Paragraph numbers below are the court’s original numbering, recovered from the source text.
41. In Mahesh Dhanaji Shinde v. State of Maharashtra30 this Court considered the conduct of the convicts and on the facts before it, it was concluded that they were capable of living a changed life if they are rehabilitated in society. In any event, the State had not contended that the convicts were beyond reformation and could not lead a changed life if they are rehabilitated in society.
42. In Sushil Sharma this Court acknowledged that among various factors, one of the factors required to be taken into consideration for awarding or not awarding capital punishment is the probability of reform and rehabilitation of the convict. This acknowledgement was made in paragraph 103 of the Report, in which it was said: “103. In the nature of things, there can be no hard-and-fast rules which the court can follow while considering whether an accused should be awarded death sentence or not. The core of a criminal case is its facts and, the facts differ from case to case. Therefore, the various factors like the age of the criminal, his social status, his background, whether he is a confirmed criminal or not, whether he had any antecedents, whether there is any possibility of his reformation and rehabilitation or whether it is a case where the reformation is impossible and the accused is likely to revert to such crimes in future and become a threat to the society are factors which the criminal court will have to examine independently in each case. Decision whether to impose death penalty or not must be taken in the light of guiding principles laid down in several authoritative pronouncements of this Court in the facts and attendant circumstances of each case.” (Emphasis supplied by us).
43. At this stage, we must hark back to Bachan Singh and differentiate between possibility, probability and impossibility of reform and rehabilitation. Bachan Singh requires us to consider the probability of reform and rehabilitation and not its possibility or its impossibility.
44. Finally, in a recent decision of this Court, in Chhannu Lal Verma v. State of Chhattisgarh31 the necessity of deciding whether 30(2014) 4 SCC 292 31 Criminal Appeal Nos. 1482-1483 of 2018 [Arising out of S.L.P. (Criminal) Nos. 5898-5899 of 2014] Decided on November 28, 2018 there is any probability of reformation and rehabilitation of the convict was emphasised in cases where there is a possibility of imposition of the death penalty. It was held in paragraph 15 of the Report as follows: “15. ……….. No evidence as to the uncommon nature of the offence or the improbability of reformation or rehabilitation of the appellant has been adduced. Bachan Singh (supra) unambiguously sets out that death penalty shall be awarded only in the rarest of rare cases where life imprisonment shall be wholly inadequate or futile owing to the nature of the crime and the circumstances relating to the criminal. Whether the person is capable of reformation and rehabilitation should also be taken into consideration while imposing death penalty………” (Emphasis supplied by us).
45. The law laid down by various decisions of this Court clearly and unequivocally mandates that the probability (not possibility or improbability or impossibility) that a convict can be reformed and rehabilitated in society must be seriously and earnestly considered by the courts before awarding the death sentence. This is one of the mandates of the “special reasons” requirement of Section 354(3) of the Cr.P.C. and ought not to be taken lightly since it involves snuffing out the life of a person. To effectuate this mandate, it is the obligation on the prosecution to prove to the court, through evidence, that the probability is that the convict cannot be reformed or rehabilitated. This can be achieved by bringing on record, inter alia, material about his conduct in jail, his conduct outside jail if he has been on bail for some time, medical evidence about his mental make-up, contact with his family and so on. Similarly, the convict can produce evidence on these issues as well.
46. If an inquiry of this nature is to be conducted, as is mandated by the decisions of this Court, it is quite obvious that the period between the date of conviction and the date of awarding sentence would be quite prolonged to enable the parties to gather and lead evidence which could assist the Trial Court in taking an informed decision on the sentence. But, there is no hurry in this regard, since in any case the convict will be in custody for a fairly long time serving out at least a life sentence.
47. Consideration of the reformation, rehabilitation and re- integration of the convict into society cannot be over-emphasised. Until Bachan Singh, the emphasis given by the courts was primarily on the nature of the crime, its brutality and severity. Bachan Singh placed the sentencing process into perspective and introduced the necessity of considering the reformation or rehabilitation of the convict. Despite the view expressed by the Constitution Bench, there have been several instances, some of which have been pointed out in Bariyar and in Sangeet v. State of Haryana32 where there is a tendency to give primacy to the crime and consider the criminal in a somewhat secondary manner. As observed in Sangeet “In the sentencing process, both the crime and the criminal are equally important.” Therefore, we should not forget that the criminal, however ruthless he might be, is nevertheless a human being and is entitled to a life of dignity notwithstanding his crime. Therefore, it is for the prosecution and the courts to determine whether such a person, notwithstanding his crime, can be reformed and rehabilitated. To obtain and analyse this information is certainly not an easy task but must nevertheless be undertaken. The process of rehabilitation is also not a simple one since it involves social re-integration of the convict into society. Of course, notwithstanding any information made available and its analysis by experts coupled with the evidence on record, there could be instances where the social re-integration of the convict may not be possible. If that should happen, the option of a long duration of imprisonment is permissible.
