detained as a lunatic. The evidence in this case
leaves no room for doubt that the appellant was
rightly convicted of murder. There is some
confusion as to the exact motive for the
undoubtedly brutal assault of which the
appellant made his aunt the victim. The
prosecution alleged that the appellant being a
widower was chagrined by the refusal of his aunt
to become his mistress. In his statement before,
the Special Judge he said that another uncle
(P.W. 7) who according to the appellant was
behind the prosecution was on terms of improper
intimacy with the deceased and resented even
small acts of kindness on the part of the
deceased towards the appellant. In the appeal
preferred by him through the jail authorities to
the High Court, the appellant stated that his
aunt was a woman of loose character and was
pursuing him with unwelcome attentions. The
previous history of this family indicates that the
appellant probably suffers from an unbalanced
mind. The nature and ferocity of the assault
upon his aunt appear to confirm this.
In committing the offence the appellant must
have been actuated by jealousy or by
indignation either of which would tend
further to disturb the balance of his mind. He
has besides been awaiting the execution of his
death sentence for over a year. We think that
in this case a sentence of transportation for
life would be more appropriate than the
sentence of death.
35
We accordingly reduce the sentence of death
to one of transportation for life and subject to
this modification dismiss the appeal.
(emphasis supplied)
However, this case does not provide any guidelines or the
threshold for evaluating what kind of mental illness needs to be
taken into consideration by the Courts.
55. We note that, 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, socioeconomic
condition etc. We note that
the ground claimed by ‘accused x’ is arising after a longtime
gap
after crime and conviction. Therefore, the justification to include
the same as a mitigating factor does not tie in with the equities of
the case, rather the normative justification is founded in the
Constitution as well as the jurisprudence of the ‘rarest of the
rare’ doctrine. It is now settled that the death penalty can only be
imposed in the rarest of the rare case which requires a
consideration of the totality of circumstances. In this light, we
have to assess the inclusion of postconviction
mental illness as a
determining factor to disqualify as a ‘rarest of the rare’ case.
36
56. 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. In this
case we are concerned with the death penalty, which inevitably
affects right to life, and is subjected to a various substantive and
procedural protections under our criminal justice system. An
irreducible core of right to life is ‘dignity’. [refer Navtej Singh
Johar v. Union of India, AIR 2018 SC 4321]. Right to human
dignity comes in different shades and colours. [refer Common
Cause v. Union of India, AIR 2018 SC 1665]. For our purposes,
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. 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’.
57. All human beings possess the capacities inherent in their nature
even though, because of infancy, disability, or senility, they may
37
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.
58. 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
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.
59. It may not be out of context to refer Atkins v. Virginia, 536 U.S.
304 (2002), wherein the United States Supreme Court, while
dealing with the question ‘whether the execution of mentally
retarded persons "cruel and unusual punishment" prohibited by
the Eighth Amendment?’ The Court noted that hanging mentally
38
disabled or retarded neither increases the deterrence effect of
death penalty nor does the nonexecution
of the mentally
disabled will measurably impede the goal of deterrence.
60. 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, our
Constitution embodies broad and idealistic concepts of dignity,
civilized standards, humanity, and decency against which penal
measures have to be evaluated. In recognizing these civilized
standards, we may refer to the aspirations of India in being 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, when the death penalty existed in England, there
was a common law right barring execution of lunatic prisoners.3
3 Hale's Pleas of the Crown Vol. I p.
33; Coke's Institutes, Vol. III, pg. 6; Blackstone's
Commentaries on the Laws of England Vol. IV, pages 18 and 19; , "An Introduction to
Criminal Law", by Rupert Cross, (1959), p. 67.
39
Additionally, there is a strong international consensus against
the execution of individuals with mental illness.4
61. We may note that 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. Andhra
Pradesh Prison Rules, 1979, Rule 796; Gujarat Prisons (Lunatics)
Rules, 1983; Delhi Prison Rules, 2018, Rule 824; Tamil Nadu
Prison Rules, 1983, Rule 923; Maharashtra Prison Manual, 1979,
Chapter XLII (Government Notification, Home department, No.
RJM1058
(XLVI)/12,495XVI,
dated 18.01.1971); Model Prison
Manual by Ministry of Home Affairs (2016), Rule 12.36 are some
of the examples of legal instruments in India which have already
recognized postconviction
mental illness as a relevant factor for
Government to consider under its clemency jurisdiction.
62. Having understood the normative basis for recognition of postconviction
mental illness as a mitigating factor in a death penalty
case, we must mention that Shatrughan Chauhan Case (supra)
had identified the same and holds as under:
4 Commission on Human Rights Resolution 2000/65 The question of the death penalty, UN
Commission on Human Rights (Apr. 27, 2000); G.A. Res. 69/186, ¶ 5(d) (Feb. 4, 2015);
40
“86. The above materials, particularly, the
directions of the United Nations international
conventions, of which India is a party, clearly
show that insanity/mental illness/schizophrenia
is a crucial supervening circumstance, which
should be considered by this Court in deciding
whether in the facts and circumstances of the
case death sentence could be commuted to life
imprisonment. To put it clear, “insanity” is a
relevant supervening factor for consideration by
this Court.”
63. Now we need to consider the test for recognizing an accused
eligible for such mitigating factor. It must be recognized that
insanity recognized under IPC and the mental illness we are
considering 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. [refer Surendra
Mishra v. State of Jharkhand, (2011) 3 SCC (Cri.) 232]. 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 postconviction
mental illness is based
on appreciation of punishment and right to dignity. [refer Amrit
Bhushan Gupta v. Union of India, AIR 1977 SC 608] The
41
different normative standards underpinning the above
consequently mean different threshold standards as well.
64. On the other hand, considering the fact that the case is at the fag
end of the process and the mitigating factors so discussed above
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
aliment is not of grave severity.
