MOHINDER SINGH v. STATE OF PUNJAB

Judgment

[for himself and Kalifulla, J.] E HELD: 1. In terms of Section 366(1) of CrPC, when the Court of Session passes a sentence of death, the F proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court. The scope and application of the above section is only in cases where a sentence of death has been passed by the Court of Session. The Court of G Session should refer the proceedings to the High Court and the High Court can only deal with them as a Court of reference. It is the practice of the High Court to be satisfied on the facts as well as the law of the case, that the conviction is right, before it proceeds to confirm that H 92 SUPREME COURT REPORTS [2013) 3 S.C.R. A sentence. In other words, the High Court has to come to its own independent conclusion as to the guilt or innocence of the accused, independently of the opinion of the Judge. In a reference for confirmation of death sentence, the High Court must examine the entire B evidence for itself independent of the Session Court's views. While confirming the capital sentence, the High Court is under an obligation to itself consider what sentence should be imposed and not be content with the trial Court's decision on the point unless some reason is c shown for reducing the same. Where, in addition to an appeal filed by an accused sentenced to death, the High Court has to dispose of the reference for confirmation of death sentence under Section 366 of the Code, the High Court, while dealing with reference, should consider the proceedings in all its aspects and come to an independent conclusion ori the material on record apart from the views expressed by the Sessions Judge. The confirmation of death sentence cannot be based only on facts and the precedents and or aggravating circumstances of any other case. [Para 5] [101-G-H; 102- D E A-E]

2.1. In the instant case, the accused-appellant had earlier committed rape on his deceased daughter-'G' in 1999 and in that case, his deceased wife was a witness F wherein the accused was convicted under Sections 376 and 506 IPC and sentenced to RI for 12 years. It is also subsequently taken on record that his deceased wife sent the accused out of his house and as a consequence, he had to live separately in a rented house with no means G of livelihood. It was thirst for retaliation, which became the motivating factor in this case. The case of the accused does not come within the category of "rarest of rare" case to award death penalty. [Para 15] [106-G-H; 107-A-B] H MOHINDER SINGH v. STATE OF PUNJAB 93

2.2. The doctrine of "rarest of rare" confines two A

aspects and when both the aspects are satisfied only then the death penalty can be imposed. Firstly, the case must clearly fall within the ambit of "rarest of rare" and secondly, when the alternative option is unquestionably foreclosed. Bachan Singh case suggested selection of B death punishment as the penalty of last resort when, alternative punishment of life imprisonment will be futile and serves no purpose. [Para 16] [107-C-D]

2.3. In life sentence, ttiere is a possibility of achieving C deterrence, rehabilitation and retribution in different degrees. But the same does not hold true for the death penalty. It is unique· in its absolute rejection of the potential of convict to rehabilitate and reform. It ·extinguishes life and thereby terminates the being, therefore, puts an end anything to do with the life. This D is the big difference between two punishments. Thus, before imposing death penalty, it is imperative to consider the same. [Para 17] [107-E-F]

2.4. "Rarest of rare" dictum hints at this difference E between death punishment and the alternative punishment of life imprisonment. Life imprisonment can be said to be completely futile, only when the sentencing aim of reformation can be said to be unachievable. Therefore, for satisfying the second aspect to the "rarest F of rare" doctrine, the court will have to provide clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme. [Para 18] [107-G- H; 108-A]

2.5. Treating the instant case on the touchstone of the G guidelines laid down in Bachan Singh, Machhi Singh and other decisions and balancing the aggravating and mitigating circumstances emerging from the evidence on record, the instant case cannot appropriately be called H 94 SUPREME COURT REPORTS [2013] 3 S.C.R. A the "rarest of rare" case warranting death penalty. Also it is difficult to hold that the appellant is such a dangerous person that sparing his life will endanger the community. Also it cannot be said that the circumsta!'lces of the crime are such that there is no other alternative but to impose B death sentence even after according maximum weightage to the mitigating circumstances in favour of the accused. This case is the one in which humanist approach must be taken in the matter of awarding punishment. [Para 19] [108-B-D] c

2.6. It is well settled law that awarding of life sentence is a rule and death is an exception. Life imprisonment cannot be equivalent to imprisonment for 14 years or 20 years or even 30 years, rather it always means the whole natural life. This Court has always clarified that the D punishment of a fixed term of imprisonment so awarded would be subject to any order passed in exercise of clemency powers of the President of India or the Governor of the State, as the case may be. Pardons, reprieves and remissions under Article 72 or Article 161 E of the Constitution of India are granted in exercise of prerogative power. There is no scope of judicial review of such orders except on very limited grounds such as the non-application of mind while passing the order, non consideration of relevant material, or if the order suffers from arbitrariness. The power to grant pardons and to commute sentences is coupled with a duty to exercise the same fairly, reasonably and in terms of restrictions imposed in several provisions of the Code. A convict undergoing life imprisonment is expected to remain in G custody till the end of his life, subject to any remission granted by the appropriate Government under Section 432 of the Code which in turn is subject to the procedural checks mentioned in the said provision and further substantive check in Section 433-A of the Code. [Paras F H 20, 21 and 22] [108-E-H; 109-A-C-H; 110-A-B] MOHINDER SINGH v. STATE OF PUNJAB 95

