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20 ALJ (2012-13) 230

Rarest of Rare Cases : An Appraisal

RAREST OF RARE CASES : AN APPRAISAL

by
Suraiya Saleem
The sentence of “death” stands in the forefront in the category of punishment.
“Death penalty” or “Capital punishment” is the execution of a convicted criminal by
the State as punishment for crimes known as capital crimes or capital offences.
Historically, the execution of criminals and political opponents was used by nearly all
societies both to punish crime and to suppress the political dissent. The question
whether the State has the right to take away a man's life has often been agitated, but
it is a question upon which the moralist and the jurist are never likely to agree. For,
while the one condemns it as a relic of barbaric age in which “life for life” was the
common form of revenge, the other justifies it on the ground that it retention in the
penal Laws is itself a terror or which has a deterrent effect upon criminals. Exponents
of Utilitarianism viz. ‘Benthem’ and ‘Becaria’ insisted that the punishment is an evil.
Therefore, punisliment that is just, fair and reasonable must be inflicted to curb the
menance of crime. The capital punishment ought not to be proposed for, where some
lesser sentence could achieve the same objects and results. However the Supreme
Court for India held in Jagmohan Singh v. State of U.P.1 “that it will be difficult to hold
that capital punsishment as such is unreasonable or not required in the public
interest”.
The tendency of the modern time has been to abolish the capital punishment. Since
World War II, there has been a consistent trend towards abolishing death penalty.2 In
1977, 16 countries were abolitionists, while the figure has gone up to 133. Currently,
90 countries have abolished capital punishment for all offences, 11 for all offences
except under special circumstances, and 32 others have not used it for at least ten
years. A total of 64 countries retain it an most countries which practice death penalty
today, the death penalty is

Page: 231

reserved as a punishment for premeditated murder, espionage, treason, or as part of

military justice. In some Countries sexual crimes, such as rape, adultery, and sodomy,
carry the death penalty, as do religious crimes such as apostasy (the formal
renunciation of one's religion). In may retentionist countries (countries that use
deathpenalty), drug trafficking is also a Capital offence. In China, human trafficking
and serious cases of corruption are also punished by the death penalty. In militaries
around the world Courts-martial have imposed death penalty for offences such as
cowardice, desertion, insubordination and mutiny.

The Penal Code, 1860 was drafted by the first law commission of India and it goes
without saying that it is one of the most wonderfully draited law in India. This is what
the authors of the code had to say about death as punishment:
“We are convinced that it ought to be very sparingly inflicted, and we propose to
employ it only in case where either murder or highest ofience against the State has
been committed.”3
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It may be pertinent to mention here that Indian Criminal jurisprudence is based on

a combination of deterrent and reformative theories of punishmenl. While the
punishments are to be imposed to create deterrence amongst the offenders, the
offenders are also to be given opportimity for reformation. Keeping these theories in
mind, the legislature drafted Sec. 354(3) of the Cr. P.C. 1973. This sub-section
basically lays down that special reasons are to be recorded by the court for imposing
death penalty in capital offences. Thus, the position of law after Cr. P.C. 1973
(amendment) became that the general role was life imprisonment while the death
sentence was to be imposed only in special cases.
Constitutional Validity of Death Penalty:
In Jagmohan's Case4 the question of constitutional validity of Sec. 302 I.P.C. was
discussed in detail by the Supreme Court where the court observed as follows:
‘The Cr. P.C. requires that the accused must be questioned with regard to the
circumstances appearing against him in the evidence. He is also questioned
generally on the case and there is an opportunity for him to

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say whether he wants to say…. In important cases like murder the court always gives
a chance to the accused to address the court on the question of sentence. Under the
Cr. P.C. after convicting the accused, the court has to pronounce the sentence
according to law….”

