SANTOSH KUMAR SATISHBHUSHAN BARIYAR V.

STATE OF
MAHARASHTRA (2009) SCC 6 498

BLJ5.3 Criminal Justice Administration- I

SUBMITTED BY:
SHREE PAWAR
UID: UGJ21-47
B.A.LL.B.(Adjudication and Justicing)
Semester-V
Academic Session:2022-23

SUBMITTED TO:
PROF. (DR.) DIVITA PAGEY
(ASSISTANT PROFESSOR OF LAW)

MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

REVIEW OF LITERATURE
CASE: Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra

CITATION: (2009) SCC 6 498

BENCH: Justice S.B. Sinha and Justice Cyriac Joseph

DATE OF JUDGEMENT: 13/05/2009

IMPORTANT SECTIONS: Section 30 Of Indian Evidence Act, Section 302/363/387 Of

This case revolves around the concept of rarest of rare case with regards to awarding death
penalty. This is a case where an accused was punished with death penalty by court of sessions
and the High court of Bombay the accused then filed an appeal in the supreme court of India
to reduce the punishment from death penalty to life imprisonment arguing that this is not a
“rarest of rare” case scenario. The supreme court in this case has elaborated on rarest of rare
case and the death penalty.

FACTS OF THE CASE

In this case, the accused plotted a conspiracy to kidnap either Abhijeet Kothari or Kartikraj,
aiming to extort a 10 lac Rs ransom from their family. Unfortunately, Kartikraj, a clerk at
Central Railway in Pune, became the victim. Kartikraj's father were employed as a Manager
at NABARD, Hyderabad, and his younger brother residing with him, were thrust into a
nightmare when, on August 8, 2001, the accused initiated contact with the victim's father.
Demanding a hefty sum and issuing threats to Kartikraj's life.

As the victim's family received subsequent calls, Ramraj, the victim's father, negotiated for
time to arrange the demanded funds. Desperate, he sought aid from a friend at NABARD,
Pune, but their attempts to locate Kartikraj were no successful. After receiving multiple
threats, Ramraj promptly filed a First Information Report (FIR), accompanied by Kartikraj's
photograph. The investigation started and the case was transferred to the Crime Branch. The
subsequent demand for 10 lac Rs, directed at the victim's brother, forced him to contact API
Lotlikar, the investigating officer. A series of arrests unfolded, encompassing Kumar Gaurav
(PW-1), the approver, and accused Nos. 2 and 3, Sanjeev Kumar Mahendra prasad Roy and
Santosh Kumar Shrijailal Roy, alongside Santosh Kumar Satish Bhushan Bariyar, accused
No.1.

However, the case unravelled its darkest facets when Kumar Gaurav (PW-1) expressed
desired to confess. The details revealed a plot to not only kidnap but also murder the victims,
with the accused mastermind hatching a gruesome plan to dismember the body and dispose of
it in plastic bags. The list of tools for this disturbing crime, the identification of disposal
locations, and the luring of the victim under the pretext of a party painted a horrifying picture
of premeditated brutality. After relentless physical assault and a demand for ransom, the
accused decided to kill Kartikraj, marking a gruesome end to a horrifying sequence of events.
Their attempts to conceal the crime and continue extorting money ultimately led to their
apprehension. Kumar Gaurav made a confession on which the prosecution case relies on and
later he was granted pardon by the session court and punishment was reduced from death
penalty to life imprisonment by exercising the power under section 306 and 307 of CrPC.

ISSUES

1. Whether the case fulfils the components of “rarest of rare” case to award death
penalty?
2. Whether the sessions judge acted lawfully on reducing the punishment of Kumar
Gaurav from death penalty to life imprisonment?

ARGUMENTS BY THE PETITIONER

 Counsel for petitioner argued that by making a conviction based on the confessions of
Kumar Gaurav the court of session has done a serious illegality because he also
retracted his confession afterwards.
 Counsel also contented that the judge did not exercise the conditions under 307 taking
into account the conditions outlined in section 306 were not met.
 Granting status of a witness is not legal and Kumar Gaurav’s statement shall be
treated as confession against co-accused as under section 30 of evidence act.
 He also argued that circumstantial evidences and statement of the accused are not
consistent with the guilt of the accused.

ARGUMENTS BY THE RESPONDENT

 The counsel representing the respondent contended that in the 2006 Criminal Appeal
No. 452 involving Sanjeevkumar Mahendra Prasad Roy and Santosh Kumar Shrijailal
Roy, the imposed sentence was surprisingly inadequate, and it should be elevated to
capital punishment. They argued that the nature of the crime committed by the
defendants qualifies as the rarest of the rare cases.
 He argued that Sanjeeb Kumar Roy (A2) and Santosh Kumar Roy (A3), being equally
involved in the crime and having played similar roles in its commission, were also
deserving of the death penalty. Additionally, the argument was made that there were
no mitigating circumstances in favour of the accused justifying the imposition of the
lesser penalty of life imprisonment.
 PRECEDENTS ON WHICH COURT MADE A REFRENCE

Rampal Pithwa Rahidas and Others v. State of Maharashtra 1994 Supp (2) SCC 73

While deciding the issue of Kumar Gaurav on capacity to become a witness and making a
confessional statement the court made a reference to this case of 1994

“It is only after the grant of pardon that the status of an accused is changed into that of a
witness and the law enjoins upon the Courts to record the statement of the approver
immediately after a pardon is granted to him so that he may consider himself bound by that
statement and failure to do so at the trial would render him liable for prosecution.”