65. Before we analyse this case at hand, a brief survey of
classification of mental illness and its impact on death penalty
needs to be considered. The Diagnostic and Statistical Manual of
Mental Disorders (DSM), is one of the most wellknown
classification and diagnostic guides for mental disorders in
42
America. Its fifth edition (DSM5),
published in 2013, defines
mental disorder as follows: A
mental disorder is a syndrome
characterized by clinically significant
disturbance in an individual’s cognition ,
emotion regulation , or behaviour that reflects
a dysfunction in the psychological, biological,
or developmental processes underlying
mental functioning . Mental disorders are
usually associated with significant distress in
social, occupational, or other important
activities . An expectable or culturally approved
response to a common stressor or loss, such as
the death of a loved one, is not a mental disorder.
Socially deviant behavior (e.g., political, religious,
or sexual) and conflicts that are primarily
between the individual and society are not
mental disorders unless the deviance or conflict
results from a dysfunction in the individual, as
described above.
66. ‘Severe Mental Illness’ under the ‘International Classification of
Diseases (ICD)’, which is accepted under Section 3 of the Mental
Health Care Act, 2017, generally include1.
schizophrenic and delusional disorders
2. mood (affective) disorders, including depressive,
manic and bipolar forms
3. neuroses, including phobic, panic and obsessive–
compulsive disorders
43
4. behavioural disorders, including eating, sleep
and stress disorders
5. personality disorders of different kinds.
67. American Bar Association, by its Resolution 122A passed on
August 2006, notes as under(
a) Grounds for Precluding Execution. A sentence
of death should not be carried out if the prisoner
has a mental disorder or disability that
significantly impairs his or her capacity (i) to
make a rational decision to forgo or terminate
postconviction
proceedings available to
challenge the validity of the conviction or
sentence; (ii) to understand or communicate
pertinent information, or otherwise assist
counsel, in relation to specific claims bearing on
the validity of the conviction or sentence that
cannot be fairly resolved without the prisoner's
participation; or (iii) to understand the nature
and purpose of the punishment, or to appreciate
the reason for its imposition in the prisoner's
own case.
68. In line with the above discussion, we note that there appear to be
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
disorderswith
schizophrenia.
69. Following directions need to be followed in the future cases in
light of the above discussiona.
That the postconviction
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.
b. 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.
c. 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.
d. The State may offer evidence to rebut such claim.
e. Court in appropriate cases could setup a panel to
submit an expert report.
45
f. ‘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.
70. Having said so, it needs to be considered that the accused has
submitted a report of the ClassI
Psychiatrist, Yerawada Central
Prison, indicating that he was suffering from some sort of mental
illness without providing any objective factors for such
assessment. We may reproduce the aforesaid report dated
25.09.2014, in the following mannerClinical
impression:no
delusions, no
hallucinations, sleep and appetite are normal.
Remark:Taking
regular medication and
maintaining improvement. He is under OPD
under Psychiatric treatment since 21.12.1994
and since then taking regular treatment.
Currently he is on antipsychotic
drugs…
The doctor further opined that ‘he is maintaining
good improvement on medication, good diet. He
is having psychological disturbance and
symptoms like irritability emerges when the
dosage is decreased.
71. Moreover, the expert opinion offered by a Psychiatrist registered
with the Maharashtra Medical Council working as a coordinator
of the Centre for Mental Health Law and Policy, Indian Law
Society, Pune, does not provide any further clarity. We may
extract the conclusion reached by the aforesaid report as wellWhile
no definite opinion can be given
relating to the mental health condition of
Accused ‘X’ and the treatment being
administered to him, considering that he appears
to be under treatment for a severe mental illness
such as schizophrenia or some type of psychosis,
there appears to be a need to review Accused
x’s medical records and to clinically examine
him to assess his current psychiatric status.
(emphasis supplied).
72. Even though we are not satisfied with such statements made by
the doctors as the assessment seems to be incomplete. However,
it is to be noted that the present accused has been reeling under
bouts of some form of mental irritability since 1994, as apparent
from the records placed before us. Moreover, he has suffered long
incarceration as well as a death row convict. In the totality of
circumstances, we do not consider it be appropriate to constitute
a panel for reassessment
of his mental condition, in the facts
and circumstances of this case.
73. At the same time, we cannot lose sight of the fact that 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 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, we deem it fit to direct
that the Petitioner shall remain in prison for the remainder of his
life. It need not be stated that this Court has in a plethora of
decisions held such an approach to be perfectly within its power
to adopt, and that it acts as 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).
(See for instance Swamy Shraddananda (2) v. State of
Karnataka, (2008) 13 SCC 767; Union of India v. V. Sriharan,
(2016) 7 SCC 1; Tattu Lodhi v. State of Madhya Pradesh,
(2016) 9 SCC 675).
74. In light of the above discussion, 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.
75. Further, 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.5 Moreover, due to legal
constraints on the recognition of broadspectrum
mental illness
within the Criminal Justice System, prisons inevitably become
home for a greater number of mentallyill
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.
76. In order to address the same, the Mental Healthcare Act, 2017
was brought into force. The aspiration of the Act was 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.
5 Although statistics on the same are not available for all of Indian prisons, but we were
able to compare sample studies within some Indian prisons and literature on psychiatric
morbidity concurs as well.
6 Liebling, Maruna and McAra et al., The Oxford Handbook of Criminology (6th Ed. (2017)).
49
77. Therefore, we direct the State Government 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.
78. In light of the above discussion, this review petition stands partly
allowed in the aforesaid terms and pending applications, if any,
shall also stand disposed of.
..…………………………..……..J.
[N.V. Ramana]
..…………………………..……..J.
[Mohan M. Shantanagoudar]
..…..……………………..
……..J.