On all these grounds the Supreme Court rejected the argument that under Sec. 302
I.P.C. life of convict is taken away without any procedure established by law and
therefore, it violates Art. 21 of the constitution of India. Thus the Supreme Court
settled this controversy long back in 1973.
However even after Jagmohan's case this question came up again and again.
The next important case, and which can be termed as milestone in the Indian
Criminal jurisprudence is the case of Bachan Singh v. State of Punjab5 . So strong were
the principles laid down by the Apex Court in this case that they are being followed
even now, despite the fact that the Supreme Court itself has expressed the need to
review criminal jurisprudence from time to time.
Firstly we must understand why Jagmohan's case was reviewed? After 1973
amendment in Cr. P.C. death sentence ceased to be the normal penalty for murder
u/s. 354(3). Another reason was that Maneka Gandhi's case6 gave a new interpretatien
to Arts. 14, 19 & 21 of Constitution and their interrelationship. Main issues before the
Supreme Court were the constitutional validity of Sec. 302 of the IPC as well as
constitutionil validity of Sec. 354 (3) of Cr. P.C.
J. Sarkaria delivered the judgmeent for majority discussing the issues at length &
the Supreme Court, with the majority of 4 : 1 rejected the challenges to the
constitutionality of Sec. 302, IPC & Sec. 354 (3) of Cr. P.C.J. Baghwati was the only
one to dissent. He said:
“I am of the opinion that Sec. 302 of the IPC in so far as it provides for
imposition of death penalty as an alternative to life sentence in ultra-vires and void
as being violative of Arts. 14 & 21 of constitution, since it does not pro vide any
legislative guidelines as to when life should be permitted to be extinguished by the
imposition of death sentence.
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This view of the SC was supposed to negate any chance of a controversy in future
on the question of “whether death penalty serves any penological purpose?”, the
Supreme Court considered a number of opmions from all over the world. Out of them,
the opinions of “Sir James Fïtziames Stephen”, the great jurist, who was concerned
iwth the drafting of IPC is very important to mention—
“No other punishment deters man so effectually from committing crimes as the
punishment for death. This is one of those propositions which is difficult to prove
simply because these are in themselves more obvious than any proof can make
them.
In any secondary punishment, however terrible there is hope, but death is death.
Its terrors can not be described more forcibly. These views are very strong answers
to the people who oppose death punishment, with the arguments that it does not
serve penological purpose.””
Now comes the question as to when should the courts be inclined to inflict death
sentence to an accused? As have been stated earlier, after Cr. P.C. 1973
(amendment), death sentence is the exception while life imprisonment is the rule.
Therefore, by virtue of Sec. 354(3) of the Cr. P.C. it can be said that death sentence
be inflicted in special cases only. The Apex Court modified this terminology in Bachan
Singh's case and observed—
“A real and abiding concern for the dignity of human life postulates resistance to
taxing a Jife through law's instrumentality. That ought to be done save in “rarest of
rare cases “when the alternative option is unquestionably foreclosed.”
To decide whether a case falls under the category of rarest of rare cases or not
was completely left upon the courts' discretion. The logic behind the categorization of
aparticulr case as “rarest of rare” has been to provide a check over the uncontrolled
and unguided discretion of judges imposing capital punishrognt or imprisonment for
life, as otherwise in Jack of any such laid down yrfardstick, the two persons found
guilty of murder on similar facts would be treated differently-one forfeiting his life and
the other suffering merely a sentence of life imprisonment.

