In India, courts impose the death penalty only in the "rarest of rare" cases, as established in the landmark Bachan Singh v. State of Punjab (1980) case, by balancing aggravating circumstances (favoring death) against mitigating circumstances (favoring life imprisonment).
These factors emphasize the severity of the crime and the criminal's conduct, tipping the balance toward capital punishment.
The death penalty in India is governed by the Bharatiya Nyaya Sanhita (BNS) 2023 and various special acts, representing the most severe form of punishment for heinous crimes. Here's a comprehensive overview:
The BNS contains multiple sections that prescribe capital punishment for serious offenses:
Sexual Offenses:
The Bachan Singh v. State of Punjab (1980) judgment reshaped India’s capital punishment jurisprudence by introducing the "rarest of rare" doctrine. Here’s an analysis in IRAC format:
Whether the death penalty under Section 302 IPC (punishment for murder) and Section 354(3) CrPC (requiring "special reasons" for imposing death) violates Articles 14 (equality), 19 (fundamental freedoms), and 21 (right to life) of the Constitution.
Whether judicial discretion in sentencing leads to arbitrariness.
This Court, while exercising its appellate jurisdiction
under Article 136 of the Constitution of India,
possesses the authority to scrutinize not only the
conviction of an accused but also the
appropriateness of the sentence imposed. As
articulated in the principles laid down in Swamy
Shraddananda 1, the power to impose or modify a
sentence within the prescribed framework of the
Penal Code is exclusively vested in the High Court
and this Court. The alternate punishment for
offences punishable by death, such as imprisonment
for a specific term exceeding 14 years or until the
natural life of the convict, remains within the judicial
conscience of this Court and the High Court. This
ensures that the gravity of the offence, the mitigating
and aggravating circumstances, and the possibility of
reformation are thoroughly assessed before
irrevocable sentences such as capital punishment
are affirmed. Therefore, the commutation of a death
sentence to imprisonment for the remainder of the
convict’s natural life, as an alternative to death, is
well within the judicial prerogative of this Court and
adheres to the constitutional mandate of ensuring
justice.
105. We, therefore, reiterate that the power
derived from the Penal Code for any modified
punishment within the punishment provided for
in the Penal Code for such specified offences can
only be exercised by the High Court and in the
event of further appeal only by the Supreme
Court and not by any other court in this
country. To put it differently, the power to
impose a modified punishment providing for any
specific term of incarceration or till the end of
the convict's life as an alternate to death
penalty, can be exercised only by the High Court
and the Supreme Court and not by any other
inferior court.
106. Viewed in that respect, we state that the
ratio laid down in Swamy Shraddananda (2)
[Swamy Shraddananda (2) v. State of
Karnataka, (2008) 13 SCC 767 : (2009) 3 SCC
(Cri) 113] that a special category of sentence;
instead of death; for a term exceeding 14 years
and put that category beyond application of
remission is well founded and we answer the
said question in the affirmative. We are,
therefore, not in agreement with the opinion
expressed by this Court in Sangeet v. State of
Haryana [Sangeet v. State of Haryana, (2013) 2
SCC 452 : (2013) 2 SCC (Cri) 611] that the
deprival of remission power of the appropriate
Government by awarding sentences of 20 or 25
years or without any remission as not
permissible is not in consonance with the law
and we specifically overrule the same.”
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.2220-2221 OF 2022
DEEN DAYAL TIWARI Vs STATE OF
UTTAR PRADESH
Citation: 2025 INSC 111.
Dated: JANUARY 16, 2025.
Read full Judgment here: Click here.
Print PageGuided by the above facts, we must scrutinize not
only the nature of the offence but also the totality of
the offender’s circumstances. In the instant case,
while the offence is undoubtedly brutal, certain
mitigating factors, especially the Appellant’s lack of
criminal antecedents and his reported conduct in
prison, tilt the scales in favour of commutation. There
is no material demonstrating that he would remain a
perpetual threat to society or that he is beyond
reform. Indeed, the Probation Officer’s input and the
Superintendent of District Jail’s report show a
potentially reformable individual. Further, this Court
has consistently recognized that the imposition of
capital punishment is an exception and not the rule.
Even where multiple murders have been committed,
if there is evidence or at least a reasonable possibility
of reform, a lesser sentence must be preferred. {Para 21}
22. Weighing the totality of circumstances and
having regard to the legal principles discussed above,
we are of the view that while the crime is heinous and
deserves the highest degree of condemnation, it does
not meet the threshold of “the rarest of rare” so as to
irrevocably foreclose the option of life imprisonment.