[Indira Banerjee]
NEW DELHI;
APRIL 12, 2019
Print Page
(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’.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
REVIEW PETITION (CRIMINAL) NO. 301 OF 2008
IN
CRIMINAL APPEAL NO. 680 OF 2007
ACCUSED ‘X’ Vs STATE OF MAHARASHTRA
N. V. RAMANA, J .
Dated: APRIL 12, 2019
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. victim1
(studying in the 4th standard) and
victim2
(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 (PW13,
victim1’
s father).
2
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 (PW6),
with his daughter, Reshma
(PW8),
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
victim2’
s body in a well situated in the field of the father of
Sakharam Bhiku Yadav (PW11),
and concealed the body of
victim1
in a “kalkache bet” (place where bamboo trees and
shrubs grow together thickly).
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 victim2.
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, halfburnt
bidis and broken
bangles were recovered. The bloodstained
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
3
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 bloodstained
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 bloodstained
earth and other incriminating articles were seized; extrajudicial
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
4
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 threeJudge
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. (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 threeJudge
Bench, and specifically permitted
the reopening of review petitions in all cases where review
petitions had been dismissed by circulation.
5
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 threeJudge
Bench decision of this Court in
Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1,
followed in a fourJudge
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.
6
11. Learned counsel for the Respondent, i.e. the State of
Maharashtra, Mr. Nishant Ramakantrao Katneshwarkar, on the
other hand, highlighted that the presentencing
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 threeJudge
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
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 noncompliance
of Section
235 (2) of CrPC during the sentencing process before the Trial
Court. The second issue concerns the mental illness of ‘accused
7
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.
8
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 PreSentence
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 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
9
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. 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 the case at hand, the accused
argues that his right to fair trial stands extinguished as he was
not provided a separate hearing for sentencing. This issue can be
resolved directly by relying on the interpretation of Section 235
(2) of CrPC and this Court’s jurisprudence built around PreSentence
Hearing.
17. As also highlighted by the Petitioner, this requirement has also
been affirmed by the fiveJudge
Bench of this Court in Bachan
Singh v. State of Punjab (supra), wherein it was also held that
at the stage of PreSentence
Hearing, the accused can bring on
record material or evidence, which may not be strictly relevant to
or connected with the particular crime under inquiry, but
nevertheless, may have a bearing on the choice of sentence.
10
18. The first case on this point is Santa Singh v. The State of
Punjab, (1976) 4 SCC 190, which was decided by a Division
Bench of this Court presided by Justice Bhagwati (as His
Lordship then was) and Justice Fazal Ali. This case revolved on
the fact that an accused in a double murder case was sentenced
to death without providing an opportunity of ‘hearing’ under
Section 235 (2) of CrPC, which was the only ground of appeal
before the Supreme Court. This Court, by two concurrent
opinions, remanded the matter back to the trial court for fresh
consideration on sentencing after giving an opportunity of
‘hearing’ to the accused. Justice Bhagwati interpreted Section
235 (2) of CrPC in the following manner“
This material may be placed before the court by
means of affidavits, but if either party disputes the
correctness or veracity of the material sought to be
produced by the other, an opportunity would have to
be given to the party concerned to lead evidence for
the purpose of bringing such material on record. The
hearing on the question of sentence, would be
rendered devoid of all meaning and content and it
would become an idle formality, if it were
confined merely to hearing oral submissions
without any opportunity being given to the
parties and particularly to the accused, to produce
material in regard to various factors bearing on the
question of sentence, and if necessary, to lead
evidence for the purpose of placing such material
before the court.
11
…
We are therefore of the view that the hearing
contemplated by section 235 (2) is not confined
merely to hearing oral submissions, but it is also
intended to give an opportunity to the prosecution
and the accused to place before the court facts and
material relating to various factors bearing on the
question of sentence and if they are contested by
either side, then to produce evidence for the purpose
of establishing the same. Of course, care would
have to be taken by the court to see that this
hearing on the question of sentence is not abused
and turned into an instrument for unduly
protracting the proceedings.”
(emphasis supplied)
Justice Fazal Ali, agreed with the aforesaid conclusion, and made
observations along the same lines.
19. The aforesaid ruling came to be questioned in Dagdu and
others v. State of Maharashtra, (1977) 3 SCC 68, wherein a
similar question came before this Court. This Court, while
repelling the submission of the counsel for the accused therein,
who argued that the ratio in Santa Singh Case (supra)
mandated compulsory remand of the case to the trial court, held
as under12
“But we are unable to read the judgment in Santa
Singh (supra) as laying down that the failure on the
part of the Court, which convicts an accused, to
'hear him on the question of sentence must
necessarily entail a remand to that Court in order
to afford to the accused an opportunity to. be
heard on the question of sentence. 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. That opportunity has to
be real and effective, which means that the accused
must be permitted to adduce before the Court all the
data which he desires to adduce on the question of
sentence. The accused may exercise that right either
by instructing his counsel to make oral submissions
to the Court or he may, on affidavit or otherwise, place
in writing before the Court whatever he desires to
place before it on the question of sentence. The Court
may, in appropriate cases, have to adjourn the
matter in order to give to the accused sufficient
time to produce the necessary data and to make
his contentions on the question of sentence. That,
perhaps, must inevitably happen where the conviction
is recorded for the first time by a higher court.
Bhagwati J. has observed in his judgment that care
ought to be taken to ensure that the opportunity of a
hearing on the question of sentence is not abused and
turned into an instrument for unduly protracting the
proceedings.”
(emphasis supplied)
13
20. In Rajendra Prasad v. State of Uttar Pradesh, AIR 1979 SC
916, the Supreme Court expressed its concern that the
mandatory PreSentence
Hearing had become nothing more than
a repetition of the facts of the case. The Bench hoped that “the
Bar will assist the Bench in fully using the resources of the new
provision to ensure sociopersonal
justice, instead of ritualising the
submissions on sentencing by reference only to materials brought
on record for proof or disproof of guilt”.