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In Machi Singh v. State of Punjab7 the court summarized the proposition set out in
Bachan Singh's case and explained the task of sentencing judge whereby he is
supposed to draw up a balance sheet of aggravating and mitigating circumstances and
in doing so the mitigating circumstances have to be accorded full weight and a just
balance has to be struck in between the two before the option (to award the death
penalty) is exercised. Then the court listed various factors to be considered in
determining whether a case should be considered one of “rarest of rare cases”, like the
mariner of commission of the crime, motive, antisocial or socially abhorrent nature of
the crime, magnitude of the crime and the personality of the victim. This has probably
been the development of “rarest of rare “doctrine, which has helped the death penalty
survive as a form of punishment over the years.
The best evidence role applies heavily in cases of death penalty, and the court in
many of the cases pays more reliance on one or two major witnesses who may be the
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direct evidence of incident. In murder cases involving rape, there is absence of direct
evidence & the circumstantial evidence definitely plays a major role. Now to
understand the prevalent judicial approach, the philosophy of the phrase “rarest of
rajg” cases has to be studied through the means of some latest case laws in which the
doctrine has found applicability. This would help to understand as to how the courts
have actually applied the very principle.
Analysis of case Law
In the case of the State of Maharashtra v. Shivaj7 the deceased was just nine years
old girls and came from a poor family. The deceased, her two sisters and their ground-
mother were being maintained by the deceased's raother who was working as a maid.
The father of the deceased had deserted them and she was thus a vulnerable young
girl. The accused was her neighbour and sometimes the deceased used to give the
accused some food. The relations between the accused and the family of the deceased
were cordial and the deceased thus trusted the accused, of which he took advantage
by taking her to a desolate place in the jungle on the pretext of giving her fuel wood.
There he raped her and after stabbing strangulated her to death. He was last seen in
the company of the deceased and the deceased was not seen thereafter till her dead
body

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was found on the hill. Penknife stained with humanblood of “O” group was recovered
at the instance of the accused. The blood group of the deceased was ‘O’. The accused
was abseonding and was arrested three days after the incident from the field of
sugarcane erop where he was hiding. Human blood was found on the clothes of the
accused and he offered no explanation for any of the circumstances. He took up a false
plea of alibi which became a link in the chain of circumstances which pointed
unerringly to the guilt of accused. All the established facts were consistent only with
the hypothesis of the guilt of the accused and were inconsistent with his innocence.
Hence it was considered to be coming under the category of “rarest of rare one” and
death penalty was awarded.

The case of Dayanidhi Bisoi v. State of Orissa8 was based on circumstantial

evidence. The lower courts in the absence of direct evidence relied upon eleven
circumstances to come to the conclusion that appellant was guilty of offence of
murder. Accused was a middle aged man who hatched a plan to rob his own relatives
who had fed him at least for short period and brought him up. Ablood stained shirt
was found trom his house. Finger prints also matched with those found on the death
spot. His subsequent conduct all went on to prove his guilt. He took away four lives in
a brutal manner not only necessarily in execution of his intention to commit robbery
but also to erase the possible evidence of his act.
Prosecution relied on evidence of witnesses who were the neighbours of the
deceased. From the evidence it was apparent that the appellant had visited the
deceased on the day the offence took place. Prosecution proved its case beyond
reasonable doubt that the incriminating circumstances indicated a hypothesis
consistent only with the guilt of accused. There was a chain of circumstances
establishing the involvement of the appellant in the murder of deceased.
Hence it was considered to be a “rarest of rare case” and the accused was awarded
death penalty.
In case of Shri Mahendra Nath DAS v. State of Assam9 . The accused inflicted sword
blow on the deceased who feil down and thereafter the accused amputated and also
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severed his head and carried the head in one hand and the sword in another hand to
the Police Station. There were

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several eye witnesses to the incident as were standing on the spot of crime. A sweeper
went to inform about the incident and saw the appellant entering the station. There
the accused asked one of the constables on duty as to where he should keep the head
and weapon. Hence there were many witnesses to the incident. The mitigating
circumstances showed that the appellant was a young man of 33 years of age and
having three unmarried sisters and aged parents and he was not well at the time of
incident, but were not so enough so as to prevent him from the awarding the death
penalty. The case was considered to be a ‘rarest of rare one’ and the Supreme Court
upheld the death penalty.

