Paragraph numbers below are the court’s original numbering, recovered from the source text.
51. As argued by learned counsel appearing on behalf of the petitioner, the High Court found the offence to be in the category of rarest of the rare cases, having regard to the nature of the offence and the age of the victim. The fact that no criminal antecedents had been brought on record has casually been brushed aside as irrelevant.
52. Counsel submitted, and rightly, that the High Court failed to appreciate that the Trial Court had erred in law in awarding death penalty, by proceeding on the basis that the petitioner had a criminal history, when he had been acquitted.
53. The High Court upheld the death penalty by concluding that the convict deserved death penalty “even after ignoring the material regarding criminal antecedents of the appellant”. The High Court has not apparently considered the mitigating circumstances. This Court confirmed the death sentence on consideration of the brutality and heinousness of the crime and the age of the victim and formed opinion that the petitioner was a menace to the society and would continue to be so. He could not be reformed.
54. Counsel submitted that the brutality of the crime and age of the victim was not ground enough to inflict death sentence. Furthermore, the opinion of this Court that the petitioner would be a menace to society and could not be reformed had no basis. Learned counsel submitted that the petitioner had been convicted on circumstantial evidence, based on faulty investigation.
55. Counsel submitted that even though Dr. P.K. Das (4th Prosecution Witness) had collected the vaginal swab of the victim, which upon examination showed “few intact spermatozoa”, no DNA analysis was conducted or sought to be conducted by the prosecution for which adverse inference might be drawn. In support of the aforesaid submission, counsel placed reliance on Kalu Khan v. State of Rajasthan17 and Santosh Kumar (supra). MD. MANNAN @ ABDUL MANNAN v. STATE OF BIHAR 17(2015) 16 SCC 492
56. Notwithstanding the omission of the prosecution to conduct DNA analysis the Trial Court may have found the evidence sufficient to convict the petitioner. Moreover, as rightly argued by Counsel, the quality of evidence is a factor relevant to sentencing.
57. In Ramesh and Others v. State of Rajasthan18, this Court observed and held:- “68. Practically, the whole law on death sentence was referred to in Santosh Kumar case. In para 56, the Court observed: (SCC p. 527) ‘56. … The court must play a proactive role to record all relevant information at this stage. Some of the information relating to crime can be culled out from the phase prior to sentencing hearing. This information would include aspects relating to the nature, motive and impact of crime, culpability of convict, etc. Quality of evidence is also a relevant factor. For instance, extent of reliance on circumstantial evidence or child witness plays an important role in the sentencing analysis. But what is sorely lacking, in most capital sentencing cases, is information relating to characteristics and socio- economic background of the offender. This issue was also raised in the 48th Report of the Law Commission.’”
58. In Ram Deo Prasad v. State of Bihar19, this Court referred to and relied upon the earlier judgments of this Court in Santosh Kumar Satishbhushan Bariyar (supra) and Rameshand Others (supra) and reaffirmed that the quality of evidence was also a relevant factor in considering the question of death sentence. In the aforesaid case, this Court felt it unsafe to confirm the death sentence awarded for rape and murder of a four year old child.
59. In this case, the conviction of the petitioner is based on circumstantial evidence and the alleged extra judicial confession made by the petitioner to the police in course of investigation, on the basis of which certain recoveries were made. There is no forensic evidence against the petitioner. It would, in our view, be unsafe to uphold the imposition of death sentence on the petitioner. 18 (2011) 3 SCC 685 19(2013) 7 SCC 725
60. In Sushil Sharma vs. State (NCT of Delhi)20 this Court considered the peculiar facts of the case and did not award the death penalty since the only evidence was circumstantial and there were some factors that were to the advantage of the appellant. This Court held: “101. We notice from the above judgments that mere brutality of the murder or the number of persons killed or the manner in which the body is disposed of has not always persuaded this Court to impose death penalty. Similarly, at times, in the peculiar factual matrix, this Court has not thought it fit to award death penalty in cases, which rested on circumstantial evidence or solely on approver’s evidence.”