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.2220-2221 OF 2022
DEEN DAYAL TIWARI Vs STATE OF
UTTAR PRADESH
Citation: 2025 INSC 111.
Dated: JANUARY 16, 2025.
Print PageThe constitutionality of capital punishment in India has been a subject of extensive legal scrutiny and debate, primarily revolving around its alignment with fundamental rights enshrined in the Indian Constitution. The Supreme Court of India has addressed this issue through several landmark judgments, establishing a framework that permits the death penalty under specific circumstances while also emphasizing the need for a fair judicial process.
Historical Context and Legal Framework
The death penalty is codified within Indian law, particularly under Section 302 of the Indian Penal Code (IPC) and governed by the Criminal Procedure Code (CrPC). The legal discourse on capital punishment began with the case of Jagmohan Singh v. State of Uttar Pradesh (1973), where it was contended that capital punishment violated Articles 14 (right to equality) and 21 (right to life) of the Constitution. The Supreme Court upheld the death penalty, asserting that it did not infringe upon these rights when applied in accordance with established legal procedures.
Print PageSentence:
32. The Trial Court has imposed the sentence of death and the High Court has confirmed the same. It is time for us to draw up a balance sheet of the aggravating and mitigating circumstances to decide whether the case falls in the category of rarest of rare case. We also need to examine whether the sentence of life imprisonment is foreclosed and the possibility of reformation is completely ruled out.
33. Without doubt, the crime committed by the appellant was diabolic in character. He enticed the innocent child by tempting him with ice-cream and brutally sodomized and murdered the four-year old. The appellant also mercilessly strangulated the deceased. The post-mortem report clearly indicated that death was due to asphyxia by throttling.
34. On the mitigating side, the appellant was 24 years of age when the incident happened; he had no criminal antecedents; the appellant hails from a low socio-economic household as the Mitigation Investigation Report filed by Ms. Komal of Project 39A, pursuant to the order of this Court dated 05.10.2023 indicates. The mitigation report further indicates that experts have opined that the appellant is diagnosed with moderate intensity psychotic features and intellectual disability and that the appellant had in his early childhood contacted Tuberculosis Meningitis (TBM). The appellant, according to the report, maintains family ties with his 64-year-old mother who takes care of his 10 year old daughter. The appellant's wife has deserted him.
35. By an order of 05.10.2023, we also called for the conduct and behaviour of the appellant from the Superintendent of Vadodara Central Jail as well as a report on his mental health. The report from the Superintendent of Vadoara Jail indicates, that the behaviour of the appellant in prison is completely normal and that his conduct in jail is good. The report from the Hospital for Mental Health indicates that the appellant has no psychiatric problem at present. The report does indicate a feeling of remorse in the appellant. The appellant has contended that the projective test adopted by the Hospital for Mental Health has its limitations for reliability. Be that as it may.
36. Considering the overall facts and circumstances, we hold that the present is not a case where it can be said that the possibility of reformation is completely ruled out. The option of life imprisonment is also not foreclosed. The case does not fall in the category of rarest of rare case. We are of the opinion that ends of justice would be met if we adopt the path carved out in Swami Shraddananda v. State of Karnataka (2008) 13 SCC 767.
37. Even though the case of the appellant falls short of the rarest of rare category, considering the nature of the crime, we are strongly of the view that a sentence of life imprisonment which normally works out for 14 years would be grossly disproportionate and inadequate. Having regard to the nature of the offence, a sentence of imprisonment for a prescribed period without remission would alone be proportionate to the crime and also not jeopardize the public confidence in the efficacy of the legal system.
38. This Court recently in Nawas Alias Mulanavas v. State of Kerala 2024 SCC OnLine SC 315, adverting to this aspect had the following to say:—
“29. How much is too much and how much is too little? This is the difficult area we have tried to address here. As rightly observed, there can be no straitjacket formulae. Pegging the point up to which remission powers cannot be invoked is an exercise that has to be carefully undertaken and the discretion should be exercised on reasonable grounds. The spectrum is very large. The principle in Swamy Shraddananda (supra) as affirmed in V. Sriharan (supra) was evolved as the normally accepted norm of 14 years was found to be grossly disproportionate on the lower side. At the same time, since it is a matter concerning the liberty of the individual, courts should also guard against any disproportion in the imposition, on the higher side too. A delicate balance has to be struck. While undue leniency, which will affect the public confidence and the efficacy of the legal system, should not be shown, at the same time, since a good part of the convict's life with freedom is being sliced away (except in cases where the Court decides to impose imprisonment till rest of the full life), in view of his incarceration, care should be taken that the period fixed is also not harsh and excessive. While by the very nature of the task mathematical exactitude is an impossibility, that will not deter the Court from imposing a period of sentence which will constitute “a just dessert” for the convict…..”