48. In other words, directing imprisonment for a period greater than 14 years (say 20 or 25 years) could unquestionably foreclose the imposition of a sentence of death, being an alternative option to capital punishment. DNA evidence
49. While Section 53-A of the Cr.P.C. is not mandatory, it certainly requires a positive decision to be taken. There must be reasonable grounds for believing that the examination of a person will afford evidence as to the commission of an offence of rape or an attempt to commit rape. If reasonable grounds exist, then a medical examination as postulated by Section 53-A(2) of the Cr.P.C. must be conducted and that includes examination of the accused and description of material taken from the 32(2013) 2 SCC 452 person of the accused for DNA profiling. Looked at from another point of view, if there are reasonable grounds for believing that an examination of the accused will not afford evidence as to the commission of an offence as mentioned above, it is quite unlikely that a charge-sheet would even be filed against the accused for committing an offence of rape or attempt to rape.
50. Similarly, Section 164-A of the Cr.P.C. requires, wherever possible, for the medical examination of a victim of rape. Of course, the consent of the victim is necessary and the person conducting the examination must be competent to medically examine the victim. Again, one of the requirements of the medical examination is an examination of the victim and description of material taken from the person of the woman for DNA profiling.
51. There can be no doubt that there have been remarkable technological advancements in forensic science and in scientific investigations. These must be made fully use of and the somewhat archaic methods of investigations must be given up. In Krishna Kumar Malik v. State of Haryana33 this Court referred to Section 53-A of the Cr.P.C. and observed that after the enactment of this provision with effect from 23rd June, 2006 “it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused”.
52. The necessity of taking advantage of the advancement in scientific investigation was the subject matter of discussion in State of Gujarat v. Kishanbhai.34 In that case, this Court lamented the failure of the investigating agency to take advantage of scientific investigations. It was said: “12.7.5. There has now been a great advancement in scientific investigation on the instant aspect of the matter. The investigating agency ought to have sought DNA profiling of the blood samples, which would have given a clear picture whether or not the blood of the victim [deleted] was, in fact on the clothes of the respondent- accused Kishanbhai. This scientific investigation would have unquestionably determined whether or not the respondent-accused 33(2011) 7 SCC 34(2014) 5 SCC 108 was linked with the crime. Additionally, DNA profiling of the blood found on the knife used in the commission of the crime (which the respondent-accused Kishanbhai had allegedly stolen from Dineshbhai Karsanbhai Thakore, PW 6), would have uncontrovertibly determined, whether or not the said knife had been used for severing the legs of the victim [deleted], to remove her anklets. 12.7.6. In spite of so much advancement in the field of forensic science, the investigating agency seriously erred in not carrying out an effective investigation to genuinely determine the culpability of the respondent-accused Kishanbhai.” (Emphasis supplied by us).
53. More recently, in Mukesh and Anr. v. State (NCT of Delhi)35 there is a brief reference to Section 53-A and Section 164-A of the Cr.P.C. What is important in this brief reference is the acknowledgment that DNA evidence is being increasingly relied upon by courts. It was observed in paragraphs 216 and 217 as follows: “216. In our country also like several other developed and developing countries, DNA evidence is being increasingly relied upon by courts. After the amendment in the Criminal Procedure Code by the insertion of Section 53A by Act 25 of 2005, DNA profiling has now become a party of the statutory scheme. Section 53A relates to the examination of a person accused of rape by a medical practitioner.” “217. Similarly, under Section 164A inserted by Act 25 of 2005, for medical examination of the victim of rape, the description of material taken from the person of the woman for DNA profiling is must.” (Emphasis supplied by us).