2.7. One significant factor in this case, which we A should not loose sight of is that he did not harm his other daughter, namely, PW-2 even though he had a good chance for the same. Further, it was highlighted that he being a poor man and unable to earn his livelihood since he was driven out of his house by his deceased wife. It B is also his claim that if he was allowed to live in the house, he could easily meet both his ends and means, as the money which he was spending by paying rent would have been saved. It is his further grievance that his deceased wife was adamant that he should live c outside and should not lead a happy married life and that was the reason that their relations were strained. This also shows that the accused was feeling frustrated because of the attitude of his wife and children. Moreover, the probability of the offender's rehabilitation and reformation is not foreclosed in this case. Likewise, it is seen from the affidavit filed by the sister of the accused that his family has not totally renounced as yet. Hence, there is a possibility for reformation in the present appellant. For the reasons aforementioned, this is not a E case where death penalty should be imposed .. The appellant-accused, therefore, instead of being awarded death ·penalty, is sentenced to undergo rigorous imprisonment for life, meaning thereby, the end of his life but subject to any remission granted by the appropriate Government satisfying the conditions prescribed in Section 432 CrPC further substantiate check under Section 433-A CrPC by passing appropriate speaking orders. [Paras 23, 24] [110-B-G; 111-A-B] F 0 Bachan Singh vs. State of Punjab (1980) 2 SCC 684 G and Machhi Singh and Ors. vs. State of Punjab (1983) 3 SCC 470: 1983 (3) SCR 413 - relied on. State of Uttar Pradesh vs. Sanjay Kumar (2012) 8 SCC 537; Sangeet and Anr. vs. State of Haryana 2012 (11) Scale H 96 SUPREME COURT REPORTS [2013] 3 S.C.R. A 140 and Panchhi & Ors. vs. State of U.P. (1998) 7 SCC 177: 1998 (1) Suppl. SCR 40 - referred to. Case Law Reference: 1998 (1) Suppl. SCR 40 (1980) 2 sec 684 1983 (3) SCR 413 (2012) a sec 537 referred to Para 11 relied on relied on Para 12 Para 13 referred to Para 21 2012 (11) Scale 140 referred to Para 22 B c Per Kalifulla, J. [Supplementing]

1.1. The conduct of the appellant, if analyzed, based on the previous crimes committed by him, it is found that D in the year 1999 as found by the courts below the appellant committed rape on his deceased daughter 'G' when she was minor and that too after beating her. To which beastly action, unfortunately the other deceased (viz) his wife, was an eye-witness. The conduct of the E appellant in the commission of the said offence was not only bordering on immorality of the highest order but would be extremely difficult for anyone to lightly brush aside such a conduct by stating that either it was committed in a fit of anger or rage or such other similar F situation. When the father himself happens to be the assailant in the commission of such beastly crime, one can visualize the pathetic situation in which the girl would have been placed and that too when such a shameless act was committed in the presence of her own mother. G When the daughter and the mother were able to get their grievances redressed by getting the appellant convicted for the said offence of rape one would have in the normal course expected the appellant to have displayed a conduct of remorse. Unfortunately, the subsequent H conduct of the appellant when he was on parole MOHINDER SINGH v. STATE OF PUNJAB 97 disclosed that he approached the victims in a far more A vengeful manner by assaulting the hapless victims which resulted in filing of an FIR once in the year 2005 and subsequently when he was on parole in the year 2006. The monstrous mindset of the appellant appears to have not subsided by mere assault on the victims who B ultimately displayed his extreme inhuman behaviour by eliminating his daughter and wife in such a gruesome manner in which. he committed the murder by inflicting the injuries on the vital parts of the body of the deceased and that too with all vengeance at his command in order c to ensure that they met with instantaneous death. The nature of injuries as described in the postmortem report speaks for itself as to the vengeance with which the appellant attacked the hapless victims. He was not even prepared to spare his younger daughter (viz) PW-2 who, 0 however, escaped the wrath of the appellant by bolting herself inside a room after she witnessed the grotesque manner in which the appellant took away the life of his wife and daughter. [Para 9) [116-F-H; 117-A-H] 1

1.2. However, the case still does not fall within the E category of 'rarest of rare case' though it calls for a stringent punishment. Therefore, the sentence is modified from one of death penalty to that of life imprisonment till the end of his life. The appellant deserves to be sentenced to undergo rigorous imprisonment for life meaning F thereby the end of his life subject, however, to remission granted by the appropriate Government satisfying the conditions prescribed in Section 432 of the Code of Criminal Procedure and further substantiate check under Section 433A of the Code by passing appropriate G speaking orders. [Paras 10, 11) [118-B-C, F-G]