21. In the case of Muniappan v. State of Tamil Nadu, (1981) 3
SCC 11, the Supreme Court noted that the trial court had
sentenced the accused to death stating that when the accused
was asked to speak on the question of sentence, he did not say
anything. In such a case the Supreme Court noted that the
requirement of Section 235(2) was not discharged by merely
putting a formal question to the accused, and the court should
undertake genuine efforts. The Court observed therein that, “it is
the bounden duty of the judge to cast aside the formalities of the
court scene and approach the question of sentence from a broad,
sociological point of view”.
14
22. The question of providing sufficient time for PreSentence
Hearing was dealt with by the Court in Allauddin Mian v. State
of Bihar, (1989) 3 SCC 5. The Supreme Court observed that the
trial court had not provided sufficient time to the accused for
hearing on sentencing. Relevant factors, such as, the antecedents
of the accused, their socioeconomic
conditions, and the impact
of their crime on the community had not come on record, and in
the absence of such information deciding on punishment was
difficult. The Supreme Court therefore recommended that, “as a
general rule the trial courts should after recording the conviction
adjourn the matter to a future date and call upon both the
prosecution as well as the defence to place the relevant material
bearing on the question of sentence before it and thereafter
pronounce the sentence to be imposed on the offender”. The
aforesaid proposition was also reiterated in Malkiat Singh v.
State of Punjab, (1991) 4 SCC 341.
23. On the other hand, in Sevaka Perumal v. State of Tamil Nadu,
AIR 1991 SC 1463, this Court upheld the death sentence even
though it was argued that no time had been given to raise
grounds on sentencing by the trial court. This Court observed
15
that, during the appeal, the defence counsel had been unable to
provide any additional grounds on sentence and therefore no
prejudice had been caused to the accused.
24. In State of Maharashtra v. Sukhdev Singh, (1992) 3 SCC 700,
the Supreme Court clarified that while Section 309 of the CrPC
prescribed no power for adjournment of sentencing hearings,
these should be provided where the accused sought to produce
materials in capital cases. In Jai Kumar v. State of Madhya
Pradesh, AIR 1999 SC 1860, this Court observed that the trial
court had given an opportunity to the defence to produce
materials, which they chose not to do, and had considered the
mitigating circumstances raised by them. This Court opined that,
in such circumstances, it was not a miscarriage of justice that
the judge did not adjourn the hearing.
25. In Anshad v. State of Karnataka, (1994) 4 SCC 381, this Court
disapprovingly noted that the trial judge had dealt with
sentencing cryptically in one paragraph and this defeated the
very object of Section 235(2) of CrPC, exposing a “lack of
sensitiveness on his part while dealing with the question of
sentence”. Commuting the sentences of the appellants, the
16
Supreme Court observed that both the lower courts did not
appreciate the aggravating and mitigating circumstances and
therefore their entire approach to sentencing was incorrect.
26. The aforesaid principle was further elucidated in the case of B.A.
Umesh v. Registrar General, High Court of Karnataka, (2017)
4 SCC 124, wherein it was held that a review petition cannot be
allowed merely because no separate date was given for hearing on
the sentence. This Court held that Section 235(2) of CrPC does
not mandate separate date for the hearing of the sentence,
rather, it is dependent on the facts and circumstances of the
case, for instance, if parties insist to be heard on separate dates.
27. As per the order dated 03.02.2017 in Mukesh v. State (NCT of
Delhi), (2017) 3 SCC 717, this Court, having found that there
was no compliance of Section 235 (2) of CrPC by the court’s
below, observed as under“
Having considered all the authorities, we find
that there are two modes, one is to remand the
matter or to direct the accused persons to
produce necessary data and advance the
contention on the question of sentence.
Regard being had to the nature of the case, we
think it appropriate to adopt the second mode.
To elaborate, we would like to give opportunity
17
before conclusion of the hearing to the accused
persons to file affidavits along with documents
stating about the mitigating circumstances.
Needless to say, for the said purpose, it is
necessary that the learned Counsel, Mr. M.L.
Sharma and his associate Ms. Suman and Mr.
A.P. Singh and his associate Mr. V.P. Singh
should be allowed to visit the jail and
communicate with the accused persons and file
the requisite affidavits and materials.”
(emphasis supplied)
28. In the final order of Mukesh v. State (NCT of Delhi), (2017) 6
SCC 1, this Court held that in the event the procedural
requirements under Section 235 (2) of the CrPC are not met, the
appellate court can either remit the case back to the trial court or
adjourn the matter before the appellate forum for hearing on
sentence after giving an opportunity to adduce evidence. On the
other hand, the court also noted that any deficiency in noncompliance
of Section 235 (2) of CrPC can be cured by providing
the opportunity at the appellate stage itself so as to curtail the
delay in the proceedings. In that case, this Court had allowed the
accused to file an affidavit listing the mitigating circumstance,
noticing that no prehearing
on sentence was ever carried out.
18
29. Two recent threeJudge
Bench decisions of this Court on this
aspect merit our consideration. Firstly, in the decision dated
28.11.2018 in Chhannu Lal Verma v. State of Chhattisgarh
(Criminal Appeal Nos. 14821483
of 2018), this Court observed
that not having a separate hearing at the stage of trial was a
procedural impropriety. Noting that a bifurcated hearing for
conviction and sentencing was a necessary condition laid down in
Santosh Kumar Satishbhushan Bariyar, (2009) 6 SCC 498,
the Court held that by conducting the hearing for sentencing on
the same day, the Trial Court failed to provide necessary time to
the appellant therein to furnish evidence relevant to sentencing
and mitigation. We find that this cannot be taken to mean that
this Court intended to lay down, as a proposition of law, that
hearing the accused for sentencing on the same day as for
conviction would vitiate the trial. On the contrary, in the said
case, it was found on facts that the same was a procedural
impropriety because the accused was not given sufficient time to
furnish evidence relevant to sentencing and mitigation.