54. For the prosecution to decline to produce DNA evidence would be a little unfortunate particularly when the facility of DNA profiling is available in the country. The prosecution would be well advised to take advantage of this, particularly in view of the provisions of Section 53-A and Section 164-A of the Cr.P.C. We are not going to the extent of suggesting that if there is no DNA profiling, the prosecution case cannot 35(2017) 6 SCC 1 be proved but we are certainly of the view that where DNA profiling has not been done or it is held back from the Trial Court, an adverse consequence would follow for the prosecution.
55. In Mukesh a separate opinion was delivered by Justice Banumathi and in paragraph 455 of the Report it was held that DNA profiling is an extremely accurate way of comparing specimens and such testing can make a virtually positive identification. It was stated: “455. DNA profiling is an extremely accurate way to compare a suspect’s DNA with crime scene specimens, victim’s DNA on the blood-stained clothes of the accused or other articles recovered, DNA testing can make a virtually positive identification when the two samples match. A DNA finger print is identical for every part of the body, whether it is the blood, saliva, brain, kidney or foot on any part of the body. It cannot be changed; it will be identical no matter what is done to a body. Even relatively minute quantities of blood, saliva or semen at a crime scene or on clothes can yield sufficient material for analysis. The Experts opine that the identification is almost hundred per cent precise. Using this i.e. chemical structure of genetic information by generating DNA profile of the individual, identification of an individual is done like in the traditional method of identifying finger prints of offenders.” (Emphasis supplied by us).
56. In the context of importance of scientific and technological advances having been made, we may recall the observation of this Court in Selvi v. State of Karnataka36 in paragraph 220 of the Report that “The matching of DNA samples is emerging as a vital tool for linking suspects to specific criminal acts.”
57. Insofar as the present petitions before us are concerned, there is no dispute that samples were taken from the body of the accused and sent for DNA profiling. However, the result was not produced before the Trial Court. There is absolutely no explanation for this and in the absence of any justification for not producing the DNA evidence, we are of the view that it would be dangerous, on the facts of this case, to uphold the sentence of death on the appellant. 36(2010) 7 SCC 263 Prior history of the convict or criminal antecedents
58. The history of the convict, including recidivism cannot, by itself, be a ground for awarding the death sentence. This needs some clarity. There could be a situation where a convict has previously committed an offence and has been convicted and sentenced for that offence. Thereafter, the convict commits a second offence for which he is convicted and sentence is required to be awarded. This does not pose any legal challenge or difficulty. But, there could also be a situation where a convict has committed an offence and is under trial for that offence. During the pendency of the trial he commits a second offence for which he is convicted and in which sentence is required to be awarded.
59. Sections 54 of the Indian Evidence Act, 1872 prohibits the use of previous bad character evidence except when the convict himself chooses to lead evidence of his good character. The implication of this clearly is that the past adverse conduct of the convict ought not to be taken into consideration for the purposes of determining the quantum of sentence, except in specified circumstances.
60. There are exceptions to this general rule. For example, Section 376-E of the IPC provides as follows: “376E. Punishment for repeat offenders. – Whoever has been previously convicted of an offence punishable under Section 376 or Section 376-A or Section 376AB, or Section 376D or Section 376DA or Section 376DB and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, or with death.”
61. Similarly, Section 16(2) of the Prevention of Food Adulteration Act, 1954 provides as follows: “16. Penalties. – (1) xxx xxx xxx (2) If any person convicted of an offence under this Act commits a like offence afterwards it shall be lawful for the court before which the second or subsequent conviction takes place to cause the offender’s name and place of residence, the offence and the penalty imposed to be published at the offender’s expense in such newspapers or in such other manner as the court may direct. The expenses of such publication shall be deemed to be part of the cost attending the conviction and shall be recoverable in the same manner as a fine.”
62. Finally, it is worthwhile to refer to Section 75 of the IPC which provides for enhanced punishment for certain offences under Chapter XII or Chapter XVII of the IPC after previous convictions. This Section reads as follows: “75. Enhanced punishment for certain offences under Chapter XII or Chapter XVII after previous conviction.– Whoever, having been convicted, – (a) by a Court in India, of an offence punishable under Chapter XII or Chapter XVII of this Code with imprisonment of either description for a term of three years or upwards, shall be guilty of any offence punishable under either of those Chapters with like imprisonment for the like term, shall be subject for every such subsequent offence to imprisonment for life, or to imprisonment of either description for a term which may extend to ten years.”