In yet another famous case of Dhananjoy Chatterjec alias Dana v. State of West
Bengal10 one Hetal Parekh, an 18 year old school going was raped and murdered on
Maren 5, 1990 between 5.30 and 5.45 p.m. in her Flat No. 3-A on the third floor of
Anand Apartment. The appellant was one of the security guards to guard the building
of Anand Apartments. Deceased had made complaint about the teasing by the
appellant to her mothers previously also and her father requested one Shayam
Karmarker to replace the appellant and accordingly he was transferred to nearby Paras
Apartment. The appellant in spite of the order of transfer, did not report there and
instead performed duties as guard at Anand Apartment during the material time. He
went to the flat of the deceased where she was alone, in pretext of making a phone
call. Meanwhile supervisor inquired about him and he also gave answer from the
balcony of the flat of the deceased that he was coming. The appellant after a little
while came down by the stairs and even though the supervisor PW6 and Dasarath PW7
were waiting for him, he hurriedly went to pass them. The girl was found with her skirt
and blouse pulled up and her private parts and breast were visible with patches of
blood near her head and floor. The appellant did not even visit his employers to collect
his wages for the four days service rendered with the other employer either. He was
not traceable. During the investigation of the case, when the police searched the room
where the dead body of the eceased was lying, they recovered a broken chain and a
shirt button of cream colour with four holes from the bedroom which were proved to be
belonging to the accused. In the circumstances the chain of the evidence was so
complete that it led to the guilt of the accused.

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All the circumstances relied upon were conclusively established regarding rape and
murder of the victim and the trial court awarded death sentence which was confirmed
by the High Court. The offence was not only inhuman and barbaric but it was a totally
ruthless crime of rape followed by cold blooded mruder and an affront to the human
dignity of the society, bringing the case into the category of ‘rarest of rare cases’ and
therefore, imposition of the extreme penalty of capital punishment upheld.
In State of U.P. v. Satish11 the victim studied in one Sarvodhya Public School. One
day she had gone to school and did not return at the usual time. On the next day
morning her dead body was found in the Sugarcane field of one Moolchand around
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6.00 a.m. Report was lodged at the nearby Police Station and dead body was sent for
post mortem examination. Three persons claimed to have seen accused nearby the
place of occurrence between 1.00 to 2.00 p.m. on the date of occurrence. Other two
claimed to have seen the deceased being carried on a bicycle by the accused, who was
taking the bicycle with the deceased sitting on the handle thereof. Also the accused
was seen in perplexed state near the place trom where the dead body of the deceased
was found at relevant time. Investigation was undertaken and during it there was
recovery of accused's underwear as also the undergarment which the deceased was
wearing which was treated to be evidence under section 27 of the Evidence Act. The
court upheld order of trial court of awarding the death penalty being a rarest of rare
cases and the order of High Court of acquittal was set aside.
In Renuka Bai @ Rinku @ Ratan v. State of Maharashtra,12 the Court held that “the
two appellants kidnapped several children and committed their murder in the most
dastardly manner. In some cases, the body could not be traced out. The High Court
feit that these five cases of murder have been proved against these appellants, the
murders committed by the appellants are proved by satisfactory evidence. We do not
find any reason to interfere with the order of the conviction passed by the session's
court and confirmed by the High Court. Going by the details of the case we find no
mitigating circumstances in favour of the appellant, except that they are women.
Further the nature of the crime and the systematic way in

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which each child was kidnapped and killed amply demonstrates the depravity of the
mind of the appellants. These appellants were indulged in criminal acti vities for a long
time and continued it till they were caught by police. They very cleverly executed their
plans of kidnapping the children and the moment they were no longer useful, they
killed them and threw the dead body at some deserted place. The appellants had been
a menace to the society and the people in locality were horrified and they could not
send their children even to schools. We do not think that these appellants are going to
be reformed. We confirm their conviction and death sentence”

A few of more instances considere to be appropriate under the category of rarest of

rare ones:—
1. Accused committed a cold blooded murder of his sister-in-law and her daughter
of 8 years of age without provocation and carried the body to the jungle where
he hung the head being tied on a branch with the hair and kept the body, on the
trunk of the tree. The facts established the depravity and criminality of the
accused in no uncertain terms.13
2. The people accused responsible for the assassination of the former Prime Minister
of India, Rajiv Gandhi were hard core nucleus of LTTE (Liberation Tamil Tigers
Elem). There was exceptional depravity on the part of accused, unparralled act in
the annals of the crime and marmer in which the late Prime Minister was killed
along with others. There was a lot of evidence on record to prove criminal
conspiracy on the part of the respondents to be proved.
However there have been cases where the Courts did not find the matter appearing
before them to be a “rarest of rare one”. For the comparative understanding with the
former set of cases, it would be useful to analyse a few of them. In the case of
Surendra Pal Shivbalakpal v. State of Gujrat14 there was a prosecution of appellant for
committing rape on a minor child and causing her death. There was a conviction by
the trial Court imposing death penalty. Conviction and death sentences as afifirmed by
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High court. There was an appeal against conviction and there weresfrong evidences
topow that appellant committed offence,