39. Applying this principle, we hold that a sentence of imprisonment for a period of 25 (twenty-five) years without remission would be ‘a just dessert’.
IN THE SUPREME COURT OF INDIA
(Before B.R. Gavai, Aravind Kumar and K.V. Viswanathan, JJ.)
Criminal Appeal Nos. _________ of 2024
(@ Special Leave Petition (Crl.) Nos. 9015-9016 of 2019)
Sambhubhai Raisangbhai Padhiyar Vs State of Gujarat
Decided on December 17, 2024
Citation: 2024 SCC OnLine SC 3769,2024 INSC 987.
Read full Judgment here: Click here.
Print PageThe argument of Ms. Uttara Babbar, learned senior counsel is that no DNA test was carried out. No doubt, the DNA test was not carried out and it would have been better for the prosecution to have done the same. However, keeping the overall conspectus of the case in mind, we do not think that not conducting DNA test was fatal to the prosecution. We draw support from the judgment of this Court in Veerendra v. State of Madhya Pradesh, (2022) 8 SCC 668, wherein it was held as under:
“53. In view of the nature of the provision under Section 53-ACrPC and the decisions referred to, we are also of the considered view that the lapse or omission (purposeful or otherwise) to carry out DNA profiling, by itself, cannot be permitted to decide the fate of a trial for the offence of rape especially, when it is combined with the commission of the offence of murder as in case of acquittal only on account of such a flaw or defect in the investigation the cause of criminal justice would become the victim. The upshot of this discussion is that even if such a flaw had occurred in the investigation in a given case, the court has still a duty to consider whether the materials and evidence available on record before it, are enough and cogent to prove the case of the prosecution. In a case which rests on circumstantial evidence, the Court has to consider whether, despite such a lapse, the various links in the chain of circumstances form a complete chain pointing to the guilt of the accused alone in exclusion of all hypothesis of innocence in his favour.”{Para 26}
IN THE SUPREME COURT OF INDIA
(Before B.R. Gavai, Aravind Kumar and K.V. Viswanathan, JJ.)
Criminal Appeal Nos. _________ of 2024
(@ Special Leave Petition (Crl.) Nos. 9015-9016 of 2019)
Sambhubhai Raisangbhai Padhiyar Vs State of Gujarat
Decided on December 17, 2024
Citation: 2024 SCC OnLine SC 3769,2024 INSC 987.
Read full Judgment here: Click here.
Print PageCircumstance No. 5 : Matching of Blood Group
25. Blood group on the clothes of the deceased tallied with the blood group of the accused as per Exh.50, the Serological Analysis Report. PW-9 the father of the deceased identified the clothes worn by the deceased on the fateful day. PW-17 the Investigating Officer Gajendra Kumar has clearly deposed that the apparel of the deceased was recovered near the situs of the crime. PW-7 Dr. Kamlesh Kumar who medically examined the appellant deposed that samples of pubic hair, blood, saliva, semen and nails were obtained of the accused and he further deposed that the samples were sealed and the Muddamal was sent for further investigation through police constable to FSL, Surat. Coming back to PW-17, he deposed about receiving the sealed samples and keeping it in safe custody. Thereafter, he deposed that a forwarding note was prepared for analysis of the aforementioned Muddamal and the sealed samples to FSL, Surat and that a constable was deputed to submit the same to FSL, Surat. The receipt obtained was duly filed. The Biological and Serological Reports received from FSL, Surat were marked as Exh.49 and Exh.50 respectively. The Serological analysis clearly showed that the small trouser (leggings), the anal swab (semen) and the perianal swab (semen) had blood of group O. The accused had also blood group O. We are satisfied with the chain of custody as emerging from the evidence. The defence has a case that sample mark H mentioned in Exh.47 which is the forwarding letter to the forensic science laboratory has neither been analyzed in the biological analysis Exh.49 or in the serological analysis Exh.50 and hence tampering cannot be ruled out. The State has countered the submission by contending that sample mark ‘H’ in Exh.47 is a Khaki cover and is not an item recovered from the accused and as such the State counsel contends that in all likelihood sample mark H was a cover in which all other samples were put. The matching of the blood group has occurred in sample F1 which is the anal swab (semen) and F2 perianal swab (semen). The blood group of the aforesaid semen was found to be O. It should be noted that the sample of semen of appellant along with blood and saliva in sample no. G1 to G4 also had blood group O. The judgment in Prakash v. State of Karnataka (2014) 12 SCC 133 cited by the appellant also does not advance the case of the defence. It is clear from the facts of the case, that the blood sample therein was decomposed and its original grouping could not be determined. In any event, coupled with other circumstances indicated hereinabove, we are inclined to consider the matching of blood group as an additional link in the chain as far as the facts of this case is concerned.
