Paragraph numbers below are the court’s original numbering, recovered from the source text.
34. When the murder is committed for a motive which MULLA v. STATE OF U.P. [P. SATHASIVAM, J.] evinces total depravity and meanness. For instanc~ when A (a) a hired assassin commits murder for the sake of money or reward (b) a cold-bl.ooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is B in a dominating position or in a position of trust, or (c) a murder is committed in the course for betrayal of the motherland. l Ill. Anti-social or socially abhoffent nature of the crime c
35. (a) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from D a place or jn order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance. (b) In cases of "bride burning" and what are known as "dowry deaths" or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. IV. Magnitude of crime
36. When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. V. Personality of victim of murder
37. When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder (b) a helpless woman or a H c person rendered helpless by old age or infirmity (c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.
38. In this background the guidelines indicated in Bachan Singh case1 will have to be culled out and applied to the facts of each individual case where t~ question of imposing of death sentence arises. 1'F'he following propositions emerge from Bachan Singh case 1: of death need not be inflicted except in gravest cases of extreme culpability. (it) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'. (iit) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. MULLA v. STATE OF U.P. [P. SATHASIVAM, J.]
39. In order to apply these guidelines inter alia the following questions may be asked and answered: (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?
40. If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so."
41. Following t~e guidelines and principles enunciated in Bachhan Singh's case & Machhi Singh's case, (supra), this Court in subsequent decisions applied those principles and either confirmed the death sentence or altered the same as life sentence vide Asharfi Lal & Others vs. State of Uttar Pradesh, (1987) 3 SCC 224, Ravji vs. State of Rajasthan, (1996) 2 sec 175 and Ram Singh VS. Sonia & Others, (2007) 3 sec 1.
42. It is settled legal position that the punishment must fit c the crime. It is the duty of the Court to impose proper punishment depending upon the decree of criminality and desirability to impose such punishment. As a measure of social necessity and also as a means of deterring other potential offenders, the sentence should be appropriate befitting the crime.
43. This Court in Bachhan Singh's case (supra) has held that: "A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."
44. Therefore, it is open for the court to grant a death penalty in an extremely narrow set of cases, which is signified by the phrase 'rarest of the rare'. This rarest of the rare test relates to "special reasons" under Section 354(3). Importantly, as the Court held, this route.is open to the Court only when there is no other punishment which may be alternatively given. This C results in the death penalty being an exception in sentencing, especially in the case where some other punishment can suffice. It was in this context that the Court had noted: "The expression "special reasons" in the context of this provision, obviously means "exceptional reasons" founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal"
45. In Panchhi v. State of U.P., (1998) 7 SCC 177, this E Court also elucidates on "when the alternative option is foreclosed" benchmark in the following terms: "16. When the Constitution Bench of this Court, by a majority, upheld the constitutional validity of death sentence in Bachan Singh v. State of Punjab this Court took particular care to say that death sentence shall not normally be awarded for the offence of murder and that it must be confined to the rarest of rare cases when the alternative option is foreclosed. In other words, the Constitution Bench did not find death sentence valid in all cases except in the aforesaid freaks wherein the lesser sentence would be, by any account, wholly inadequate. In Machhi Singh v. State of Punjab a three-Judge Bench of this Court while following the ratio in Bachan Singh case laid down certain guidelines among which the following is relevant in the present case: (SCC p.489, para 38)". MULLA v. STATE OF U.P. [P. SATHASIVAM, J.] Here, this court quoted Guideline no. 4 in para 38 of Machhi A Singh (supra) which we have extracted earlier.
46. In the same case, this court held that the brutality of the murders must be seen along with all the mitigating factors in order to come to a conclusion: "20. We have extracted the above reasons of the two courts only to point out that it is the savagery or brutal manner in which the killers perpetrated the acts on the victims including one little child which had persuaded the two courts to choose death sentence for the four persons. C No doubt brutality looms large in the murders in this case particularly of the old and also the tender-aged child. It may be that the manner in which the killings were perpetrated may not by itself show any lighter side but that is not very peculiar or very special in these killings. Brutality of the D manner in which a murder was perpetrated may be a ground but not the sole criterion for judging whether the case is one of the "rarest of rare cases" as indicated in Bachan Singh case. In a way, every murder is brutal, and the difference between one from the other may be on E account of mitigating or aggravating features surrounding the murder."