30. Secondly, in the decision dated 12.12.2018 in Rajendra
Prahladrao Wasnik v. State of Maharashtra, (Review Petition
19
(Crl.) Nos. 306307
of 2013), this Court made a general
observation that in cases where the death penalty may be
awarded, the Trial Court should give an opportunity to the
accused after conviction which is adequate for the production of
relevant material on the question of the propriety of the death
sentence. This is evidently at best directory in nature and cannot
be taken to mean that a presentence
hearing on a separate date
is mandatory.
31. It may also be noted that in the older threeJudge
Bench decision
of this Court in Malkiat Singh Case (supra), the Court observed
that keeping in mind the twoJudge
Bench decisions in
Allauddin Mian Case (supra) and Anguswamy v. State of
Tamil Nadu, (1989) 3 SCC 33, wherein it had been laid down
that a sentence awarded on the same day as the finding of guilt is
not in accordance with law, the normal course of action in case of
violation of such procedure would be remand for further
evidence. However, on a perusal of these two decisions we find
that their import has not been correctly appreciated in Malkiat
Singh Case (supra), since the observations in Allauddin Mian
Case (supra), as relied upon in Anguswamy Case (supra),
20
regarding conduct of hearings on separate dates, were only
directory. Be that as it may, it must be noted that the effect of
Malkiat Singh Case (supra) has already been considered by this
Court in Vasanta Sampat Dupare Case (supra), wherein it was
already noted that the mere nonconduct
of the presentence
hearing on a separate date would not per se vitiate the trial if the
accused has been afforded sufficient time to place relevant
material on record.
32. It may not be out of context to note that 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. (See Tarlok Singh v. State of Punjab, (1977) 3 SCC
218; Ramdeo Chauhan v. State of Assam, (2001) 5 SCC 714).
33. There cannot be any doubt that at the stage of hearing on
sentence, generally, the accused argues based on the mitigating
circumstances in his favour for imposition of lesser sentence. On
the other hand, the State/the complainant would argue based on
the aggravating circumstances against the accused to support
the contention relating to imposition of higher sentence. The
object of Section 235 (2) of the Cr.P.C is to provide an
21
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 the 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.
34. In light of the above discussion, we are of the opinion that 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 presentencing
hearing taking place
on the same day as the preconviction
hearing. Depending on the
facts and circumstances, a separate date may be required for
22
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.
35. Now we need to consider the impact of noncompliance
of
procedure provided under Section 235 (2) of CrPC by the trial
court. 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. It
must be kept in mind that Section 465 of the CrPC mandates
that no finding, 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.
36. The narrative provided by numerous cases on this aspect
portrays a picture of the appellate Court trying to balance two
important rights, viz., right to fair trial and right to speedy trial.
23
On one side, is the procedural right granted to the accused under
Section 235 (2) of CrPC, and on the other side is the possibility of
misuse to delay the trial. The experienced judges in India have
enough expertise to distinguish, between the schemes for
protracting trials from that of genuine causes in order to protect
rights of the accused.
37. This brings us to the role of appellate courts under our Criminal
Justice System. There is no dispute that under our chosen
system, that 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.1 The narration of various
court dicta, which are cited above, provide for a cautionary tale
right from Santa Singh Case onwards, as the choice of solution
for remedying noncompliance
of Section 235 (2) of CrPC provides
for selection of at least two different modes.
1 Dame Sian Elias, Fairness in Criminal Justice (golden threads and pragmatic patches),
Hamlyn Lectures (2018)
24
38. As noted above, many cases have grappled with the question as
to the choice between the two. The approach of this Court needs
to be rationalized and understood in the light of cautionary
approach discussed above. From the aforesaid discussion,
following dicta emergei.
That the term ‘hearing’ occurring under Section 235 (2)
requires the accused and prosecution at their option, to
be given a meaningful opportunity.
ii. 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.
iii. The trial court need to comply with the mandate of
Section 235 (2) of CrPC with best efforts.
iv. Noncompliance
can be rectified at the appellate stage as
well, by providing meaningful opportunity.
v. 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.
vi. 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.
vii. 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.
25
viii. 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.
39. Having discussed the law on presentence
hearing, it would be
appropriate at this juncture to revisit the decisions of the Courts,
leading to this review in order to ascertain whether the Petitioner
was given an effective opportunity to place material on record
relevant to the quantum of sentence, in this instant case.
40. The Trial Court heard the Petitioner on the aspect of imposition
of sentence separately, which is amply clear from paragraphs 7987
of the judgment of the Trial Court. Hence, based on the
material on record we are satisfied that the Trial Court has fully
complied with the requirement of Section 235(2) of the CrPC,
While coming to its conclusion, the Court held that the
aggravating circumstances of the crime, i.e. the magnitude and
manner of commission of the crime in the form of the
kidnapping, rape and murder of two minor girls, outweighed the
mitigating circumstances of the accused, i.e. the dependency of
his aged mother on him, and his young age. The Court also gave
weightage to the prior convictions of the accused for the same
kind of offence, i.e. for the offence of rape of a nineyearold
girl
child under Sections 376 and 506 of the IPC and Section 57 of
26
the Bombay Children Act, as well as for the kidnapping and rape
of a sevenyearold
girl child under Sections 363 and 366 of the
IPC. It may be noted here itself that in light of his two prior
convictions, the Trial Court also gave him an opportunity to be
heard on the question of Section 75 of the IPC, which pertains to
enhance punishment for certain offences under Chapter XII or
XVII of the IPC after previous conviction, but the factum of these
convictions was also not contested by the Petitioner.