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Reliance was also laid on section 27 of The Evidence Act regarding recovery of the
dead body pursuant to the confession made by the appellant. His clothes were
recovered and sent for chemical examination and also there was no rational
explanation by the appellant for presence of blood stains on his clothes, there was also
witness on record who had seen appellant moving around with minor girl on his
schoulders at 1.00 a.m. in night. But the appellant was aged 36 years and also there
was no evidence to show that appellant had involvement in any other criminal case
previously. Also the fact was that appellant was amigrant laourer from U.R. living in
impecunious circumstances and also was not likefy to be a menace to the society in
future. Hence it was held not to be a ‘rarest of rare’ case warranting imposition of
death penalty and commutation of sentence of Capital punishment to life
imprisonment was there.

In the case of Lahukumar S/o Ramachandra Dhekane v. State qf Maharashtra15

appellant extorted an amount of Rs. 5,000/- from Chandrakanth who was the father of
the minor son and still killed the child and subsequently destroyed the evidence, the
charge against the accused was principally in two parts, the first part was kidnapping
the child for ransom and the second was murdering the child and destroying the
evidence. Accused was seen going on a motor bike carrying deceased behind him
having a school bag with him. Accused was also familiar to the child and had done
some furniture work in his house. The handwriting of the acused also matched with
the leters written by him for the purposes of demanding ransom and also the address
written by him for the purposes of demanding ransom amount was recovered from his
house and some other case of kidnapping and murder was also pending against him.
Section 27 of the Evidence Act came into the picture because of the fact that the
accused showed the spot where afterwards the skeleton of the child was found. As far
as the mitigating circumstances were concerned, at that time the accused was just 24
years of age with hardly any occupation and without much education. Death penalty
was not awarded and life imprisonment was considered to be proper.
In another case of Bachhirtar Singh v. State of Punjab16 there was a gruesome
murder in which eight members of two families were eliminated by own brother along
with two others due to greed to grab

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the land. Conviction was based on the testimony of sole eye-witness and also duly
corroborated by other lending and clinching circumstances such as recovery of various
items including guns used in crime, empty cartridges, turban shoe etc. consequent to
the disclosure statement made by the accused. Defence on alibi was not proved. Guilt
of the accused was proved beyond the shadow of the doubt on the basis of eye-
witness account coupled with other formidable material. But there were certain
mitigating circumstances which showed that the appellants were not a menace to the
society threatening the peaceful and harmonious coexistence of the society. There was
apossibility of their being reformed and re-habilitated. Hence it was not a rarest of rare
case warranting capital punishment.
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In Raman Subramanium v. State of Kerala17 the accused whose services were

terminated by deceased, killed the decased and her three children & was sentenced to
death by he trial court, against which he appealed in the Apex Court. The counsel for
state submitted that the crime was cruel in nature and the appellant killed the three
innocent children along with their mother and he deserved edeath penalty. The
counsel for appellant on the other hand submitted that the prosecuriton could not
adduce best evidence and even if he is found guilty, his sentence is to be commuted
to life imprisonment.
The court held “that though it is true that the crime committed by the appellant is
cruel and dastardly in nature and appellant deserves no mercy. However, it may be
noted that it is not known how and under which circumstances the incident had taken
place, the appellant was annoyed by the fact that his services were terminated without
being paid any compensation despite serving his employer for quite a long time.
Taking the overall facts into consideration, we do not find that this is one of the ‘rarest
of rare” case, where death punishment could be only sentence. Therefore the death
sentence of the appellant is commutted to life imprisonment.”’
By going through various case laws, one point becomes quite clear that the persons
convicted for offence of similar nature are liable to be awarded punishment of varying
degrees, thanks to the phenomenon called “rarest of rare”. Amongst the cases
discussed earlier, the likes of Dhananjay Chatterjee v. State of West Bengal18 , State of
U.R v. Satish19 ,