63. The scope of Section 75 of the IPC was discussed in the 42nd Report of the Law Commission of India in the following words: “[This] is an attempt to deal with the problem of habitual offenders and recidivism. Other penal systems also have tried to grapple with this complex problem, but nowhere have the attempts met with marked success, perhaps because the causes of crime are themselves complex. Because the previous sentence has failed both in its object of reforming the offender and in its object of deterring him from crime, the law, as a measure of last resort, concentrates on protecting society from the offender by sending him to jail for a longer term than before.”
64. It is worthwhile to note that the three provisions of law quoted above deal with instances where there is a prior conviction and do not deal with the pending trial of a case involving an offence. Therefore, 37(2010) 14 SCC 641 while it is possible to grant an enhanced sentence, as provided by statute, for a recurrence of the same offence after conviction, the possibility of granting an enhanced sentence where the statute is silent does not arise. Consequently, it must be held that in terms of Section 54 of the Indian Evidence Act the antecedents of a convict are not relevant for the purposes of awarding a sentence, unless the convict gives evidence of his good character.
65. The importance of a conviction as against a pending trial was emphasised in Mohd. Farooq Abdul Gafur v. State of Maharashtra37 wherein the presumption of innocence was adverted to as a human right and it was held in paragraph 178 of the Report: “178. In our opinion the trial court had wrongly rejected the fact that even though the accused had a criminal history, but there had been no criminal conviction against the said three accused. It had rejected the said argument on the ground that a conviction might not be possible in each and every criminal trial. In our opinion unless a person is proven guilty, he should be presumed innocent. Further, nothing has been brought on behalf of the State even after all these years, that the criminal trials that had been pending against the accused had resulted in their conviction. Unless the same is shown by the documents on records we would presume to the contrary. Presumption of innocence is a human right. The learned trial Judge should also have presumed the same against all the three accused. In our opinion the alleged criminal history of the accused had a major bearing on the imposition of the death sentence by the trial court on the three accused. That is why in our opinion he had erred in this respect.” (Emphasis supplied by us).
66. However, in Gurmukh Singh v. State of Haryana38 while this Court did not consider or discuss the prior history of the convict as a factor for sentencing, it was noted in paragraph 23 of the Report that one of the relevant factors for consideration before awarding an appropriate sentence to the convict would be the number of other criminal cases pending against him. In our opinion, this does not lay down the correct law since it overlooks the presumption of innocence. It was held in paragraph 23 of the Report as follows: 38(2009) 15 SCC 635 “23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under: (a) to (j) xxx xxx xxx (k) Number of other criminal cases pending against the accused; (l) to (m) xxx xxx These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.” (Emphasis supplied by us).
67. In Bantu v. State of M.P.39 this Court noted that there was nothing on record to indicate that the appellant had any criminal antecedents nor could it be said that he would be a grave danger to the society at large despite the fact that the crime committed by him was heinous. It was held in paragraph 8 of the Report as follows: “8. However, the learned counsel for the appellant submitted that in any set of circumstances, this is not the rarest of the rare case where the accused is to be sentenced to death. He submitted that age of the accused on the relevant day was less than 22 years. It is his submission that even though the act is heinous, considering the fact that no injuries were found on the deceased, it is probable that death might have occurred because of gagging her mouth and nosetrix [nostril] by the accused at the time of incident so that she may not raise a hue and cry. The death, according to him, was accidental and an unintentional one. In the present case, there is nothing on record to indicate that the appellant was having any criminal record nor can it be said that he will be a grave danger to the society at large. It is true that his act is heinous and requires to be condemned but at the same time it cannot be said that it is the rarest of the rare case where the accused requires to be eliminated from the society. Hence, there is no justifiable reason to impose the death sentence.” (Emphasis supplied by us). 39(2001) 9 SCC 615
68. In Amit v. State of Maharashtra40 this Court adverted to the prior history of the appellant and noted that there is no record of any previous heinous crime and also there is no evidence that he would be a danger to society if the death penalty is not awarded to him. It was held in paragraph 10 of the Report: “10. The next question is of the sentence. Considering that the appellant is a young man, at the time of the incident his age was about 20 years; he was a student; there is no record of any previous heinous crime and also there is no evidence that he will be a danger to the society, if the death penalty is not awarded. Though the offence committed by the appellant deserves severe condemnation and is a most heinous crime, but on cumulative facts and circumstances of the case, we do not think that the case falls in the category of rarest of the rare cases…….” (Emphasis supplied by us).