41. Before the High Court as well, further material was brought on
record by the Petitioner regarding his discharge in one case
related to offences of the same nature, which the Court found to
not be in the nature of a mitigating circumstance. The High Court
was of the opinion that the dependency of aged parents could
also not be considered as a mitigating circumstance to begin
with, and that the accused was not young enough for his age to
be considered as a mitigating circumstance. The High Court
noted the absence of any extreme mental or emotional
disturbance leading to the commission of the offence, and
observed that given the past offending history of the accused,
there was no hope of his reform or rehabilitation. The Court also
27
noted the barbaric nature of the offence, inasmuch as the
Petitioner had coldbloodedly
raped and murdered two innocent
and defenceless girls by abusing the faith that they had reposed
in him as their neighbour, and concluded that he would pose a
threat to society even if released for the smallest period of time,
and might commit similar acts in the future. On this basis, the
High Court affirmed the death penalty awarded to the accused.
42. The Supreme Court, in appeal, being Criminal Appeal No. 680 of
2007, also determined the case to fall into the category of the
rarest of rare cases.
43. The record in the instant matter therefore clearly shows that the
accused was accorded a real and effective opportunity at the trial
stage itself. It may further be stated that 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, we reject the
28
contention that the procedure envisaged in Section 235(2) of the
CrPC was not complied with in the present case.
44. Now we need to consider the second issue concerning postconviction
mental illness as a mitigating factor for converting a
death sentence to life imprisonment.
45. It is pertinent for us to understand the phenomenon of postconviction
mental illness. As the phrase itself suggests, it is only
after being proven guilty, that the convict has developed such
illness. It is well acknowledged fact throughout the world that,
prisons are difficult places to be in. 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. The prevailing
argument in favour of such prisoners is that; whether the
29
imposition of death penalty upon such prisoners is justified, who
have clearly impaired their abilities to even understand the
nature and purpose of such punishment and the reasons for
such imposition? The aforesaid issues will be dealt at length at
the later stage.
46. The accused has now pleaded an entirely new ground of postconviction
mental illness for the first time herein, which obliges
us to go into the aspect of sentencing afresh. It is also brought to
our notice that the appellant has been a death row convict for
almost 17 years, mandating us to resolve the issue of sentencing
herein. Before we consider the appropriate punishment for the
accused herein, a reference needs to be made to the background
principles concerning sentencing policy considering that the
present Petitioner is pleading a mitigating factor which has arisen
postconviction.
47. Sentencing is appropriate allocation of criminal sanctions, which
is mostly given by the judicial branch.2 This process occurring at
the end of a trial still has a large impact on the efficacy of a
Criminal Justice System. It is established that sentencing is a
2 Nicola Padfield, Rod Morgan and Mike Maguire, ‘Out of Court, out of sight? Criminal
sanctions and nojudicial
decision making’, The Oxford Handbook of Criminology (5th Ed.).
30
sociolegal
process, wherein a judge finds an appropriate
punishment for the accused considering factual circumstances
and equities. In 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. We need to
appreciate that a strict fixed punishment approach in sentencing
cannot be acceptable, as the judge needs to have sufficient
discretion as well.
48. Before analyzing this case, we need to address the issue of the
impact of reasoning in the sentencing process. 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
31
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.
49. Sentencing in India, is a midway between judicial intuition and
strict application of rule of law. As much as we value the rule of
law, the process of sentencing needs to preserve principled
discretion for a judge. In India, sentencing is mostly led by
‘guideline judgments’ in the death penalty context, while many
other countries like United Kingdom and United States of
America, provide a basic framework in sentencing guidelines.
50. Although at the outset, it is clarified that 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 regards 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. Such an effort has
32
already been initiated by the Supreme Court, in Sunil Dutt
Sharma Case, (2014) 4 SCC 375, when the sentencing
guidelines evolved in the context of death penalty were applied to
a lesser sentence as well. However, achieving sentencing
uniformity may not only require judicial efforts, but even the
legislature may be required to step in.
51. Moreover, our attention is also drawn to the Malimath Committee
Report on Reforms in the Criminal Justice System, which
recommended creation of a statutory body for prescribing
sentencing guidelines. Before concluding the aforementioned
observations highlighting the dangers of sentencing discretion,
we are reminded of the words of Justice Krishna Iyer, who held
that “Guided missiles with lethal potential, in unguided hands,
even judicial, is a grave risk where the peril is mortal though
tempered by the appellate process.” [refer Rajendra Prasad v.
State of Uttar Pradesh (1979) 3 SCC 646]
52. In any case, 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
33
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 crimeoriented
sentencing to a holistic
approach wherein the crime, criminal and victim have to be
taken into consideration collectively.
53. Having observed some of the general aspects of sentencing, it is
necessary to consider the aspect of postconviction
mental illness
as mitigating factor in the analysis of ‘rarest of the rare’ doctrine
which has come into force post Bachan Singh Case (supra).