47. In Bachan Singh (supra) again, this Court discussed mitigating circumstances as follows: "206. Dr Chitale has suggested these mitigating factors: "Mitigating circumstances.-ln the exercise of its discretion in the above cases, the court shall take into account the following circumstances: (1) That the offence was committed under the influence of extreme mental or emotional disturbance. (2) The age of the accused. If the accused is young or old, he shall not be sentenced to death. c [2010) 2 S.C.R. (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above. (5) That in the facts and circumstances of the case the accused believed that he morally justified in committing the offence. (6) That the accused acted under the duress or domination of another person. (7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct. We will do no more than to say that these are undoubtedly relevant circumstances and must be given great weight in the determination of sentence."
48. Therefore, in the determination of the death penalty, para. 38 of Machhi Singh's case (supra) must be paid due attention to it. The test for the determination of the 'rarest of the rare' category of crimes inviting the death sentence thus includes broad criterions i.e. (1) the gruesome nature of the crime, (2) the mitigating and aggravating circumstances in the case. These must take into consideration the position of the criminal, and (3) whether any other punishment' would be completely inadequate. This rule emerges from the dictum of this Court that life imprisonment is the rule and death penalty an exception. Therefore, the Court must satisfy itself that death penalty would be the only punishment which can be meted out to the convict.
49. In the light of the above principles, let us examine the reasoning of the Trial Judge and its confirmation by the High Court in awarding death sentence. Before the Trial Court, High MULLA v. STATE OF U.P. [P. SATHASIVAM, J.] Court and even before us the learned amicus curiae appearing on behalf of the accused Mulla and Guddu argued that the offences alleged to have committed by these persons cannot come in the category for which they may be punished with death sentence. She also pointed out that neither they have any criminal history nor the prosecution could show that the accused Mulla and Guddu were involved in dacoity/gang or taken part in any criminal activities prior to the occurrence of the present case. Learned amicus curiae further pointed out that even the one incident pressed into service by the prosecution ended in acquittal. On the other hand, the learned c senior counsel appearing for the State by pointing various instances how the five persons were killed mercilessly by these accused, pleaded that no sympathy or leniency should be afforded to these persons and prayed for confirmation of the death sentence as awarded by the Trial Court and confirmed by the High Court.
We have already quoted the Constitution Bench decision in Bachhan Singh (supra) and three-Judge Bench decision in Machhi Singh (supra) to the effect that in the case of murder, "life imprisonment is a rule and imposition of death sentence is an exceptional one" and the same should come within the purview of "rarest of rare category". We have already noted that the accused Mulla is of the age 50 years and Guddu is of the age 30 years at the time of committing the offence in question. No material was placed or available about the family background of these two accused and whether these persons are married or not and about the family circumstance etc. Learned amicus curiae fairly stated that no family member ever approached during the entire proceedings enquiring these appellants. The perusal of the case records also shows that no one is depending on them and no family responsibility is on the shoulders of these accused persons.
50. Now, coming to their background as to the criminality, the prosecution pressed into service the earl!er incident relating to the offences of abduction, murder, mischief by firing led against these persons. The fact remained that ultimately both A of them were acquitted from those offences. Admittedly, prosecution has not placed any other material about their criminal antecedents.
51. No doubt, the aggravating circumstances against the 8 appellants show that it is a case of cold blooded murdering of five persons including one woman of the middle age, the unfortunate victims did not provoke or resist. The murder of five innocent persons were committed for ransom which was executed despite the fact that the poor villagers were unable to pay the ransom as demanded, the accused knowing fully C aware of their inability and poverty of the victims.
52. As we have noted above, along with the aggravating circumstances, it falls on us to point to the mitigating circumstances in the case. In this case, we observe three D factors which we must take into account, 1) the length of the incarceration already undergone by the convicts; 2) the current age of the convicts; and finally, 3) circumstances of the convicts generally.
53. As we have noted above, old age has emerged as a mitigating factor since Bachhan Singh (supra). This court in Swamy Shraddananiia v. State of Kamataka (2008) 13 SCC 767 substituted death sentence to life imprisonment since the convicts were 64 years old and had been in custody for 16 F years. Even in the present case, one of the convicts is around 65 years old. The charges had been framed in 1999 and they have been in custody since 1996. They have been convicted by the Sessions Court in 2005. Clearly, the appellants have been in prison for the last 14 years.
