The 'rarest of rare case' test is not 'judge centric' but depends on the perception of society and whether it would approve the award of death sentence to those convicted in certain types of crimes, the Supreme Court has held. "Courts award death sentence, because situation demands, due to constitutional compulsion, reflected by the will of the people, and not judge-centric," a bench headed by Justice K S Radhakrishnan said.
"To award death sentence, the aggravating circumstances (crime test) have to be fully satisfied and there should be no mitigating circumstance (criminal test) favouring the accused.
"Even if both the tests are satisfied as against the accused, even then the court has to finally apply the rarest of rare cases test, which depends on the perception of the society and not judge-centric, that is whether the society will approve the awarding of death sentence to certain types of crime," the bench also comprising Justice Dipak Misra said.
The observations were made in a judgement by the apex court which commuted the death penalty awarded to two men for hacking to death four members of a family in August, 2000 over a property dispute, in Punjab.
The apex court modified their punishment to life imprisonment of 30 years, saying "so far as this case is concerned the extreme sentence of capital punishment is not warranted".
Gurvail and Satnam Singh were awarded death penalty by a trial court in 2000. The punishment was upheld by the Punjab and Haryana High Court in 2005.
The court while modifying their punishment said, "Some of the mitigating circumstances, as enunciated in Machhi Singh case, come to the rescue of the appellants. Age definitely is a factor which cannot be ignored, though not determinative factor in all fact situations. The probability that accused persons could be reformed and rehabilitated is also a factor to be borne in mind."
Gurvail was 34-years-old at that time of committing the crime, while Satnam was 22 years old.
The apex court in its 13-page judgement also observed that while awarding death sentence, the court has to look into variety of factors like "society's abhorrence, extreme indignation and antipathy to certain types of crimes like rape and murder of minor girls, especially intellectually challenged minor girls, minor girls with physical disability, old and infirm women etc.", and clarified that the examples are illustrative and not exhaustive.