VIKAS CHAUDHARY v. THE STATE OF DELHI

to facilitate the court to carry out the exercise of balancing the aggravating factors with the mitigating circumstances – the test propounded in Bachan Singh and examined in many cases; the recent trend being that the reformative element acquires equal attention. The obligation to carry out this balancing interest is upon the courts imposing the sentence in the first instance, i.e., the trial courts; the prosecution (per Bachan Singh) is also under an obligation to show that the mitigating circumstances are absent especially that there are no chances of reformation of the accused. Since this exercise is mandated whenever a heinous capital crime is committed, at the stage of conviction, the court has no idea that the prosecution may urge for capital sentence. When that stage occurs, and the prosecution seeks a capital sentence, the court has to carry out the exercise of conducting a review of aggravating circumstances (which are already on the record, being factors that lead to the conviction of the accused) and balancing the mitigating circumstances (which are not matters of the record and have to be adduced by the prosecution and the accused). [Para 18][763-G-H; 764-A-D]

1.3. The imperative to conduct evaluation of mitigating circumstances at the trial stage, “to avoid slipping into a retributive response to the brutality of the crime” which this court noticed was frequently occurring in several cases, was underlined, and it was categorically held that the court had to elicit information from the state and the accused. The prosecution also is mandated to produce before the Sessions Court, material disclosing psychiatric and psychological evaluation of the accused, which is to preferably be collected beforehand. At the stage when the trial court is informed that the prosecution intends to press for imposition of capital sentence, the evaluation should be insisted upon; the state is under a duty to present all objective materials, as mentioned in Manoj’s case, having regard to the decision in Bachan Singh’s case and importantly, the fact that it is in a position to actually gather the materials. Its task is to present the facts- relating to the accused, which are favourable and unfavourable, for the court to impose a just sentence. [Para 20][767-G-H; 768- A-B]

1.4. Since the judgment in Sriharan’s case reserves the power to impose special or fixed term sentences (which may be H VIKAS CHAUDHARY v. THE STATE OF DELHI 751 longer than the minimum specified in Section 433A CrPC-i.e., may extend to considerably long periods, such as 30 years), with only the high courts and this court, it is imperative that this exercise is carried out even in cases where the accused might eventually not be imposed the death sentence. To put it simply - although the trial courts are not empowered to impose such special sentences, yet at the stage when they arrive at findings of guilt in the case of a heinous offence, what would be the nature of the sentence imposed eventually, is unknown; therefore, the prosecution would have to inform the court, and present relevant materials, in case the death sentence is proposed. In that event, if ultimately death sentence is not imposed, it is open to the state (or the aggrieved party, under Section 372 CrPC) to appeal against the trial court judgment on the point of sentence; at that stage the evaluation before the High Court would be nuanced, and informed with full materials, about the convict, which otherwise it would not have the benefit of.

Further, if considerable time has elapsed since the trial stage at which this exercise was undertaken, the appellate court should direct that a fresh attempt be made, to take into account the contemporaneous progress, if any, made by the convict. Wherever the prosecution is of the opinion that the crime an accused is convicted for, is so grave that death sentence is warranted, it should carry out the exercise of placing the materials, in terms of Manoj’s case. In case this results in imposition of death sentence, at the stage of confirmation, the High Court would have the benefit of independent evaluation of these materials. On the other hand, if death sentence is not imposed, then, the High Court may still be in a position to evaluate, if the sentence is adequate, and wherever appropriate and just, impose a special or fixed term sentence, in the course of an appeal by the State or by the complainant/ informant.

Given the imperative need for such material to form a part of the court’s consideration, it has to be emphasized that in case the trial court has failed to carry out such exercise (for whatever reason), the High Court has to call for such material while considering an appeal filed by the State or complainant for enhancement of sentence (whether resulting in imposition of capital punishment, or a term sentence). [Paras 21, 22][768-C- H; 769-A-B] A B C D E F G H 752 SUPREME COURT REPORTS [2023] 4 S.C.R.

