Allauddin Mian v State of Bihar (1989)

Three reasons, and each is separately examinable.

1. It is the leading authority on section 235(2) — the hearing of the accused on the question of sentence. It holds that the provision is mandatory, that treating it as a formality vitiates the sentencing decision, and that as a general rule trial courts should adjourn after conviction before passing sentence.
2. It supplies the rule of last resort in capital sentencing: if the Judge cannot explain with reasonable accuracy the basis for choosing the higher of the two sentences, his choice should fall on the lower.
3. It shows the Machhi Singh categories being applied and not producing death, which is the best available demonstration that the categories are illustrative and not a code.

On the afternoon of 25 July 1985, at about 4.30 p.m., PW 6 Baharan Mian was sitting at the entrance of his house when six accused came from the west armed with deadly weapons: accused 1 and 2 carrying farsas, accused 3 and 4 armed with spears, and accused 5 and 6 with sticks.

Seeing them, PW 6 got up and went into the verandah of his house. Accused 3 began to untie the buffalo tethered in front of the house while the others showered abuses on PW 6, to which he objected. Accused 4 and 6 then shouted to kill him. Accused 1 and 2 moved menacingly towards him.

The two infants Sahana Khatoon and Chand Tara were then playing in the dalan outside the western room. Seeing accused 1 and 2 approaching him fully armed, PW 6 apprehended trouble and ran into the adjoining room to arm himself with a spear; his wife PW 5, who was in the room, prevented him from going out for fear that he would be killed.

Realising that PW 6 had gone into the inner room and was being prevented from coming out, accused 1 gave farsa blows on the head, abdomen and left thumb of Sahana Khatoon, causing serious injuries, and accused 2 gave one farsa blow on the head of the infant Chand Tara. Neighbours intervened, pacified the assailants and sent them away. The injured girls were taken to the city dispensary, where the First Information Report of PW 6 was recorded at about 6.45 p.m. Sahana Khatoon died shortly after admission; Chand Tara succumbed to her injuries on 23 August 1985.

The trial court convicted accused 1 and 2 of murder and sentenced them to death; the High Court maintained the convictions and upheld the sentences on the ground that the two had shown extreme mental depravity in causing serious fatal injuries to helpless girls aged seven or eight years and seven months, so that the murder could be characterised as one of the rarest of rare cases.

1. Whether the death penalty violates Articles 14, 19 and 21, and whether Bachan Singh requires reconsideration.
2. What procedure a court must follow in choosing between death and life imprisonment.
3. Whether, on these facts, the case fell within the rarest of rare category.

1. The constitutional challenge fails

Counsel argued, on what was described as the humanitarian ideology or rehabilitarian philosophy, that any law permitting the supreme right to life to be sacrificed for the failure of the State to establish a social order in which such crimes are not committed must be struck down as offending Articles 14, 19 and 21.

The Court rejected it. The legislature, while rejecting the reformatory theorists' demand for abolition, thought in its wisdom that the special reasons clause should be a sufficient safeguard against arbitrary imposition of the extreme penalty. The very existence of that clause implies that the Court can in fit cases impose the extreme penalty, which negatives the contention that there can never be a valid reason to visit an offender with death, no matter how cruel, gruesome or shocking the crime. And section 354(3) is consistent with Article 21, which enjoins that the personal liberty or life of an individual shall not be taken except according to procedure established by law.

The submission that Bachan Singh needs reconsideration because the majority did not have the benefit of Bhagwati J's contrary views was rejected: the reasons which prevailed with Bhagwati J could not have been unknown to the Judges constituting the majority.

The Court accepted that offenders of some particularly grossly brutal crimes which send tremors in the community have to be firmly dealt with to protect the community, and that where the incidence of a certain crime is rapidly growing and assuming menacing proportions — for example acid pouring or bride burning — it may be necessary for the courts to award exemplary punishments to protect the community and deter others.

2. Section 235(2) is mandatory

Section 235(2) provides that if the accused is convicted, the Judge shall, unless he proceeds under section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.

The requirement of hearing the accused is intended to satisfy the rule of natural justice. It is a fundamental requirement of fair play that the accused, who was hitherto concentrating on the prosecution evidence on the question of guilt, should on being found guilty be asked whether he has anything to say or any evidence to tender on the question of sentence — all the more necessary because the courts are generally required to make the choice from a wide range of discretion. The provision therefore serves a dual purpose: it satisfies natural justice, and it helps the Court to choose the sentence to be awarded. It is clearly mandatory and should not be treated as a mere formality.