Narayan Chetanram Chaudhary and Another v. State of Maharashtra [(2000) 8 SCC

Court made a reference to the case of Narayan Chaudhary while deciding the issue of
requirement of section 306 to be followed as in section 307

“There is no legal obligation on the Trial Court or a right in favour of the accused to insist for
compliance with the requirement of Section 306(4) of the Cr. PC. Section 307 provides a
complete procedure for recording the statement of an accomplice subject only to compliance
with conditions specified in Sub-section (1) of Section 306. The law mandates the satisfaction
of the Court granting pardon, that the accused would make full and true disclosure of the
circumstances within his knowledge relative to the offense and every other person concerned,
whether as principal or abettor, in the commission thereof. It is not necessary to comply with
the requirement of Section 306(4) when the pardon is tendered by the Trial Court. The Trial
Court, in this case, has taken all precautions in complying with the provisions of Section
306(1) before tendering pardon to accused Raju, who later appeared as PW. 2. We do not find
any violation of law or illegality in the procedure for tendering the pardon and recording the
statement of PW.2”

DEATH PENALTY & RAREST AND RARE CASE SCEANARIO

While considering the issue of rarest of rare case for imposing death penalty the court made
a reference to various judgements such as Bachan Singh, Macchi Singh, Panchhi and many
more.
Bachan Singh v. State of Punjab

Court considered the guidelines mentioned in this case and highlighting the case court stated
that “A Constitution Bench of this Court repelled the challenge of constitutionality to the
death penalty by laying down the framework law on this point. Bachan Singh (supra) serves
as a watershed moment in the history of death penalty jurisprudence in India as it severed the
Indian judiciary’s normative ambivalence on the subject. The sentencing procedure was taken
to be orienting the death punishment towards application in very selective situations”.

Court also agreed with the Bachan Singh judgement on a point that “aggravating and
mitigating circumstance relating to crime and the convict to be collected in the sentencing
hearing”.

Panchhi v. State of U.P. [(1998)

Court also highlighted the point made out in this case that death penalty shall only be
awarded when all other options are foreclosed.

JUDGEMENT

In interpreting the 'rarest of the rare' doctrine established in Bachan Singh, a two-Judge
Bench of the Supreme Court emphasized that the death sentence should only be considered
when life imprisonment is deemed entirely impractical. The courts, in deciding whether to
impose the death penalty, are required to follow a two-part test. Firstly, the judge must assess
if the case falls within the category of the 'rarest of the rare.' To accomplish this, the court
needs to identify both aggravating and mitigating circumstances.

Secondly, the court must opt for the alternative of life imprisonment when there is a
possibility of reformation. When opting for the death penalty, the courts are obligated to
articulate why the convict cannot be reformed or rehabilitated through any means. This
approach ensures a careful consideration of the severity of the crime and the potential for the
offender's rehabilitation before resorting to the ultimate punishment of death. The Supreme
Court has established that factors such as the nature, motive, and impact of the crime, the
degree of culpability, the quality of evidence, socio-economic circumstances, feasibility of
rehabilitation, and impossibility are among the considerations that the Court may weigh when
adjudicating such cases.
The Supreme Court noted that considering the age of the accused, which played a crucial role
in the High Court's decision not to impose the death penalty on accused No. 2 and 3, the same
criterion should have been applied to the appellant, who was only two years older and still
relatively young. While the appellant was allegedly the one who proposed the kidnapping
idea, it was emphasized that the plan was executed with the consent of all involved. The
Supreme Court further ruled that if pardon is granted in every case at the initial stage, the
authority given to the Sessions Judge under Section 307 of the Code of Criminal Procedure
would lose its significance. Therefore, the decision of the Sessions Judge to grant pardon to
the approver was deemed valid and legal.

Regarding the sentencing, the court determined that there were no specific grounds justifying
the death penalty, and the appellant was instead sentenced to rigorous life imprisonment. The
court considered the mitigating factors sufficient to categorize the case as falling within the
'rarest of the rare' category. Both previous appeals by the appellant and the State were
dismissed. The court explicitly stated that the circumstances did not warrant the imposition of
the death penalty, and, accordingly, the appellant was sentenced to undergo rigorous
imprisonment for life. With the mentioned modification in the appellant's sentence, both the
appellant's appeals and the State's appeal were dismissed.

REASONING

The prosecution's case relies on the statement of Kumar Gaurav (PW 1) and circumstantial
evidence. Given that the lower courts have found inconsistencies not supportive of the
accused's guilt, the appellant should be acquitted. The evidence presented by the prosecution
does not warrant the imposition of the death penalty, especially considering that the trial court
mistakenly concluded the absence of mitigating circumstances. The lower courts made a
significant error in basing the judgment and conviction primarily on PW 1 Kumar Gaurav's
evidence, despite his retraction of the confession. The courts must exercise discretion
cautiously, given the irreversible nature of the death penalty.

CONCLUSION

What actually is the rarest of rare case cannot be precisely established through words by
judiciary or legislature. It is difficult to make points that these all situations make it a rarest of
rare case and every case has to been looked independently. All the mitigating and aggregative
factors shall be considered it shall also be looked at whether death penalty is the only option
left or anything else can be done. It is said to be a judge centric concept, some judge may feel
a particular case as a rarest of rare case while other set of judges may not consider that
particular case as rarest of rare. This is an evolving concept and it will continue to evolve
over a period of time.