1.5. There was limited material regarding the mitigating circumstances of the appellants; existing jail reports and probation officer reports, were also outdated. So, this court directed the preparation and submission of three reports, to facilitate fairer consideration of the question of sentence. These were: a report of the probation officer, report on nature of work done while in jail (by the jail administration), and a psychological and psychiatric evaluation report (by Director of VIMHANS); these are on record, and form part of this court’s consideration, to ascertain the individualised sentences appropriate in the present case. The Counsel placed on record, written submissions outlining the mitigating factors and justification for a modification, on the question of sentence. [Para 24][769-E-F; 770-A-B]

1.6. The sole motive for this crime seems to have been greed. Undoubtedly, there was premeditation in the commission of the crime. These are the aggravating circumstances. [Para 27][771-D-E]

1.7. Both the appellants in the instant case, share some commonalities: they were of young age at the time of offence, hail from educated backgrounds, and they continue to enjoy the love and affection of their families, each of which have a good standing and strong ties within the communities they live in. While the material relating to their lives and social conditions pre-conviction do not offer an explanation as to the cause for commission of offence, it can certainly be said that the material available regarding their conduct post-conviction, remains encouraging. They have applied themselves during the time of incarceration and used their time to contribute meaningfull-for which they have each received commendations. Their psychological and psychiatric evaluations were concluded to be normal, without cause for concern. A strong case is made out in support of the appellants’ probability of reform (as already evidenced by their jail conduct), and reintegration into society. The State, too, has not indicated any material to the contrary, regarding this aspect. [Para 28][771-E-H]

1.8. In view of the totality of the facts and circumstances, it would be appropriate to modify the sentence awarded to both A B C D E F G H VIKAS CHAUDHARY v. THE STATE OF DELHI 753 appellants to a minimum term of 20 years actual imprisonment. [Para 29][771-H; 772-A] A Amit v. State of Maharashtra (2003) 8 SCC 93 : [2003] Supp. 2 SCR 285; Laxman Naskar v. West Bengal (2000) 7 SCC 626 : [2000] Supp. 3 SCR 62; Rajendra Prahladrao Wasnik v. State of Maharashtra (2019) 12 SCC 460 : [2018] 14 SCR 585; Swamy Shraddananda v. State of Karnataka (2008) 13 SCC 767 : [2008] 11 SCR 93; Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498 : [2009] 9 SCR 90; State of Haryana v. Jagdish (2010) 4 SCC 216 : [2010] 3 SCR 716; Ramesh v. State of Rajasthan (2011) 3 SCC 685 : [2011] 4 SCR 585; Birju v. State of MP (2014) 3 SCC 421 : [2014] 1 SCR 1047; Shankar Kisanrao Khade v. State of Maharashtra (2013) 5 SCC 546 : [2013] 6 SCR 949; Anil @ Anthony Arikswamy Joseph v.

State of Maharashtra (2014) 4 SCC 69 : [2014] 3 SCR 34; Raju Jagdish Paswan v. State of Maharashtra (2019) 16 SCC 380; Satish @ Sabbe v. State of UP 2020 SCC OnLine SC 791; Mohd Firoz v. State of MP (2022) 7 SCC 433; Arvind Singh v. State of Maharashtra (2021) 11 SCC 1; Gauri Shankar v. State of Punjab (2021) 3 SCC 380; Bachan Singh v. Union of India (1980) 2 SCC 684 : [1983] 1 SCR 145; Machhi Singh v. State of Punjab (1983) 3 SCC 470 : [1983] 3 SCR 413; Gopal Vinayak Godse v. State of Maharashtra [1961] 3 SCR 440; Dalbir Singh v. State of Punjab (1979) 3 SCC 745 : [1979] 3 SCR 1059; Subash Chander v. Krishan Lal (2001) 4 SCC 458 : [2001] 2 SCR 864; Shri Bhagwan v. State of Rajasthan (2001) 6 SCC 296 : [2001] 3 SCR 656; State of Madhya Pradesh v. Ratan Singh (1976) 3 SCC 470 : [1976] Supp. 1 SCR 552; Manoj v. State of Madhya Pradesh (2023) 2 SCC 353: [2022] 9 SCR 452; Chhannu Lal Verma v. State of Chhattisgarh (2019) 12 SCC 438 : [2018] 14 SCR 355 – referred to.

