MOOT COURT COMPETITION,

SHOOLINI
DOCTRINE OF RARE OF RAREST

 The Apex Court of the Nation in Bachan Singh v State of Punjab[ AIR
1980 SC 898. ] laid down the principle, “Life imprisonment is the rule
and death sentence is an exception.”

 Rajendra Prasad v. State of Uttar Pradesh[1979 3 SCC 646.] The

Apex Court in the instant case held that the special reasons sought to
be recorded must relate to the criminal rather than the crime and
death penalty is the last step where the murderer is unlikely to be
cured and may tend to murder others if left alive. Further, the Court
said that it could be awarded only if the security of the state and
society, public order and the interests of the general public compelled
that course.

In the landmark judgement of Bachan Singh v. State of Punjab The

Supreme Court in 1980 attempted to carve out a doctrine specifically for
offences punishable with death so as to reduce the ambiguity for courts as to
when to go for the highest punishment of the land. The doctrine was laid
down in 1980 in the case of Bachan Singh by a Constitution Bench of 5
judges while deciding the Constitutional validity of death penalty provided in
Section 302 IPC and the sentencing procedure as provided under Section 354
(3) of the CrPC,1973. The court primarily held that :-

1. In order to qualify in the category of aggravating circumstances which

may form the basis of special reasons in Section 354(3), circumstance
found on the facts of a particular case, must evidence aggravation of an
abnormal or special degree.
2. Some mitigating circumstances which the courts shall take into account
and given great weight in the determination of sentence are – Extreme
mental or emotional disturbance of the accused, age of the accused i.e.
 extreme youth or old, the probability that the accused would not
commit violent acts further, probability that the accused can be
rehabilitated, moral justification by the accused of the crime committed
or duress or domination by someone else over the accused.

 For persons convicted of murder Life imprisonment is the rule and

death sentence an exception. Human life should not be taken save in the
rarest of rare cases when the alternative option is unquestionably
foreclosed, thereby propounding the rarest of rare doctrine for the
determination of death sentence.

Machhi Singh vs. State of Punjab(A.I.R. 1983, S.C 957.) laid down
the broad outlines of the circumstances when death sentence should be
imposed. Justice Thakkar speaking for the Court held that five
categories of cases may be regarded as rarest of rare cases deserving
extreme penalty. They are:

 Firstly: Manner of Commission of murder – When the murder is

committed in an extremely brutal manner so as to arouse intense and
extreme indignation in the community, for instance, when the house of
the victim is set a flame to roast him alive, when the body is cut to
pieces or the victim is subjected to inhuman torture.

 Secondly: Motive – When the murder is committed for a motive which

evinces depravity and meanness eg. a hired assassin, a cold blooded
murder to inherit property, or gain control over property of a ward, or a
murder committed for betrayal of the motherland.

 Thirdly: Anti-social or socially abhorrent nature of the crime – where a

scheduled caste or minority community person is murdered in
circumstances which arouse: social wrath; or bride burning for dowry,
or for remarriage.

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  Fourthly: Magnitude of the Crime – Crimes of enormous proportion,
like multiple murders of a family or persons of a particular caste,
community or locality.

 Fifthly: Personality of victim of murder8

Applying the aforesaid principles, the Supreme Court in a recent judgment

of Mukesh and another vs. State of NCT of Delhi 2017 (Nirbhaya case)
involving the brutal rape and murder of para-medical student, has taken into
consideration all the evidences and investigation reports including the dying
declaration, statements of witnesses, medical examination reports, etc. The
mitigating factors as contended by the appellants include absence of pre-
meditation to commit a crime of the present nature, poverty-stricken
background, no criminal antecedents, the suffering that their family will face
if they are awarded death sentence, etc. Whereas, the aggravating
circumstances include the brutal and barbaric nature of the crime involving
assault on the deceased victim with iron rods, pulling out vital organs, sexual
violence, etc that would have caused her extreme mental and physical trauma,
that ultimately, led to her death. These circumstances led to the indictment
and death penalty of some of the rapists.
According to the Supreme Court, the medical reports and other evidences
have established the fact that the accused persons had treated the deceased-
victim in a devilish and perverse manner, which is bound to shock the
collective conscience of the community. Thus, the Court has held that the
aggravating circumstances have outweighed the mitigating factors, and as a
result, this case has fallen under the ‘rarest of rare case’ category. Therefore,
the SC upheld the order of the High Court to sentence the accused persons to
death.

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