54. As a starting point we need to refer to Piare Dusadh v. King
Emperor, AIR 1944 FC 1, has already recognized postconviction
mental illness as a mitigating factor in the following mannerCase
No. 47The
appellant in this case was
convicted by a Special Judge of the offence of
murder and was sentenced to death on 30th
September 1942. His appeal to the Allahabad
High Court was dismissed and the sentence of
death was confirmed. The appellant is a young
man of 25 who has been twice widowed. His
victim was his aunt, 30 years of age, whose
husband (Kanchan) had about six years
previously murdered his own brother, appellant's
father. Kanchan was sentenced to death for the
34
murder, but lost his reason while awaiting the
execution of the death sentence, and is now
detained as a lunatic. The evidence in this case
leaves no room for doubt that the appellant was
rightly convicted of murder. There is some
confusion as to the exact motive for the
undoubtedly brutal assault of which the
appellant made his aunt the victim. The
prosecution alleged that the appellant being a
widower was chagrined by the refusal of his aunt
to become his mistress. In his statement before,
the Special Judge he said that another uncle
(P.W. 7) who according to the appellant was
behind the prosecution was on terms of improper
intimacy with the deceased and resented even
small acts of kindness on the part of the
deceased towards the appellant. In the appeal
preferred by him through the jail authorities to
the High Court, the appellant stated that his
aunt was a woman of loose character and was
pursuing him with unwelcome attentions. The
previous history of this family indicates that the
appellant probably suffers from an unbalanced
mind. The nature and ferocity of the assault
upon his aunt appear to confirm this.
In committing the offence the appellant must
have been actuated by jealousy or by
indignation either of which would tend
further to disturb the balance of his mind. He
has besides been awaiting the execution of his
death sentence for over a year. We think that
in this case a sentence of transportation for
life would be more appropriate than the
sentence of death.
35
We accordingly reduce the sentence of death
to one of transportation for life and subject to
this modification dismiss the appeal.
(emphasis supplied)
However, this case does not provide any guidelines or the
threshold for evaluating what kind of mental illness needs to be
taken into consideration by the Courts.
55. We note that, 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, socioeconomic
condition etc. We note that
the ground claimed by ‘accused x’ is arising after a longtime
gap
after crime and conviction. Therefore, the justification to include
the same as a mitigating factor does not tie in with the equities of
the case, rather the normative justification is founded in the
Constitution as well as the jurisprudence of the ‘rarest of the
rare’ doctrine. It is now settled that the death penalty can only be
imposed in the rarest of the rare case which requires a
consideration of the totality of circumstances. In this light, we
have to assess the inclusion of postconviction
mental illness as a
determining factor to disqualify as a ‘rarest of the rare’ case.
36
56. 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. In this
case we are concerned with the death penalty, which inevitably
affects right to life, and is subjected to a various substantive and
procedural protections under our criminal justice system. An
irreducible core of right to life is ‘dignity’. [refer Navtej Singh
Johar v. Union of India, AIR 2018 SC 4321]. Right to human
dignity comes in different shades and colours. [refer Common
Cause v. Union of India, AIR 2018 SC 1665]. For our purposes,
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. 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’.
57. All human beings possess the capacities inherent in their nature
even though, because of infancy, disability, or senility, they may
37
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.
58. 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
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.
59. It may not be out of context to refer Atkins v. Virginia, 536 U.S.
304 (2002), wherein the United States Supreme Court, while
dealing with the question ‘whether the execution of mentally
retarded persons "cruel and unusual punishment" prohibited by
the Eighth Amendment?’ The Court noted that hanging mentally
38
disabled or retarded neither increases the deterrence effect of
death penalty nor does the nonexecution
of the mentally
disabled will measurably impede the goal of deterrence.
60. 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, our
Constitution embodies broad and idealistic concepts of dignity,
civilized standards, humanity, and decency against which penal
measures have to be evaluated. In recognizing these civilized
standards, we may refer to the aspirations of India in being 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, when the death penalty existed in England, there
was a common law right barring execution of lunatic prisoners.3
3 Hale's Pleas of the Crown Vol. I p.
33; Coke's Institutes, Vol. III, pg. 6; Blackstone's
Commentaries on the Laws of England Vol. IV, pages 18 and 19; , "An Introduction to
Criminal Law", by Rupert Cross, (1959), p. 67.
39
Additionally, there is a strong international consensus against
the execution of individuals with mental illness.4
61. We may note that 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. Andhra
Pradesh Prison Rules, 1979, Rule 796; Gujarat Prisons (Lunatics)
Rules, 1983; Delhi Prison Rules, 2018, Rule 824; Tamil Nadu
Prison Rules, 1983, Rule 923; Maharashtra Prison Manual, 1979,
Chapter XLII (Government Notification, Home department, No.
RJM1058
(XLVI)/12,495XVI,
dated 18.01.1971); Model Prison
Manual by Ministry of Home Affairs (2016), Rule 12.36 are some
of the examples of legal instruments in India which have already
recognized postconviction
mental illness as a relevant factor for
Government to consider under its clemency jurisdiction.
62. Having understood the normative basis for recognition of postconviction
mental illness as a mitigating factor in a death penalty
case, we must mention that Shatrughan Chauhan Case (supra)
had identified the same and holds as under:
4 Commission on Human Rights Resolution 2000/65 The question of the death penalty, UN
Commission on Human Rights (Apr. 27, 2000); G.A. Res. 69/186, ¶ 5(d) (Feb. 4, 2015);
40
“86. The above materials, particularly, the
directions of the United Nations international
conventions, of which India is a party, clearly
show that insanity/mental illness/schizophrenia
is a crucial supervening circumstance, which
should be considered by this Court in deciding
whether in the facts and circumstances of the
case death sentence could be commuted to life
imprisonment. To put it clear, “insanity” is a
relevant supervening factor for consideration by
this Court.”
63. Now we need to consider the test for recognizing an accused
eligible for such mitigating factor. It must be recognized that
insanity recognized under IPC and the mental illness we are
considering 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. [refer Surendra
Mishra v. State of Jharkhand, (2011) 3 SCC (Cri.) 232]. 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 postconviction
mental illness is based
on appreciation of punishment and right to dignity. [refer Amrit
Bhushan Gupta v. Union of India, AIR 1977 SC 608] The
41
different normative standards underpinning the above
consequently mean different threshold standards as well.
64. On the other hand, considering the fact that the case is at the fag
end of the process and the mitigating factors so discussed above
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
aliment is not of grave severity.
