RAJENDRA PRALHADRAO WASNIK v. STATE OF MAHARASHTRA

2.2 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. It is not being suggested that if there is no DNA profiling, the prosecution case cannot be proved but certainly 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. [Para 54][615-G-H; 616-A] A B C D E F G H RAJENDRA PRALHADRAO WASNIK v. STATE OF MAHARASHTRA 589

2.3 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, it would be dangerous, on the facts of this case, to uphold the sentence of death on the appellant. [Para 57][616-F-H] Prior history of the convict or criminal antecedents

3.1 The history of the convict, including recidivism cannot, by itself, be a ground for awarding the death sentence. 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. 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 quantum of sentence, except in specified circumstances. [Paras 58, 59][617-A-D] the purposes of determining

3.2 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. In the present case 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 far more appropriate for the Sessions Judge to have A B C D E F G H 590 SUPREME COURT REPORTS [2018] 14 S.C.R. waited, if he thought it necessary to take the pendency of these cases into consideration, for the trials to be concluded. [Paras 73, 74][623-B-D]

3.3 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 so that the possibility of awarding life sentence is open to the Trial Judge as against the death sentence. 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. While the crime is important, the criminal is equally important insofar as the sentencing process is concerned. 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 present case. It is informed whether the conviction orders passed against the appellant have been set aside or not. [Paras 75, 77][623-F-H; 624-C; 625-B] Conclusion

#4. Insofar as the present petition is concerned, 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, one also cannot overlook subsequent developments with regard to the two (actually three) similar cases against the appellant. For all these reasons, it would be more appropriate looking to the A B C D E F G H RAJENDRA PRALHADRAO WASNIK v. STATE OF MAHARASHTRA 591 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 it is directed that he should not be released from custody for the rest of his normal life. [Paras 79, 80][625-D-H; 626-A-B] Bachan Singh v. State of Punjab (1980) 2 SCC 684 – followed.