61. In Kalu Khan (supra), this Court referred to its earlier decision in Swamy Shraddananda (2) @ Murali Manohar Mishra vs. State of Karnataka21 and held, in the facts of the case, the balance of circumstances introduced an uncertainty in the “culpability calculus” and therefore there was an alternative to the imposition of the death penalty. Accordingly, the sentence was commuted to imprisonment for life.
62. In Santosh Kumar (supra) this Court clearly held that while there is no prohibition in law in awarding a death sentence in a case of circumstantial evidence, but that evidence must lead to an exceptional case. It was said: “167. The entire prosecution case hinges on the evidence of the approver. For the purpose of imposing death penalty, that factor may have to be kept in mind. We will assume that in Swamy Shraddananda (20, this Court did not lay down a firm law that in a case involving circumstantial evidence, imposition of death penalty would not be permissible. But, even in relation thereto the question which would arise would be whether in arriving at a conclusion some surmises, some hypothesis would be necessary in regard to the manner in which the offence was committed as contradistinguished from a case where the manner of occurrence had no role to play. Even where sentence of death is to be imposed on the basis of circumstantial evidence, the circumstantial evidence must be such which leads to an exceptional case.” MD. MANNAN @ ABDUL MANNAN v. STATE OF BIHAR 20(2014) 4 SCC 317 21(2008) 13 SCC 767
63. In Sebastian @ Chevithiyan vs. State of Kerala22, this Court held: “18. We are of the opinion that in the background of these facts, the death penalty ought to be converted to imprisonment for life but in terms laid down by this Court in Swamy Shraddanada (2) vs. State of Karnataka [(2008) 13 SCC 767] as his continuance as a member of an ordered society is uncalled for..”
64. Counsel finally submitted that the legal aid lawyer representing the petitioners had a positive onus to lead evidence regarding the possibility of reformation of the petitioner which he did not discharge. The evidence on reformation had to be independent of the circumstances of the crime. In this context, reliance has been placed on Rajesh Kumar (supra), Santosh Kumar Satishbhushan Bariyar (supra) and Lehna (supra).
65. Counsel argued that legal representation provided to the petitioner was ineffective at all stages. The petitioner was not represented by counsel before the Trial Court, at the time of framing of charge on 21.2.2004. On 6.6.2005 the petitioner made a request for legal aid. During the sentencing the Counsel did not even seek time to place mitigating circumstances.
66. Learned counsel submitted that legal representation was not only ineffective in the Trial Court but also before the High Court and before this Court. Ineffective legal representation to defend the convict on the question of punishment is no legal representation and a ground for commutation of death sentence. This proposition finds support from the judgment of this Court in Ram Deo Prasad (supra).
67. The learned counsel has drawn the attention of this Court to various orders of this Court where this Court has considered mitigating circumstances and commuted death sentence in cases involving rape and murder of a minor. Unfortunately, those orders could not be placed before the Trial Court. Had those orders been noticed, the petitioner may not have been awarded death sentence.
68. Relying on Mukesh and Anr. (supra), Counsel submitted that this Court can call for affidavit or materials gathered by the petitioner’s counsel, to fix the lacunae in sentencing in the the courts 22(2010) 1 SCC 58 below. The legal representatives of the petitioner have conducted interviews with the petitioner and his family members and the following factors require consideration:- (i) Petitioner has lived his entire life in poverty. (ii) He has never access to formal education (iii) He started working at the age of 15 when his father was incapacitated for the remainder of his life after suffering a troke. (iv) Petitioner was married at the age of 22 and has five dependent children (v) The petitioner struggled to support his wife and children (vi) The family is in abject poverty.
69. Counsel further submitted that during conversation with the petitioner, he was found to lose sense of reality and talk about being possessed by imaginary personalities which he described as jinns. He claimed to lose control over his thoughts and actions when possessed. Counsel submitted that the petitioner suffered from instability of mind. In this regard, it has been submitted that:- (i) petitioner had received multiple near fatal injuries in his head in the course of his life which have caused persistent headaches, loss of memory and disorientation. (ii) The petitioner had been diagnosed and treated for meningeal tuberculosis or Brain TB for a year and half at Darbhanga Medical College around the year 1990. Unfortunately records of the time cannot be traced. (iii) Socio-economic conditions of the petitioner made it impossible for the petitioner to avail effective treatment for his mental instability.
