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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.1899-1900 OF 2011
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ ABU MUJAHID … APPELLANT
VERSUS
STATE OF MAHARASHTRA … RESPONDENT
WITH
CRIMINAL APPEAL NO.1961 OF 2011
STATE OF MAHARASHTRA … APPELLANT
VERSUS
FAHIM HARSHAD MOHAMMAD YUSUF
ANSARI & ANOTHER … RESPONDENTS
AND
TRANSFER PETITION (CRIMINAL) NO.30 OF 2012
RADHAKANT YADAV … PETITIONER
VERSUS
UNION OF INDIA & OTHERS … RESPONDENTS
IN THIS LENGTHY JUDGEMENT, HON’BLE SC REITERATED THE PRINCIPLES/GUIDELINES FOR THE IMPOSITION OF DEATH SENTENCE AS FOLLOWS:-
565. Coming back to the legalese of the matter:
The Constitutional validity of death penalty was tested in Bachan Singh
v. State of Punjab[105] and in that case a Constitution Bench of this
Court, while upholding the Constitutional validity of death sentence,
observed that the death penalty may be invoked only in the rarest of rare
cases. This Court stated that:
“209. ….For persons convicted of murder life imprisonment is the rule
and death sentence an exception. 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.”
(Emphasis Supplied)
566. The Bachan Singh principle of the ‘rarest of rare cases’ came up for
consideration and elaboration in Machhi Singh v. State of Punjab[106]. It
was a case of extraordinary brutality (from normal standards but nothing
compared to this case!). On account of a family feud Machhi Singh, the
main accused in the case along with eleven (11) accomplices, in the course
of a single night, conducted raids on a number of villages killing
seventeen (17) people, men, women and children, for no reason other than
they were related to one Amar Singh and his sister Piyaro Bai. The death
sentence awarded to Machhi Singh and two other accused by the trial court
and affirmed by the High Court was also confirmed by this Court.
567. In Machhi Singh this Court observed that though the “community”
revered and protected life because “the very humanistic edifice is
constructed on the foundation of reverence for life principle” it may yet
withdraw the protection and demand death penalty. The kind of cases in
which protection to life may be withdrawn and there may be the demand for
death penalty were then enumerated in the following paragraphs:
“32. … It may do so “in rarest of rare cases” when its collective
conscience is so shocked that it will expect the holders of the
judicial power centre to inflict death penalty irrespective of their
personal opinion as regards desirability or otherwise of retaining
death penalty. The community may entertain such a sentiment when the
crime is viewed from the platform of the motive for, or the manner of
commission of the crime, or the anti-social or abhorrent nature of the
crime, such as for instance:
1. Manner of commission of murder
33. When the murder is committed in an extremely brutal,
grotesque, diabolical, revolting or dastardly manner so as to arouse
intense and extreme indignation of the community. For instance,
(i) when the house of the victim is set aflame with the end in view
to roast him alive in the house.
(ii) when the victim is subjected to inhuman acts of torture or
cruelty in order to bring about his or her death.
(iii) when the body of the victim is cut into pieces or his body
is dismembered in a fiendish manner.
II. Motive for commission of murder
34. When the murder is committed for a motive which evinces total
depravity and meanness. For instance when (a) a hired assassin commits
murder for the sake of money or reward (b) a cold-blooded 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-à-vis whom the murderer is in a dominating position
or in a position of trust, or (c) a murder is committed in the course
for betrayal of the motherland.
III. Anti-social or socially abhorrent nature of the crime
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 terrorise such persons and frighten them
into fleeing from a place or in 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 person rendered helpless by old age or
infirmity (c) when the victim is a person vis-à-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.”
568. The above principles are generally regarded by this Court as the
broad guidelines for imposition of death sentence and have been followed by
the Court in many subsequent decisions.
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