69. In the case of Rahul v. State of Maharashtra41 this Court noted that there was no adverse report about the conduct of the appellant therein either by the jail authorities or by the probationary officer and that he had no previous criminal record or at least nothing was brought to the notice of the Court. It was observed in paragraph 4 of the Report as follows: “4. We have considered all the relevant aspects of the case. It is true that the appellant committed a serious crime in a very ghastly manner but the fact that he was aged 24 years at the time of the crime, has to be taken note of. Even though, the appellant had been in custody since 27-11-1999 we are not furnished with any report regarding the appellant either by any probationary officer or by the jail authorities. The appellant had no previous criminal record, and nothing was brought to the notice of the Court. It cannot be said that he would be a menace to the society in future. Considering the age of the appellant and other circumstances, we do not think that the penalty of death be imposed on him.” (Emphasis supplied by us). 40(2003) 8 SCC 93 41(2005) 10 SCC 322
70. Similarly, in Surendra Pal Shivbalakpal v. State of Gujarat42 the absence of any involvement in any previous criminal case was considered to be a factor to be taken into consideration for the purposes of awarding the sentence to the appellant therein. It was held in paragraph 13 of the Report as follows: “13. The next question that arises for consideration is whether this is a “rarest of rare case”; we do not think that this is a “rarest of rare case” in which death penalty should be imposed on the appellant. The appellant was aged 36 years at the time of the occurrence and there is no evidence that the appellant had been involved in any other criminal case previously and the appellant was a migrant labourer from U.P. and was living in impecunious circumstances and it cannot be said that he would be a menace to society in future and no materials are placed before us to draw such a conclusion. We do not think that the death penalty was warranted in this case. We confirm conviction of the appellant on all the counts, but the sentence of death penalty imposed on him for the offence under Section 302 IPC is commuted to life imprisonment.” (Emphasis supplied by us).
71. The importance and significance of a conviction as against a pending trial was the subject matter of discussion in the Supreme Court of Canada. In Her Majesty The Queen v. Norman Skolnick43 Coke’s Institutes was partially “modified” to the effect that a person cannot be sentenced for the third offence before he has been convicted of the second offence; nor can that person be sentenced for the second offence before he has been convicted for the first offence. The second offence must be committed after the first conviction and the third offence must be committed after the second conviction. The principle appears to be that the accused does not face the jeopardy of an increased penalty unless he has previously been convicted and sentenced.
72. Similarly, the Supreme Court of the Northern Territory of Australia in Scott Nathan Schluter v. Robin Laurence Trenerry44 took the view that escalating the period of actual imprisonment could be justified 42(2005) 3 SCC 127 43[1982] 2 SCR 47 44(1997) 6 NTLR 194 if there is a second finding of guilt. If that second finding of guilt is missing then there “would be no opportunity for the multiple offender, not previously charged, to become aware of the certainty of the severity of punishment for the proscribed criminal behaviour.”
73. It is therefore quite clear from the various decisions placed before us that the mere pendency of one or more criminal cases against a convict cannot be a factor for consideration while awarding a sentence. Not only is it statutorily impermissible (except in some cases) but even otherwise it violates the fundamental presumption of innocence – a human right – that everyone is entitled to.
74. Insofar as the present case is concerned, it has come on record that there are two cases pending against the appellant for similar offences. Both these were pending trial. Notwithstanding this, the Trial Judge took this into account as a circumstance against the appellant. It would have been, in our opinion, far more appropriate for the Sessions Judge to have waited, if he thought it necessary to take the pendency of these cases into consideration, for the trials to be concluded. For ought we know, the two cases might have been foisted upon the appellant and he might have otherwise been proved not guilty.