70. There are transcripts of a consulting psychiatrist, Dr. Kaustubh Joag, who opined on 29.10.2008 that there is “a strong possibility that the petitioner might be suffering from organic (neurological) and/ or mental health issues” and advised an assessment on the psychosis spectrum and on the organic brain damage which might have altered his behaviour. A copy of the opinion of Dr. Kaustubh Joag, MD has been made over. Dr. Joag is apparently a Psychiatrist of standing registered MD. MANNAN @ ABDUL MANNAN v. STATE OF BIHAR with Maharashtra Medical Council, who has several publications and is recipient of awards.
71. Counsel submits that if this Court gives the applicant an opportunity, an affidavit shall be filed placing the abovementioned factors on record. Counsel submits that in the light of deficient sentencing procedure as pointed out, this Court may consider the socio-economic conditions and the mental illness concerns of the petitioner as also other mitigating factors such as absence of criminal antecedents on record, to commute the death sentence imposed on the petitioner, to life imprisonment.
72. The review petition, filed about eight years ago, was as observed above, dismissed by circulation on 24.08.2011. Even thereafter, for almost three years the death sentence was not executed. This application for reopening the review and hearing the same in Open Court, has also been pending for over four years. Calling for affidavits would only delay the matter. The petitioner has for all these years virtually been in solitary confinement on some ground, may be the ground of his own security. This Court might also take judicial notice of the opinion of the psychiatrist, Dr. Joag which reveals that the petitioner is not mentally sound.
73. In Lehna (supra) Shatrughan Chauhan (supra), this Court held that mental illness is one of the supervening circumstances in commutation of death sentence to life imprisonment. The aforesaid view was confirmed by this Court in Navneet Kaur v. State (NCT of Delhi) and Another23.
74. The proposition of law which emerges from the judgments referred to above is itself death sentence cannot be imposed except in the rarest of rare cases, for which special reasons have to be recorded, as mandated in Section 354(3) of the Criminal Procedure Code. In deciding whether a case falls within the category of the rarest of rare, the brutality, and/or the gruesome and/or heinous nature of the crime is not the sole criterion. It is not just the crime which the Court is to take into consideration, but also the criminal, the state of his mind, his socio- economic background, etc. Awarding death sentence is an exception, and life imprisonment is the rule. 23(2014) 7 SCC 264
75. Therefore, before imposing the extreme penalty of death sentence, the Court would have to satisfy itself that death sentence is imperative, as otherwise the convict would be a threat to society, and that there is no possibility of reform or rehabilitation of the convict, after giving the convict an effective, meaningful, real opportunity of hearing on the question of sentence, by producing materials.
76. The legal assistance provided to the convict at every stage including the stage of hearing on the question of sentence has to be effective and even if the accused has remained silent, the Court would be obliged and duty bound to elicit relevant factors. Opportunity should have been given to the convict to bring on record mitigating circumstances for reduction of the sentence and a balance struck between the aggravating and the mitigating circumstance.
77. The petitioner, as observed above, did not get the benefit of competent legal assistance. The Trial Court also did not make any attempt to elicit materials relevant to the imposition of death sentence. No affidavit was called for. The question of whether there were any mitigating circumstances was not addressed by the Trial Court or the appellate courts.
78. As observed above, even though the hearing under Section 235(2) on the question of sentence was fixed on 31.5.2007, that is, two days after pronouncement of the judgment and order of conviction of the petitioner, on 29.5.2007, the hearing was preponed to 29.5.2007 itself after the petitioner was produced from jail custody and death sentence was imposed. 79.Imposition of death sentence on the same day after pronouncement of the judgment and order of conviction may not, in itself, vitiate the sentence, provided the convict is given a meaningful and effective hearing on the question of sentence under Section 235(2) Cr.P.C with opportunity to bring on record mitigating factors.