54. Another factor which unfortunately has been left out in much judicial decision-making in sentencing is the socio- economic factors leading to crime. We at no stage suggest that economic depravity justify moral depravity, but we certainly recognize that in the real world, such factors may lead a person H to crime. The 48th report of the Law Commission also reflected MULLA v. STATE OF U.P. [P. SATHASIVAM, J.] this concern. Therefore, we believe, socio-economic factors might not dilute guilt, but they may amount to mitigating circumstances. Socio-economic factors lead us to another related mitigating factor, i.e. the ability of the guilty to reform. It may not be misplaced to note that a criminal who commits crimes due to his economic backwardness is most likely to reform. This court on many previous occasions has held that this ability to reform amount to a mitigating factor in cases of death penalty.
55. In the present case, the convicts belong to an extremely poor background. With lack of knowledge on the background of the appellants, we may not be certain as to their past, but one thing which is clear to us is that they have committed these heinous crimes for want of money. Though we are shocked b~ their deeds, we find no reason why they cannot be reformed over a period of time.
56. This Court in Dalbir Singh and others v. State of Punjab (1979) 3 SCC 745 had considered the question of the length of incarceration when death penalty is reduced to life imprisonment. It was held that: "14. The sentences of death in the present appeal are liable to be reduced to life imprisonment. We may add a footnote to the ruling in Rajendra Prasad case. Taking the cue from the English legislation on abolition.we may suggest that life imprisonment which strictly means imprisonment for the whole of the men's life but in practice amounts to incarceration for a period between 10 and 14 years may, at the option of the convicting court, be subject to the condition that the sentence of imprisonment shall last as long as life lasts, where there are exceptional G indications of murderous recidivism and the community cannot run the risk of the convict being at larger. This takes care of judicial apprehensions that unless physically liquidated the culprit may at some remote time repeat murder." c I H
57. This Court in Subash Chander v. Krishan Lal (2001) 4 sec 458 considered the length of life imprisonment, while going over the precedents germane to the question and observed as follows: "20. Section 57 of the Indian Penal Code provides that in calculating fractions of terms of punishment of imprisonment for life shall be reckoned as equivalent to imprisonment for 20 years. It does not say that the transportation for life shall be deemed to be for 20 years. The position at law is that unless the life imprisonment is commuted or remitted by appropriate authority under the relevant provisions of law applicable in the case, a prisoners sentenced to life imprisonment is bound in law to serve the life term in prison. In Gopal Vinayak Godse v. State of Maharashtra & Others 1961 Cri L J 736a, the convict petitioner contended that as the term of imprisonment actually served by him exceeded 20 years, his further detention in jail was illegal and prayed for being set at liberty. Repelling such a contention and referring to the judgment of the Privy Council in Pandit Kishori Lal v. King Emperor 1944 (1) 72 LR lndAp this Court held: "If so, the next question is whether there is any provision of law whereunder a sentence for life imprisonment, without any formal remission by appropriate Government, can be automatically treated as one for a definite period.
No such provision is found in the Indian Penal Code, Code of Criminal Procedure or the Prisons Act. Though the Government of India stated before the Judicial Committee in thP case cited supra that, having regard to s. 57 of the Indian ."enal Code, 20 year's imprisonment was equivalent to a sentence of transportation for life, the Judicial Committee did not express its final opinion on that question. The Judicial Committee observed in that case thus at p.10: "Assuming that the sentence is to be regarded as one of MULLA v. STATE OF U.P. [P. SATHASIVAM, J.] twenty years, and subject to remission for good conduct, he had not earned remission sufficient to entitle him to discharge at the time of his application, and it was therefore rightly dismissed, but in saying this, their Lordships are not to be taken as meaning that a life sentence must and in all cases be treated as one of not more than twenty years, or that the convict is necessarily entitled to remission." Section 57 of the Indian_ Penal Code has no real bearing on the question raised before us. For calculating fractions of terms of punishment the section provides that transportation for life shall be regarded as equivalent to imprisonment for twenty years. It does not say that transportation for life shall be deemed to be transportation for twenty years for all purposes; nor does the amended section which substitutes the words "imprisonment for life" for "transportation for life" enable the drawing of any such all-embracing fiction. A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person's natural life." 21.