65. Before we analyse this case at hand, a brief survey of
classification of mental illness and its impact on death penalty
needs to be considered. The Diagnostic and Statistical Manual of
Mental Disorders (DSM), is one of the most wellknown
classification and diagnostic guides for mental disorders in
42
America. Its fifth edition (DSM5),
published in 2013, defines
mental disorder as follows: A
mental disorder is a syndrome
characterized by clinically significant
disturbance in an individual’s cognition ,
emotion regulation , or behaviour that reflects
a dysfunction in the psychological, biological,
or developmental processes underlying
mental functioning . Mental disorders are
usually associated with significant distress in
social, occupational, or other important
activities . An expectable or culturally approved
response to a common stressor or loss, such as
the death of a loved one, is not a mental disorder.
Socially deviant behavior (e.g., political, religious,
or sexual) and conflicts that are primarily
between the individual and society are not
mental disorders unless the deviance or conflict
results from a dysfunction in the individual, as
described above.
66. ‘Severe Mental Illness’ under the ‘International Classification of
Diseases (ICD)’, which is accepted under Section 3 of the Mental
Health Care Act, 2017, generally include1.
schizophrenic and delusional disorders
2. mood (affective) disorders, including depressive,
manic and bipolar forms
3. neuroses, including phobic, panic and obsessive–
compulsive disorders
43
4. behavioural disorders, including eating, sleep
and stress disorders
5. personality disorders of different kinds.
67. American Bar Association, by its Resolution 122A passed on
August 2006, notes as under(
a) Grounds for Precluding Execution. A sentence
of death should not be carried out if the prisoner
has a mental disorder or disability that
significantly impairs his or her capacity (i) to
make a rational decision to forgo or terminate
postconviction
proceedings available to
challenge the validity of the conviction or
sentence; (ii) to understand or communicate
pertinent information, or otherwise assist
counsel, in relation to specific claims bearing on
the validity of the conviction or sentence that
cannot be fairly resolved without the prisoner's
participation; or (iii) to understand the nature
and purpose of the punishment, or to appreciate
the reason for its imposition in the prisoner's
own case.
68. In line with the above discussion, we note that there appear to be
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
disorderswith
schizophrenia.
69. Following directions need to be followed in the future cases in
light of the above discussiona.
That the postconviction
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.
b. 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.
c. 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.
d. The State may offer evidence to rebut such claim.
e. Court in appropriate cases could setup a panel to
submit an expert report.
45
f. ‘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.
70. Having said so, it needs to be considered that the accused has
submitted a report of the ClassI
Psychiatrist, Yerawada Central
Prison, indicating that he was suffering from some sort of mental
illness without providing any objective factors for such
assessment. We may reproduce the aforesaid report dated
25.09.2014, in the following mannerClinical
impression:no
delusions, no
hallucinations, sleep and appetite are normal.
Remark:Taking
regular medication and
maintaining improvement. He is under OPD
under Psychiatric treatment since 21.12.1994
and since then taking regular treatment.
Currently he is on antipsychotic
drugs…
The doctor further opined that ‘he is maintaining
good improvement on medication, good diet. He
is having psychological disturbance and
symptoms like irritability emerges when the
dosage is decreased.
71. Moreover, the expert opinion offered by a Psychiatrist registered
with the Maharashtra Medical Council working as a coordinator
of the Centre for Mental Health Law and Policy, Indian Law
Society, Pune, does not provide any further clarity. We may
extract the conclusion reached by the aforesaid report as wellWhile
no definite opinion can be given
relating to the mental health condition of
Accused ‘X’ and the treatment being
administered to him, considering that he appears
to be under treatment for a severe mental illness
such as schizophrenia or some type of psychosis,
there appears to be a need to review Accused
x’s medical records and to clinically examine
him to assess his current psychiatric status.
(emphasis supplied).
72. Even though we are not satisfied with such statements made by
the doctors as the assessment seems to be incomplete. However,
it is to be noted that the present accused has been reeling under
bouts of some form of mental irritability since 1994, as apparent
from the records placed before us. Moreover, he has suffered long
incarceration as well as a death row convict. In the totality of
circumstances, we do not consider it be appropriate to constitute
a panel for reassessment
of his mental condition, in the facts
and circumstances of this case.
73. At the same time, we cannot lose sight of the fact that 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 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, we deem it fit to direct
that the Petitioner shall remain in prison for the remainder of his
life. It need not be stated that this Court has in a plethora of
decisions held such an approach to be perfectly within its power
to adopt, and that it acts as 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).
(See for instance Swamy Shraddananda (2) v. State of
Karnataka, (2008) 13 SCC 767; Union of India v. V. Sriharan,
(2016) 7 SCC 1; Tattu Lodhi v. State of Madhya Pradesh,
(2016) 9 SCC 675).
74. In light of the above discussion, 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.
75. Further, 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.5 Moreover, due to legal
constraints on the recognition of broadspectrum
mental illness
within the Criminal Justice System, prisons inevitably become
home for a greater number of mentallyill
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.
76. In order to address the same, the Mental Healthcare Act, 2017
was brought into force. The aspiration of the Act was 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.
5 Although statistics on the same are not available for all of Indian prisons, but we were
able to compare sample studies within some Indian prisons and literature on psychiatric
morbidity concurs as well.
6 Liebling, Maruna and McAra et al., The Oxford Handbook of Criminology (6th Ed. (2017)).
49
77. Therefore, we direct the State Government 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.
78. In light of the above discussion, this review petition stands partly
allowed in the aforesaid terms and pending applications, if any,
shall also stand disposed of.
..…………………………..……..J.
[N.V. Ramana]
..…………………………..……..J.
[Mohan M. Shantanagoudar]
..…..……………………..
……..J.
[Indira Banerjee]
NEW DELHI;
APRIL 12, 2019
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