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were considered to be coming under the category of rarest of rare ones, whereas the
accused in a few other most similarly situated cases like State of Maharashtra v.
Snresh20 Surendra Pal Shivhalakpal v. State of Gujrat21 were not awarded the death
penalty’

Although iii between two similar class of cases certain differences coult well be
found out in relation to the evidence adduced, mitigating and aggravating
circumstances prevailing in the case etc. In a few cases the circumstantial evidence
has not proved to be much strong and reliable as not forming a complete chain of
incidents or the best evidence has not been brought on record. Also in some other
cases which have not been held to be rarest of rare ones, the mitigating circumstances
had coverruled aggrvating ones and the court took them into consideration while
passing the judgement, but still what marters much is the judicial discretion and
judges' discretion and judge's subjectivity. To further substantiate the point in the
case of Mohan v. State of Tamil Nadu the accused were awarded death punishment for
kidnapping and killing a child and almost in similar circumstance sin the latest cases
of Lahukumar S/o Ramachandra Chekane v. The State of Maharashtra, death sentence
was not awarded.
Now after such an analysis, it could be stated that judicial discretion exercised in
ordinary matter one way or the other way even if faulted, is understandable and must
be accepted. But a matter of life and death can not be excused in the same way. The
words “rarest of rare” have often masked the arbitrary choice of sentencing judge and
lulled us into a complacent belief that the sentencing judge has made the right choice,
between life and death. The tact that full discretion is given to ultimate analysis it can
be said that such wide discretion he resulted into enormously varying judgements,
which do not portray a good picture of the justice delivery system. What thus needed
to be done therefore is to raise and review the guidelines and principles laid down in
cases like Bachan Singh or Machi Singh, or if it is fact that these guidelines still stand
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firm and fit perfectly in the present social scenario, then these guidelines have to be
strictly complied with, so that the persons convicted for offence of similar nature are
awarded punishments of identical degree and a convict sentenced to death may then
not say - why me and not him who escaped with a lesser punishment. Perhaps the
Indian Supreme

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Court's lead in imposing the death penalty in the ‘rarest of rare’ cases has to be the
acceptable, though could be a grudging compromise.

———
1. (1973) 1 SCC 20 : AIR 1973 SC 947 : Cri. L.J. 370.
2.
Penketh Anne (2005), The Independent (UK).
3. http//www.wikipedia.com.
4. Supranotel.
5.
(1980) 2 SCC 684 : AIR 1980 SC 898 : 1980 Cri. LJ 626.
6. 1983 Cri LJ 1457 : (1983) 3 SCC 470 : AIR 1983 SC 957.
7. 2004 SCC OnLine Bom 1116.
8. 2003 Cri LJ 3697 : (2003) 9 SCC 310 : AIR 2003 SC 3915.

9. 1999 Cri LJ 2873 : (1999) 5 SCC 102 : AIR 1999 SC 1926.

10. AIR 1995 SCW 510.
11. 2005 Cri LJ 1428 : (2005) 3 SCC 114 : AIR 2005 SC 1000.
12.
(2006) 7 SCC 442 : AIR 2006 SC 3056.
13. Jai Kumar v. State of M.P., 1999 Cri LJ 2569 : (1999) 5 SCC 1 : AIR 1999 SC 1860.
14. State of Tamil Nadu v. Nalini, 1999 Cri LJ 3124 : (1999) 5 SCC 253 : AIR 1999 SC 2640.
15. 2004 Cri LJ 4642 : (2005) 3 SCC 127 : AIR 2004 SC 4862.
16.
(2002) 8 SCC 125 : AIR 2002 SC 3473.
17.
(2007) 12 SCC 801 : AIR 2006 SC 639.

18. Supranote 10.

19. Supranote 11.
20. (2000) 1 SCC 471.
21. (2005) 3 SCC 127 : AIR 2004 SC 4862.

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