IN THE SUPREME COURT OF INDIA
(Before B.R. Gavai, Aravind Kumar and K.V. Viswanathan, JJ.)
Criminal Appeal Nos. _________ of 2024
(@ Special Leave Petition (Crl.) Nos. 9015-9016 of 2019)
Sambhubhai Raisangbhai Padhiyar Vs State of Gujarat
Decided on December 17, 2024
Citation: 2024 SCC OnLine SC 3769,2024 INSC 987.
Read full Judgment here: Click here.
Print PageCircumstance No. 4 : Conduct under Section 8 of the Evidence Act:
24. Irrespective of the admissibility of the discovery, panchnama (Exh.18) and the recovery panchnama Exh. 21 and irrespective of the admissibility of the recovery of the clothes of the deceased on the statement of the accused, we find that the conduct of the appellant in leading the investigation team and the panchas and pointing out where the apparel of the deceased was hidden would be admissible. In this case PW-17, the Investigating Officer has clearly deposed that the accused showed willingness to show the place where he had thrown the clothes. PW-17, his team and the panchas reached by walking to the place as indicated by the accused. This Court in A.N. Venkatesh v. State of Karnataka (2005) 7 SCC 714 relying on Prakash Chand v. State (Delhi Admn.), (1979) 3 SCC 90 held as under:
“9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admn.) [(1979) 3 SCC 90 : 1979 SCC (Cri) 656 : AIR 1979 SC 400]. Even if we hold that the disclosure statement made by the accused-appellants (Exts. P-15 and P-16) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8. The evidence of the investigating officer and PWs 1, 2, 7 and PW 4 the spot mahazar witness that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an admissible piece of evidence under Section 8 as the conduct of the accused. Presence of A-1 and A-2 at a place where ransom demand was to be fulfilled and their action of fleeing on spotting the police party is a relevant circumstance and are admissible under Section 8 of the Evidence Act.”
We take this as an additional link in the chain of circumstances.
IN THE SUPREME COURT OF INDIA
(Before B.R. Gavai, Aravind Kumar and K.V. Viswanathan, JJ.)
Criminal Appeal Nos. _________ of 2024
(@ Special Leave Petition (Crl.) Nos. 9015-9016 of 2019)
Sambhubhai Raisangbhai Padhiyar Vs State of Gujarat
Decided on December 17, 2024
Citation: 2024 SCC OnLine SC 3769,2024 INSC 987.
Print Pageiv. The Sessions Court shall endeavour to follow the following guidelines:
a. As soon as the order of the High Court confirming or imposing the death sentence is received by the Sessions Court, a note thereof must be taken, and the disposed of case shall be listed on the cause list. The proceedings can be numbered as Misc. Application depending upon the applicable Rules of the procedure. The Sessions Court shall immediately issue notice to the State Public Prosecutor or the investigating agency calling upon them to state whether any appeal or special leave petition has been preferred before this Court and what is the outcome of the said petition/appeal;
b. If the State Public Prosecutor or the investigating agency reports that the appeal is pending, as soon as the order of this Court confirming or restoring the death sentence is received by the Sessions Court, again, the disposed of case or miscellaneous applications should be listed on the cause list and notice be issued to the State Public Prosecutor or the investigating agency to ascertain whether any review/curative petitions or mercy petitions are pending. If information is received regarding the pendency of review/curative petitions or mercy petitions, the Sessions Court shall keep on listing the disposed of case after intervals of one month so that it gets the information about the status of the pending petitions. This will enable the Sessions Court to issue a warrant for the execution of the death sentence as soon as all the proceedings culminate;
c. However, before issuing the warrant, notice should be issued to the convict, and the directions issued by the Allahabad High Court in the case of People's Union for Democratic Rights (PUDR) MANU/UP/0242/2015, and as elaborated above, shall be implemented by the Sessions Court;
d. The Sessions Courts shall consider what is held in Paragraph 25 above;
