MD MANNAN @ ABDUL MANNAN versus STATE OF BIHAR

Citation: [2019] 8 S.C.R. 266 · Decided: 14-02-2019 · Supreme Court of India · Bench: N.V. RAMANA, MOHAN M. SHANTANAGOUDAR, INDIRA BANERJEE

Cited by 7 judgment(s) · cites 17 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 8 S.C.R.
                        MD. MANNAN @ ABDUL MANNAN
v.
STATE OF BIHAR
(Review Petition (Criminal) No. 308 of 2011)
In
(Criminal Appeal No.379 of 2009)
FEBRUARY 14, 2019
[N. V. RAMANA AND MOHAN M. SHANTANAGOUDAR
AND  INDIRA BANERJEE, JJ.]
Code of Criminal Procedure, 1973: s.235(2) – Hearing on
question of sentence – Death sentence – Right of a convict – Held:
Opportunity should be given to a convict to bring on record
mitigating circumstances for reduction of the sentence and a balance
should be struck between the aggravating and the mitigating
circumstance – In the instant case, the petitioner did not get the
benefit of competent legal assistance – Trial Court also did not
make any attempt to elicit materials relevant to the imposition of
death sentence – No affidavit was called for – The question of
whether there were any mitigating circumstances was not addressed
by the Trial Court or the appellate courts – Even though the hearing
under s.235(2) on the question of sentence was fixed on 31.5.2007,
that is, two days after pronouncement of the judgment and order of
conviction of the petitioner, on 29.5.2007, the hearing was preponed
to 29.5.2007 itself after the petitioner was produced from jail custody
and death sentence was imposed –  Preponement by the Trial Court
of hearing under s.235(2) at short notice, which is in effect, no
notice, appears to have denied the petitioner an effective hearing –
Hearing.
Review:  Rape and murder of eight years old girl – Conviction
under ss.376 and 302 and death sentence – Concurrent finding of
trial court and High Court – Special leave petition against the same
dismissed – Review petition also dismissed – Second review petition
filed in view of Constitution Bench decision in Mohd. Arif case –
Held:  Review petition, filed about eight years ago, was dismissed
by circulation on 24.08.2011 – Even thereafter, for almost three
[2019]  8 S.C.R. 266
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years the death sentence was not executed – The instant application
for reopening the review and hearing the same in Open Court, has
also been pending for over four years –  In view of  decision in
Mohd. Arif case, the petitioner is entitled to have the application for
review which was dismissed by circulation, reopened and heard in
open court.
Sentence/Sentencing: Death sentence – Prayer for
commutation –  Rape and murder of eight years old girl – Conviction
under ss.376 and 302 IPC and death sentence – Concurrent finding
of trial court and High Court – Special leave petition against the
same dismissed –  Review petition – Review restricted to question of
commutation of sentence – Held: Death sentence is imposed in the
rarest of rare cases, for which special reasons have to be recorded,
as mandated in s.354(3) CrPC – In deciding whether a case falls
within the category of the rarest of rare, the brutality, and/or the
gruesome and/or heinous nature of the crime is not the sole criterion
–  The Court is to also take into consideration, the state of his mind,
his socio-economic background, etc. – Therefore, before imposing
the extreme penalty of death sentence, the Court would have to
satisfy itself that death sentence is imperative, as otherwise the
convict would be a threat to society – The Court has to further
satisfy itself that there is no possibility of reform or rehabilitation of
the convict – In this case, an eight year old innocent girl fell prey to
the carnal desire and lust of the petitioner  – The conviction was
based on circumstantial evidence and extra judicial confession made
by the petitioner to the police in course of investigation – It was not
known whether there was any pre-meditation on the part of the
petitioner to murder the victim – No doubt, the crime was abhorrent,
but it is doubtful as to whether the crime committed by the petitioner
can be termed as “rarest of the rare” – The petitioner has for all
these years virtually been in solitary confinement – Medical evidence
revealed that he was not mentally sound – The mental health of the
petitioner at the time of execution is a relevant mitigating factor
which must be taken into consideration in the instant case –
Therefore, it is not appropriate to affirm the death sentence – The
death sentence imposed on the petitioner is commuted to life
imprisonment, till his natural death, without reprieve or remission –
Administration of criminal justice – Hearing – Code of Criminal
Procedure, 1973 – s.

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