75. We may generally mention, in conclusion, that there is really no reason for the Trial Judge to be in haste in awarding a sentence in a case where he might be considering death penalty on the ground that any other alternative option is unquestionably foreclosed. The convict would in any case remain in custody for a fairly long time since the minimum punishment awarded would be imprisonment for life. Therefore, a Trial Judge can take his time and sentence the convict after giving adequate opportunity for the prosecution as well as for the defence to produce material as postulated in Bachan Singh so that the possibility of awarding life sentence is open to the Trial Judge as against the death sentence. It must be appreciated that a sentence of death should be awarded only in the rarest of rare cases, only if an alternative option is unquestionably foreclosed and only after full consideration of all factors keeping in mind that a sentence of death is irrevocable and irretrievable upon execution. It should always be remembered that while the crime is important, the criminal is equally important insofar as the sentencing process is concerned. In other words, courts must “make assurance double sure”.45 45Shakespeare’s Macbeth, Act IV, Scene i
76. We may note here, by way of a post script that during the course of submissions, it was stated by learned counsel for the appellant that in the meanwhile the appellant had been convicted in one of the pending cases, that is, State of Maharashtra v. Raju @ Rajendra judgement Wasnik (S.T. No. 162 of 2007). This case was decided by the Sessions Judge, Amravati, Maharashtra on 18th April, 2016. The Trial Judge imposed a sentence of imprisonment for life on the appellant upon his conviction, while taking note that in the present case, the appellant had been awarded the death sentence.
77. A perusal of the website of the eCourts Project of the eCommittee of the Supreme Court revealed that in fact there were a total of four cases against the appellant, including the one that we are dealing with. In paragraph 38 of the decision rendered by the Sessions Judge in S.T. No. 162 of 2007 it was recorded as follows: “[38] The victim of this crime was aged about 9 to 10 years old and prosecution proved that the accused committed rape on her. It appears from the facts and circumstances and record that in Crime No.23/2007 of police station Kholapurigate, Amravati (S.T.No.183/2007) the accused was convicted and sentenced to death for the offence punishable under sections 302, 376(2)(f) and 377 of Indian Penal Code. He is also convicted in Crime No.31/2007 of police station Daryapur (S.T.No.112/2007) and he is sentenced to suffer imprisonment for life for the offence punishable under section 376(2)(f) of Indian Penal Code. He is also convicted in Crime No.21/2006 of police station Chikhaldara, District Amravati (S.T.No.66/2007) and he is sentenced to suffer imprisonment for life for the offence punishable under sections 363, 366, 376(2)(f), 302 and 201 of Indian Penal Code. The death sentence in S.T.No.183/2007 is confirmed up to the Hon’ble Supreme Court of India and it appears that the Mercy Petition filed by the accused also came to be rejected by the Hon’ble President of India. The accused committed the offence of same nature i.e. rape on minor and innocent girl. It is his 4th offence of same nature in which the offence under sections 363, 366 and 376(2)(f) of Indian Penal Code is proved against the accused. It appears that the accused is in habit to commit rape on minor girl. Taking in to consideration the gravity of offence and the facts and circumstances, I am of the opinion that the accused is not deserved for leniency and according to me, the following punishment would meet the ends of justice…….” We have not been informed whether the conviction orders passed against the appellant have been set aside or not.
We are therefore proceeding on the basis that the appellant has been awarded a sentence of death in the present case and a sentence of imprisonment for life in the three other cases decided against him, subject to any order passed by the appellate court.
78. We must however express our shock and anguish that the appellant had the opportunity to commit the offences alleged against him on more than one occasion. This could have been possible only if the appellant had been on bail and our shock and anguish is that in the background of the facts before us, the appellant was actually granted bail. Conclusion
79. Insofar as the present petition is concerned, we are of opinion that for the purposes of sentencing, the Sessions Judge, the High Court as well as this Court did not take into consideration the probability of reformation, rehabilitation and social re-integration of the appellant into society. Indeed, no material or evidence was placed before the courts to arrive at any conclusion in this regard one way or the other and for whatever it is worth on the facts of this case. The prosecution was remiss in not producing the available DNA evidence and the failure to produce material evidence must lead to an adverse presumption against the prosecution and in favour of the appellant for the purposes of sentencing. The Trial Court was also in error in taking into consideration, for the purposes of sentencing, the pendency of two similar cases against the appellant which it could not, in law, consider. However, we also cannot overlook subsequent developments with regard to the two (actually three) similar cases against the appellant.
80. For all these reasons, we are of opinion that it would be more appropriate looking to the crimes committed by the appellant and the material on record including his overall personality and subsequent events, to commute the sentence of death awarded to the appellant but direct that he should not be released from custody for the rest of his normal life. We order accordingly.
81. The petitions stand disposed of accordingly. Divya Pandey Review petitions disposed of.