The trial court had treated it as one. It recorded the finding of guilt on 31 March 1987; on the same day, before the accused could absorb and overcome the shock of conviction, they were asked if they had anything to say on sentence; and immediately thereafter the decision imposing the death penalty was pronounced. In a case of life or death the presiding officer must show a high degree of concern for the statutory right of the accused. If the choice is made without giving the accused an effective and real opportunity to place his antecedents, social and economic background, and mitigating and extenuating circumstances before the Court, the Court's decision on sentence is vulnerable.

A sentencing decision has far more serious consequences on the offender and his family than a purely administrative decision; and since an administrative decision having civil consequences taken without a hearing is generally struck down as violative of natural justice, a fortiori a sentencing decision taken without complying with section 235(2) in letter and spirit meets a similar fate and may have to be replaced by an appropriate order.

The general rule: trial courts should, after recording the conviction, adjourn the matter to a future date and call upon both the prosecution and the defence to place the relevant material bearing on sentence before the court, and thereafter pronounce the sentence.

3. The choice of sentence, and the rule of last resort

Where a sentence of severity is imposed it is imperative that the Judge indicate the basis on which he considers a sentence of that magnitude justified; unless there are special reasons special to the facts of the particular case, catalogued as justifying a severe punishment, the Judge would not award the death sentence.

And if a Judge finds that he is unable to explain with reasonable accuracy the basis for selecting the higher of the two sentences, his choice should fall on the lower sentence.

Sentences of severity are imposed to reflect the seriousness of the crime, to promote respect for the law, to provide just punishment, to afford adequate deterrence and to protect the community from further similar conduct; a sentence therefore serves a threefold purpose — punitive, deterrent and protective. That is why, as Bachan Singh said, the Court must look not only to the crime and the victim but also to the circumstances of the criminal and the impact of the crime on the community. Unless the nature of the crime and the circumstances of the offender reveal that the criminal is a menace to society and that life imprisonment would be altogether inadequate, the Court should ordinarily impose the lesser punishment.

4. On the facts, death was not warranted

The courts below were considerably moved by the fact that the victims were innocent and helpless infants who had provided no provocation for the ruthless manner of their killing. No one can deny that the murders were ghastly. But the material for the choice of sentence was scanty:

• the motive was obscure, and the one stated — a quarrel between two infants of both sides — did not seem correct;
• the killings were not for gain;
• the charge showed that the target was PW 6, the father, and not the two infants, whose killing was not in the contemplation of any of the accused; both girls were victims of the offenders' ire resulting from frustration at the escape of their target;
• there was nothing uncommon about the crime as to make the case an exceptional one.

The mere fact that infants are killed, without more, is not sufficient to bring the case within the category of the rarest of rare cases.

The failure to give the convicts time to reflect on the question of sentence had a concrete cost: the chance, however remote, of the true motive surfacing was lost, and the antecedents of the accused, their socio-economic conditions and the impact of their crime on the community never came on record — and the absence of those particulars makes the choice of punishment difficult.

Both appeals were partly allowed. The conviction of accused 1 and 2 under all heads was confirmed, but their sentences of death for killing Sahana Khatoon and Chand Tara respectively were converted to imprisonment for life. The conviction and sentence of accused 3 to 6 under section 326 read with 149 was set aside, their convictions and sentences under other heads being maintained.

- On sentencing procedure, this is the case. Give section 235(2), the dual purpose, the mandatory character, the facts showing what went wrong in the trial court, and the adjournment rule. - On the rarest of rare doctrine, this is the counterweight to Machhi Singh: it takes a case squarely within the victim-personality category and refuses death, and it explains why — because the categories indicate types without introducing rigidity, and because circumstances may vary even within them. - Give the rule of last resort in terms. It is short, quotable in substance, and it converts a general principle about burdens into a workable direction to a judge. - Use it against the standardisation argument. Bachan Singh refused to lay down standards; Machhi Singh looked like it had; Allauddin Mian confirms that the discretion survives. That three-case sequence is the cleanest structure available for an essay on the rarest of rare doctrine. </content>