80. Preponement by the Trial Court of hearing under Section 235(2) Cr. P.C at short notice, which is in effect, no notice, appears to have denied the petitioner an effective hearing. The hearing under Section 235(2) was reduced to a mere formality. The Court hastily proceeded to impose death sentence considering the dastardly nature of the crime for which the petitioner had been convicted. MD. MANNAN @ ABDUL MANNAN v. STATE OF BIHAR 81. In this case, an eight year old innocent girl fell prey to the carnal desire and lust of the petitioner. It is not known whether there was any pre-meditation on the part of the petitioner to murder the victim. The circumstances in which he murdered the victim are also not known. The conviction is based on circumstantial evidence and extra judicial confession made by the petitioner to the police in course of investigation. There can be no doubt that the crime is abhorrent, but it is doubtful as to whether the crime committed by the petitioner can be termed as “rarest of the rare”.
82. There is also no material at all, not to speak of cogent material, to establish that the appellant was incapable of being reformed, that he would remain a threat to society, and that the only punishment that could be given, having regard to the nature of the crime, is death sentence.
83. The mere fact that the petitioner and/or his Counsel chose to remain silent on the question of sentence and did not make any submission with regard to the same in the Trial Court or the Higher Appellate Courts, does not debar the petitioner from agitating the existence of mitigating circumstances at this stage, since principles of constructive res judicata can have no application to matters relating to life and death.
84. It is open to the Court to either remit the question of sentence to the Trial Court for fresh consideration, after giving adequate opportunity of hearing or to remedy the breach by giving the petitioner a hearing, as held in Dagdu (supra). On overall consideration of all relevant facts and circumstances including the long pendency of proceedings, we have opted for the latter course.
85. It is well recognised worldwide, that owing to the difficult circumstances prevailing in prisons, such as, enforced solitude, inadequate health care, loss of livelihood etc., prisoners often develop mental illness after their admission into prison. The petitioner has been undergoing prolonged confinement which is solitary in effect for all practical purposes, though not termed solitary confinement. This Court, in the case of Shatrughan Chauhan (supra), while strongly relying upon international Conventions, has held “insanity” to be a pertinent supervening factor which must be taken into consideration by the courts while awarding death penalty. Moreover, this Court had held therein that Article 21 protects such persons from being executed without obtaining further clarification from the competent authority. Lastly, placing reliance upon laws operating in both international as well as national arenas, this Court concluded that mental illness is a relevant factor which warrants commutation of death sentence to life imprisonment.
86. It is also pertinent to note herein that the relevant Prison Rules also recognise the phenomenon of post-conviction mental illness and state that the execution of such persons shall be deferred, pending orders of the Government24. In th elight of the aforesaid considerations, we conclude that the mental health of the petitioner at the time of execution is a relevant mitigating factor which must be taken into consideration in the present case. As observed above, there are materials put forward now, in the form of medical opinion, which show that the petitioner is not mentally sound. For the reasons discussed above, we are of the view that it would not be appropriate and/or safe to affirm the death sentence awarded to the petitioner.
87. In Swamy Shraddananda (supra), this court held: “92. The matter may be looked at from a slightly different angle. The issue of sentencing has two aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionately inadequate. When an appellant comes to this Court carrying a death sentence awarded by the trial court and confirmed by the High Court, this Court may find, as in the present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. What then should the Court do? IF the Court’s option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the Court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully 24Bihar Prisons Manual 2012, Rule 642 MD. MANNAN @ ABDUL MANNAN v. STATE OF BIHAR belongs to the Court i.e. the vast hiatus between 14 years’ imprisonment and death. It needs to be emphasised that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 year’s imprisonment would amount to punishment at all.”
88. In Mulla and Another v. State of U.P.25, this Court has affirmed that it is open to the Court to prescribe the length of incarceration. This is especially true in cases where death sentence has been replaced by the life imprisonment. This Court observed, “the court should be free to determine the length of imprisonment which will suffice the offence committed.”
89. Even though life imprisonment means imprisonment for entire life, convicts are often granted reprieve and/or remission of sentence after imprisonment of not less than 14 years. In this case, considering the heinous, revolting, abhorrent and despicable nature of the crime committed by the petitioner, we feel that the petitioner should undergo imprisonment for life, till his natural death and no remission of sentence be granted to him.
90. We, therefore, commute the death sentence imposed on the petitioner to life imprisonment, till his natural death, without reprieve or remission.
91. The review petition is accordingly disposed of. Devika Gujral Review Petition disposed of. 25(2010) 3 SCC 508