25. The proceedings for issuing a warrant for executing a death sentence Under Sections 413 and 414 of the Code of Criminal Procedure do not require any judicial adjudication. Before issuing the warrant, the Sessions Court must satisfy itself that the order of death sentence has attained finality and the review/curative or mercy petitions, if filed, have been finally rejected. Before issuing a warrant, the Sessions Court has to issue notice to the convict so that even the convict can state whether any other proceedings are pending before the Courts or Constitutional authorities. In a given case, the convict may not be interested in pursuing remedies. The Sessions Court can verify this aspect after issuing a notice to the convict. The Sessions Court, in such a case, must appraise the convict of the remedies available and, if required, provide legal aid to enable the convict to take recourse to such remedies. After the convict has been made aware of the remedies available, reasonable time be granted to the convict to consider, weigh and even consult a member of his family or friend to finally take a decision on adopting remedies as the possibility of thinking logically and rationally may be impeded or hampered because of the situation being faced by the convict. The Sessions Court can issue a warrant only after providing such reasonable time to the convict and after satisfying itself that the convict has taken a conscious decision of not pursuing the available remedies. The reasonable time can be of seven days. The Sessions Court can direct the counselling of the convict if it is not satisfied that the decision is a well-informed, considered and conscious decision. If such a procedure is followed, it enables the convict to take recourse to the available legal remedy. Moreover, if an order of issue of warrant of execution is passed after notice to the convict, it enables the convict to challenge the order of issuing a warrant of execution. But after the convict exhausts all remedies, including filing mercy petitions or after the Sessions Court is satisfied that the convict has taken a conscious decision of not availing the remedies, the execution warrant must be issued without any delay. It is the responsibility of the trial court to take up and conclude the proceedings of issuing a warrant of execution as expeditiously as possible. The trial court must give necessary out of turn priority.
26. After the decisions on mercy petitions, if there is an inordinate and unexplained delay in actual execution for no fault on the part of the convict, there is no reason why the principles set out in paragraph 23 should not apply. The principles will also apply to a case where there is a long and unexplained delay on the part of the Sessions Court in issuing the warrant of execution in accordance with Sections 413 and 414 of Code of Criminal Procedure.
Criminal Appeal Nos. 2831 of 2023 and 2832 of 2023
Decided On: 09.12.2024
State of Maharashtra and Ors. Vs. Pradeep Yashwant Kokade and Ors.
Hon'ble Judges/Coram:
Abhay Shreeniwas Oka, Ahsanuddin Amanullah and Augustine George Masih, JJ.
Author: Abhay Shreeniwas Oka, J.
Citation: MANU/SC/1305/2024.
Print PageCapital punishment, also called the death penalty, is the execution of an offender sentenced to death after conviction by a court of law of a criminal offence. It is the highest penalty awardable to an accused.
The constitutionality of the death penalty in India has been a subject of extensive legal scrutiny and debate, particularly in relation to fundamental rights guaranteed by the Indian Constitution. The Supreme Court of India has delivered several landmark judgments that have shaped the legal landscape regarding capital punishment. Here is an overview of the constitutional framework surrounding the death penalty, along with key Supreme Court judgments.
Print PageIt would be profitable to refer to a judgment of this Court in Mohd. Mannan v. State of Bihar, (2019) 16 SCC 584 in which it was held that before imposing the extreme penalty of death sentence, the Court should satisfy itself that death sentence is imperative, as otherwise the convict would be a threat to the 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 material. The hearing of sentence should be effective and even if the accused remains silent, the Court would be obliged and duty-bound to elicit relevant factors. {Para 9}
JUSTICE L. NAGESWARA RAO JUSTICE B.R. GAVAI JUSTICE B. V. NAGARATHNA
Mofil Khan & Anr. Vs. The State of Jharkhand
Review Petition (Criminal) No.641 of 2015
26th November 2021
Author: L. NAGESWARA RAO, J.
Citation: 2021 ALL SCR (ONLINE) 701
We are convinced that the crime alleged was committed
but not with
the severity and frequency projected. This raises a 'residual
doubt' in our minds, which the Hon'ble Supreme Court has
found to be a state of mind existing somewhere between
'beyond reasonable doubt' and 'absolute certainty'. We
respectfully rely on Ashok Debbarma v. State of Tripura,
(2014) 4 SCC 747.