Case Law Reference [2003] Supp. 2 SCR 285 referred to Para 7 B C D E F G H 754 SUPREME COURT REPORTS [2023] 4 S.C.R. A [2000] Supp. 3 SCR 62 [2018] 14 SCR 585 [2008] 11 SCR 93 [2009] 9 SCR 90 B [2010] 3 SCR 716 [2011] 4 SCR 585 [2014] 1 SCR 1047 [2013] 6 SCR 949 C [2014] 3 SCR 34 (2019) 16 SCC 380 (2022) 7 SCC 433 (2021) 11 SCC 1 D (2021) 3 SCC 380 [1983] 1 SCR 145 [1983] 3 SCR 413 [1961] 3 SCR 440 E [1979] 3 SCR 1059 [2001] 2 SCR 864 [2001] 3 SCR 656 [1976] Supp. 1 SCR 552 F [2022] 9 SCR 452 [2018] 14 SCR 355 [2015] 14 SCR 613 referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to relied on Para 7 Para 8 Para 8 Para 8 Para 8 Para 8 Para 8 Para 8 Para 8 Para 8 Para 8 Para 9 Para 11 Para 13 Para 13 Para 15 Para 15 Para 15 Para 15 Para 15 Para 19 Para 19 Para 21 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal G No.2276 of 2022.

From the Judgment and Order dated 31.10.2018 of the High Court of Delhi at New Delhi in CRLA No.319 of 2018. With H Criminal Appeal No.2277 of 2022. VIKAS CHAUDHARY v. THE STATE OF DELHI 755 Vivek Sood, Ms. Meenakshi Arora, Sr. Advs., Gopal Jha, Akash Godhvani, Ms. Tanvi Atree, Anuj Chauhan, Anand, Sanket, Krishan Kumar, Mohit D. Ram, Ms. Sunita Arora, Monisha Handa, Rajul Shrivastav, Shivam Dedi, Ms. Gargi Singh, Anubhav Sharma, Advs. for the Appellant. Chirag M. Shroff, Shailendra P. Singh, Advs. for the Respondent. The Judgment of the Court was delivered by S. RAVINDRA BHAT, J.

The limited question on which this Court issued notice1 was to consider the correctness of the sentence imposed on the accused/ appellants. The appellants’ grievance is with the imposition of a fixed term sentence of 30 years, without remission, by the trial court, which was affirmed by the impugned judgment2 passed by the Delhi High Court.

The facts of the case briefly are that the deceased (aged 18-20 years), had been kidnapped for ransom on 18.01.2003. On the same day itself, he was killed by strangulation, and the body was burnt, to eliminate evidence. The deceased’s father (complainant) filed a ‘missing person report’ with the police on 18.01.2003 itself, after which he received six ransom calls (on 19.01.2003, 20.01.2003, 01.02.2003, 02.02.2003, 10.03.2003, 11.03.2003) from different people, seeking money in exchange for information about his son’s whereabouts, and his safety. By tracking of call records, a link was established first with A-1, who disclosed involvement of A-2 and A-3. A gold chain belonging to the deceased, and a motorcycle on which the deceased was last seen, were recovered at the behest of A-1; the deceased’s wristwatch, and a black muffler used to strangle him, were recovered from A-2. A-1’s disclosure also led to recovery of the car used to abduct, and in which the deceased had been strangulated. Evidence collected against them included voice samples to compare ransom call recordings, and identification by PW-7, PW-2, and others as to the deceased last being seen with them. On 09.05.2003, the three accused persons disclosed where the dead body had been dumped, but the same could not be recovered. Upon investigation, it was found that another police station, in which jurisdiction 1 Order dated 09.05.2019, in SLP (Crl) D. No. 5964/2019, with Special Leave to Appeal (Crl) No. 3129/2019. 2 Order dated 31.10.2018 passed by the Delhi High Court in Crl. Appeal No. 319/2018. A B C D E F G H 756 SUPREME COURT REPORTS [2023] 4 S.C.R. A B C D E F G the nala fell, had recovered a half-burned dead body on 19.01.2003 itself (i.e., one day after abduction). This was identified by the father, to be that of the deceased. 41 prosecution witnesses were examined over the course of 11 years, and 8 defence witnesses.

