SANTOSH KUMAR SATISHBHUSHAN BARIYAR versus STATE OF MAHARASHTRA

Citation: [2009] 9 S.C.R. 90 · Decided: 13-05-2009 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Cited by 20 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

r-
[2009] 9 S.C.R. 90 
(_ 
~ 
A 
SANTOSH KUMAR SATISHBHUSHAN BARIYAR 
v. 
" 
STATE OF MAHARASHTRA 
(Criminal Appeal No. 1478 of 2005) 
B 
MAY 13, 2009 
[S.8. SINHA AND CYRIAC JOSEPH, JJ.] 
)t 
) 
CODE OF CRIMINAL PROCEDURE, 1973; 
c 
Sections 306, 307 - Tender of pardon to accomplice -
Power to direct - Discussed - On the facts of the case Held: 
The pardon granted by the Sessions Judge was legal and 
..... 
valid. 
SENTENCING: 
~ 
D 
-
Death sentence - Rarest of rare cases - Special reasons 
~·Mitigating factors - Discussed - On the facts of the case -
Held: There are no special reasons to record the death 
penalty and the mitigating factors are sufficient to place it out 
E of the rarest of rare category - Thus, it is not a case where 
death penalty should be imposed - Instead of death penalty 
appellant to undergo rigorous imprisonment for life - Code of 
+-
Criminal Procedure, 1973, Sections 235(2) and 354(3) -
·-
Constitution of India, Articles 14, 21. 
F 
DOCTRINES: 
Doctrine of Prudence - Doctrine of Proportionality -
Applicability of. 
G 
In these appeals, the principal questions which arose 
for consideration were: 
~· --
(i) 
Whether the Sessions Judge acted illegally in 
granting pardon to an accomplice (PW1 ); and 
..... 
H 
90 
I 
SANTOSH KUMAR SATISHBHUSHAN BARIYAR v. 
91 
STATE OF MAHARASHTRA 
i 
(ii) 
Whether the case falls under 'rarest of rare A 
-~ 
cases' so as to enable the Courts below to 
award death penalty. 
Dismissing the appeals and reducing the death 
sentence to rigorous imprisonment for life, the Court 
B 
:l<, 
HELD: 1.1. The order of Sessions Judge dated 3rd 
April, 2002 shows that the Judge not only applied his 
mind on the application (Ext. P-7) for grant of pardon filed 
by the Investigating Officer but also examined the 
appellant by putting relevant questions to him. The c 
Sessions Judge, therefore, did not pass the order dated 
;.. .., 
3rd April, 2002 only on the basis of the purported 
confessional statement made by PW-1 on 1st November, 
2001. It was not done mechanically. If in law it was not 
necessary for the Magistrate to forward a copy of the D 
confessional statement made by PW-1 under Section 164 
of the Code of Criminal Procedure or to record a separate 
statement of the said witness for the purpose of 
complying with the provisions of Section 306 of the Code 
" 
of Criminal Procedure, the question as to whether he had 
E 
retracted from his confession or not would not be of 
much relevance as regards exercise of power by the 
--t 
~essions Judge under Section 307 of the Code. [Para 9] 
·' 
(126-A-D] 
1.2. Magistrate in his evidence categorically opined 
F 
that PW-1 had told him that he had not signed the said 
application retracting his confession. It may be that the 
said fact was not borne out from the judicial records, 
which were sent to the Sessions Judge with the order of 
G 
committal, but then there is no reason to disbelieve the 
-
-• 
statement of the Magistrate. [Para 9] (126-0-F] 
1.3. If it is to be held that in each and every case 
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pardon can only be granted at the initial stage, the power 
i 
conferred upon the Sessions Judge to grant under H 
92 
SUPREME COURT REPORTS 
[2009] 9 S.C.R. 
>-
.. , 
A Section 307 of the Code of Criminal Procedure for all 
... 
intent and purport shall become otiose. [Para 9] [128-E-
' 
F] 
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1.4. In the instant case, the order of the judge granting 
B pardon to t~e Approver, is legal and valid. [Para 9] [128-
F-G] 
Narayan Chetanram Chaudhary and Another v. State of 
Maharashtra (2000) 8 sec 457, relied on. 
c 
Rampa/ Pithwa Rahidas and Others v. State of 
Maharashtra 1994 Supp (2) SCC 73, distinguished. 
2. For an effective compliance of sentencing 
.. ..: 
procedure under section 364(3) and section 236(2) Cr.P.C, 
D sufficient discretion is a pre-condition. Strict channeling 
of discretion would also go against the founding 
principles of sentencing as it wm prevent the sentencing 
court to identify and weigh various factors relating to the 
crime and the criminal such as culpability, impact on the 
society, gravity of offence, motive behind the crime etc. 
E [Para 11] [129-F-G] 
Bachan Singh v. State of Punjab (1980) 2 SCC 684, 
relied on. 
f-
,., 
F 
Rajendra Prasad v. State of Uttar Pradesh (1979) 3 SCC 
646; Saibanna v. State of Karnataka (2005) 4 SCC 165 and 
Mithu v. State of Punjab AIR 1983 SC 473 - r«llied on. 
Furman v. Georgia, 408 U.S. 238 (1972); Reyes v. R. 
(2002) UKPC 11 : 12 BHRC 219; Hughes, R. v. (Sa

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