22.Ashok Debbarma (supra) was interalia considering
the death sentence awarded to the appellant and the concept
of 'residual doubt' was raised as a mitigating factor in the
consideration of whether the case was one of the rarest of
the rare kind. The concept originated in the United States
and the Court observed: “'Residual doubt' is a mitigating
circumstance, sometimes used and urged before the jury in the
United States and, generally, not found favour by the various
courts in the United States"(sic). This is for the reason
that having instructed the Jury to find the accused guilty
beyond reasonable doubt, there cannot be a further
instruction at the time of sentencing that the higher
standard of elimination of 'all doubts' should have been
employed [Franklin v. Lynaugh 487 US 164 (1988)]. Proof
beyond reasonable doubt was expressed in the following words
in Krishnan v. State, (2003) 7 SCC 56:
“[d]oubts would be called reasonable if they are free
from a zest for abstract speculation. Law cannot
afford any favourite other than truth. To constitute
reasonable doubt, it must be free from an
overemotional response. Doubts must be actual and
substantial doubts as to the guilt of the accused
persons arising from the evidence, or from the lack
of it, as opposed to mere vague apprehensions. A
reasonable doubt is not an imaginary, trivial or a
merely possible doubt, but a fair doubt based upon
reason and common sense. It must grow out of the
evidence in the case”. (SCC p. 63, para 23)
Ashok Debbarma spoke thus on these concepts : 'In our
criminal justice system, for recording guilt of the accused,
it is not necessary that the prosecution should prove the
case with absolute or mathematical certainty, but only beyond
reasonable doubt. Criminal courts, while examining whether
any doubt is beyond reasonable doubt, may carry in their
mind, some “residual doubt”, even though the courts are
convinced of the accused persons’ guilt beyond reasonable
doubt." (sic) The Court further elaborated on 'residual
doubt' as per the following extract:
"33. In California v. Brown, 93 L Ed 2d 934: 479 US
538 (1987) and other cases, the US courts took the
view, “residual doubt” is not a fact about the
defendant or the circumstances of the crime, but a
lingering uncertainty about facts, a state of mind
that exists somewhere between “beyond a reasonable
doubt” and “absolute certainty”. The petitioner’s
“residual doubt” claim is that the States must permit
capital sentencing bodies to demand proof of guilt to
“an absolute certainty” before imposing the death
sentence. Nothing in our cases mandates the
imposition of this heightened burden of proof at
capital sentencing.
34. We also, in this country, as already indicated,
expect the prosecution to prove its case beyond a
reasonable doubt, but not with "absolute certainty".
But, in between "reasonable doubt" and "absolute
certainty", a decision-maker's mind may wander,
possibly in a given case he may go for "absolute
certainty" so as to award death sentence, short of
that he may go for "beyond reasonable doubt". Suffice
it to say, so far as the present case is concerned,
we entertained a lingering doubt as to whether the
appellant alone could have executed the crime singlehandedly,
especially when the prosecution itself says
that it was the handiwork of a large group of people.
If that be so, in our view, the crime perpetrated by
a group of people in an extremely brutal, grotesque
and dastardly manner, could not have been thrown upon
the appellant alone without charge-sheeting other
groups of persons numbering around 35. All the
element test as well as the residual doubt test, in a
given case, may favour the accused, as a mitigating
factor."
23. We are quite conscious of the fact that the
concept of 'residual doubt' was reckoned by the Hon'ble Supreme
Court in the aforesaid decision as a mitigating factor to avoid
death sentence. We would respectfully adopt the said concept,
even in the present case of rape as a mitigating factor in
sentencing. As we observed, there is evidence of sexual
molestation; but not with the severity and frequency as spoken
of by the prosecutrix. The family also has a different version
and there is the compelling factor of the prosecutrix having
informed the family after the very first instance and the family
having shifted her residence. These aspects give rise to the
residual doubts as spoken of by the Hon'ble Supreme Court and
hence we are compelled to modify the sentence. We think that the
sentence can be modified to 10 years under Section 377 of the
I.P.C. while upholding the fine imposed by the trial court with
a default sentence as ordered in the impugned judgment. The
conviction and sentence under Section 376 of I.P.C. are
reversed. The Criminal Appeal stands partly allowed.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A NO. 1208 OF 2016
NARAYANAN KUNJAPPAN Vs STATE OF KERALA
PRESENT
MR.JUSTICE K.VINOD CHANDRAN
&
MR.JUSTICE ZIYAD RAHMAN A.A.
Dated, this the 8th September 2021
Author: Vinod Chandran, J.
Print Page