The trial court3 convicted the three accused persons for the commission of offence under Sections 302, 364A, 201, read with Section 120B IPC. A-1 and A-2 (present appellants) were also convicted under Section 411, with A-1 additionally being convicted for offences punishable under Sections 420, 468 and 471 IPC. They were sentenced to life imprisonment for the remainder of their natural life, and an additional condition was imposed on A-1 and A-2 - that they would not be entitled to any parole, remission, or furlough, before completing 30 years of imprisonment. They were also sentenced to each pay 2,10,000 as fine, and 4,00,000 as compensation to the victim’s family..

The High Court, by its common impugned judgment, on an appreciation of the facts at hand, acquitted A-3 Joginder @ Mintu of all charges; and acquitted the present appellants only for offence under Section 411, but affirmed their conviction for other offences, as well as the corresponding sentence imposed by the trial court. Aggrieved by the impugned judgment, A-1 and A-2 have approached this court, challenging both the conviction and sentence; this court issued notice on the limited question of sentence. Appellants’ contentions

Ms. Meenakshi Arora, learned senior counsel, appearing for the appellants, placed strong emphasis on this court’s decision in Union of India v. Sriharan @ Murugan &Ors.4, which categorically held that it was outside the jurisdiction of the trial court, to provide a specific term punishment or till the end of ordinary life, as an alternative to the death penalty. It was urged that this aspect, however, was overlooked by the High Court – which was reason enough to set aside the erroneous decision.

It was urged that the High Court had, in its impugned judgment, while dismissing the appeal on conviction, also rejected the arguments made on sentencing, without proper consideration. Reliance was placed on Section 386(b)(ii) and (iii) of the CrPC to argue that adjudication and 3 Sessions Case No. 130/2014 - Orders dated 13.11.2017 (conviction) and 23.12.2017 (sentence) 4 [2015] 14 SCR 613: (2016) 7 SCC 1 (hereafter ‘Sriharan’) H VIKAS CHAUDHARY v. THE STATE OF DELHI [S. RAVINDRA BHAT, J.] 757 examination of the order on sentence was still necessary, even when order of conviction has been upheld or modified under Section 386(b)(i); the appellate court had to specifically hear the accused on the quantum and nature of sentence imposed. While doing so, it is imperative to call for the report by the Officer under the Probation of Offenders Act, and/ or psychological assessment report, to adjudicate the same.

Ms. Arora submitted that weight had to be given to mitigating circumstances, to guide sentencing discretion; relevant factors being – age at which the offence was committed, likelihood of convict reforming in jail, etc. Reliance was placed on this court’s decisions in Amit v. State of Maharashtra5 and Laxman Naskar v. West Bengal6. Counsel submitted that there was strong evidence supporting good and normal social behaviour, reformation, and possibility of reintegration into society, as per the probation officer’s report, jail conduct report, and psychologist’s report – all of which were prepared in compliance of this court’s orders. That the appellants had no criminal antecedents was also a factor in their favour. It was pointed out that the appellant Vikas Chaudhary, was below 18 years of age at the time of kidnapping and murder but had attained majority during the alleged ransom calls. Therefore, the benefit of juvenile was denied to him, and the conviction was based solely on circumstantial evidence.

Counsel also relied on judgments of this court, which elaborated on sentencing policy in the case of imposing death penalty. In Rajendra Prahladrao Wasnik v. State of Maharashtra7, a three-judge bench of this court emphasised the importance of determining whether the accused, notwithstanding their crime, can be reformed, rehabilitated, and reintegrated, and that the activity of obtaining this information is essential, and must be undertaken. It was argued that the mitigating circumstances, and report of the probation officer were neither considered by the trial court, nor High Court. Counsel stressed on the importance of the theory of reformation through punishment and submitted that the special category of sentence for serious crimes where death sentence is substituted with life imprisonment for a fixed number of years (as evolved in Swamy Shraddananda (2) v. State of Karnataka8, and upheld in