In State of Madhya Pradesh v. Ratan Singh & Ors. 1976 Cri L J 1192 this Court held that a sentence of imprisonment for life does not automatically expire at the end of the 20 years, including the remissions. "The sentence for imprisonment for life means a sentence for the entire life of the prisoner unless the appropriate Government choses to exercise its discretion to remit either the whole or a part of the sentence under Section 401 of the Code of Criminal Procedure", observed the court. To the same effect are the judgments in Sohan Lal v. Asha Ram & Others AIR 1981 SC 174a , Hagirath v. Delhi Administration 1985 Cri L J 1179 and the latest judgment in Zahid Hussein & Ors. v. State of West Bengal & Anr. 2001 Cri L J 1692 ." A Finally, this Court held that life imprisonment would mean imprisonment for the rest of the life of the convict, unless the State Government remits the sentence to 20 years. This position has been accepted by this Court on various occasions [See Shri Bhagwan v. State of Rajasthan, (2001) 6 SCC 296; B Jayawant Dattatray Suryarao v. State of Maharashtra, (2001) 10 sec 109).
58. This question came up again recently before this Court in Ramraj @ Nanhoo @ Bihnu v. State of Chhattisgarh, 2009 C (14) SCALE 533, where this Court considered the variance in precedents and ruled as follows: "15. What ultimately emerges from all the aforesaid decisions is that life imprisonment is not to be interpreted as being imprisonment for the whole of a convict's natural life within the scope of Section 45 of the aforesaid Code. The decision in Swamy Shraddananda's case (supra) was taken in the special facts of that case where on account of a very brutal murder, the appellant had been sentenced to death by the Trial Court and the reference had been accepted by the High Court. However, while agreeing with the conviction and confirming the same, the Hon'ble Judges were of the view that however heinous the crime may have been, it did not come within the. definition of "rarest of rare cases" so as to merit a death sentence. Nevertheless,' having regard to the nature of the offence, Their Lordships were of the view that in the facts of the case the claim of the petitioner for premature release after a minimum incarceration for a period of 14 years, as envisaged under Section 433A Cr.P.C., could not be acceded to, since the sentence of death had been stepped down to that of life imprisonment, which was a lesser punishment. 16. On a conjoint reading of Sections 45 and 4 7 of the Indian Penal Code and Sections 432, 433 and 433A Cr.P.C., it is now well established that a convict awarded life sentence has to undergo imprisonment for at least 14 MULLA v. STAIE OF U.P. [P. SATHASIVAM, J.] years. While Sections 432 and 433 empowers the appropriate Government to suspend, remit or commute sentences, including a sentence of death and life imprisonment, a fetter has been imposed by the legislature on such powers by the introduction of Section 433A into the Code of Criminal Procedure by the Amending Act of 1978, which came into effect on and from 18th December, 1978. By virtue of the non-obstante clause used in Section 433A, the minimum term of imprisonment in respect of an offence where death is one of the punishments provided by laws or where a death sentence has been commuted c to life sentence, has been prescribed as 14 years. In the various decisions rendered after the decision in Godse's case (supra), "imprisonment for life" has been repeatedly held to mean imprisonment for the natural life term of a convict, though the actual period of imprisonment may stand reduced on account of remissions earned. But in no case, with the possible exception of the powers vested in the President under Article 72 of the Constitution and the power vested in the Governor under Article 161 of the Constitution, even with remissions earned, can a sentence c: of imprisonment for life be reduced to below 14 years. It …. is thereafter left to the discretion of the concerned authorities to determine the actual length of imprisonment having regard to the gravity and intensity of the offence. Section 433A Cr.P.C., which is relevant for the purpose of this case, reads as follows: 433A. Restriction on powers of remission or commutation in certain cases.- Notwithstanding anything contained in Section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishment provided by laws or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment. 17.
In the present case, the facts are such that the petitioner is fortunate to have escaped the death penalty. We do not think that this is a fit case where the petitioner should be released on completion of 14 years imprisonment. The petitioner's case for premature release may be taken up by the ·concerned authorities after he completes 20 years imprisonment, including remissions earned."
59. We are in complete agreement with the above dictum of this Court. It is open to the sentencing Court to prescribe the length of incarceration. This is especially true in cases where C death sentence has been replaced by life imprisonment. The Court should be free to determine the length of imprisonment which will suffice the offence committed.
60. Thus we hold that despite the nature of the crime, the D mitigating circumstances can allow us to substitute the death penalty with life sentence.
61. Here we like to note that the punishment of life sentence in this case must extend to their full life, subject to any remission E by the Government for good reasons.
62. For the foregoing reasons and taking .into account all the aggravating and mitigating circumstances, we confirm the conviction, however, commute the death sentence into that of life imprisonment. The appeal is disposed of accordingly. K.K.T. Appeal disposed of.