101
201. …As we read Sections 354(3) and 235(2) and other related provisions of
the Code of 1973, it is quite clear to us that for making the choice of punishment
or for ascertaining the existence or absence of “special reasons” in that context,
the court must pay due regard both to the crime and the criminal. What is the
relative weight to be given to the aggravating and mitigating factors, depends on
the facts and circumstances of the particular case. More often than not, these two
aspects are so intertwined that it is difficult to give a separate treatment to each of
them. This is so because “style is the man”. In many cases, the extremely cruel or
beastly manner of the commission of murder is itself a demonstrated index of the
depraved character of the perpetrator. That is why, it is not desirable to consider
the circumstances of the crime and the circumstances of the criminal in two
separate watertight compartments. In a sense, to kill is to be cruel and therefore
all murders are cruel. But such cruelty may vary in its degree of culpability. And it
is only when the culpability assumes the proportion of extreme depravity that
“special reasons” can legitimately be said to exist.”
The court also accepted a list of helpful factors of aggravating and mitigating
circumstances.91 However, cautioning the court from treating them to be
exhaustive, the court further clarified that they were merely indicative and that
the mitigating circumstances had to be read in a “liberal and expansive” manner,
accounting for the dignity of human life:
“209. There are numerous other circumstances justifying the passing of the lighter
sentence; as there are countervailing circumstances of aggravation. “We cannot
obviously feed into a judicial computer all such situations since they are
astrological imponderables in an imperfect and undulating society.” Nonetheless, it
cannot be over-emphasised that the scope and concept of mitigating factors in the
area of death penalty must receive a liberal and expansive construction by the
courts in accord with the sentencing policy writ large in Section 354(3). Judges
should never be bloodthirsty. Hanging of murderers has never been too good for
them. Facts and Figures, albeit incomplete, furnished by the Union of India, show
that in the past, courts have inflicted the extreme penalty with extreme infrequency
— a fact which attests to the caution and compassion which they have always
brought to bear on the exercise of their sentencing discretion in so grave a matter.
It is, therefore, imperative to voice the concern that courts, aided by the broad
illustrative guide-lines indicated by us, will discharge the onerous function with
evermore scrupulous care and humane concern, directed along the highroad of
legislative policy outlined in Section 354(3) viz. that 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.”
188. In Macchi Singh, this court extrapolated the principles from Bachhan
Singh, and merit repetition:
91 Bachan Singh (para 202 and 206).
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