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  • Writer's pictureIRALR


This article has been authored by Udisha Mishra, a second year law student at West Bengal National University of Juridical Sciences, Kolkata.


‘Death penalty’ as a form of punishment is the most debated topic in the present era. Owing to the gravity of the punishment, it was held by the Supreme Court that such a punishment could not be granted rampantly and laid the “Doctrine of the Rarest of the Rare” in the case, Bachan Singh v. State of Punjab. So as to decide, whether a case belongs to this category or not, the court needs to strike a balance between the ‘aggravating’ and ‘mitigating’ factors involved in the crime. These factors can be addressed as “cumulative analysis of the circumstances surrounding the criminal act, which is done by either studying the nature of the crime committed or by assessing the state of the accused” which further determine the severity of the crime and hence, help to assess the quantum of punishment to be provided. This article is an attempt to help understand these factors. Absence of any formal guidelines regarding their application is highlighted, and an example of Finnish-courts is provided, where a well- structured legal framework is available for deciding such sentences.

In India, there exists no exhaustive list stating the affecting factors, rather the onus to decide the same lies on the judges, which they have efficiently done through various cases. It has been held by the courts that only when both the aggravating and mitigating factors of a case are taken into consideration, and a judgement is granted accordingly, only then it can be said that a fair and appropriate trial and sentencing took place. However, it is important to mention that an exhaustive list regarding the same is inappropriate owing to the fact that each and every case is different, and the result solely depends on the facts of the case. A blind blanket on the same cannot be accepted and thus, the list should be evolving from time to time. A brief discussion on aggravating and mitigating factors is provided below.

Mitigating Factors

Mitigating factors are various aspects of the offence, which may help the convict in reducing the punishment for the crime s/he committed. In Bachan Singh, the court provided an illustrative list of the factors that can be regarded as mitigating factors. The young age of the accused is recognised as a quite relevant factor while deciding the sentence. Such is so because this young age provides higher chances of reformation and rehabilitation of the convict, which is one of the goals of the justice system in India. In the case, Ramnaresh v. State of Chhattisgarh, though the felons were convicted for gang-rape and murder, their death sentence was reduced to life imprisonment because of their young age which acted as a precursor to their higher chances of reforming. If the offence in question is committed under ‘extreme mental or emotional disturbance’, the convict may enjoy the chances of reduction in the quantum of the punishment.

In Om Prakash v State of Haryana, the convict shot dead six people over a land dispute. Though the nature of the crime was gruesome, the court reduced the death sentence to life imprisonment stating that the convict was under ‘extreme emotional disturbance and thus the case does not qualify as the rarest of the rare category. They stated that the continuous harassment of his family by the deceased people made him go astray and forced him to commit such a felony.

The court in the Om Prakash upheld that not only the distressing mental state but also the situation when the convict commits the offence under the impression that he is morally justified in committing an act can be used as mitigating factors. Though the act can never be justified and is abhorrible, the mental state of the accused during the act plays an important factor while providing a sentence on the basis of the crime.

Socio-economic factors can also compel a person to commit an act, which he would not have committed otherwise. In the case, Mulla v. State of Uttar Pradesh, the court held that though mitigating factors do not dilute the guile of the accused, the same can be and should be utilised while deciding the quantum of sentence. It stated that people committing such felony under socio-economic pressure have high chances of reforming when provided a chance for better living.

Along with the mentioned factors, other factors include mental incapacity of the accused, acts done under compulsion, and instantaneous actions of the convict. Again, this list is merely indicative and more factors on the basis of the facts of the case are being employed by the courts to provide an appropriate punishment to the convict.

Aggravating Factors

Aggravating factors are cumulative aspects which are responsible for attenuating the punishment being granted to the accused. In other words, they augment the culpability of the convict. A presence of a previous criminal record has been noted as a relevant aggravating factor in various cases. In the case, Accused X v. State of Maharashtra, the Supreme court decided that the all the mitigating factors present in the case were outweighed by the existence of prior criminal record of accused mentioning an equally formidable crime like the offence in hand. The nature of offences for being referred in such a situation ought to be grave and dreadful in nature such as rape, kidnapping, etc. and also the time gape between the two acts should be noticed. The lesser the gap, the higher the culpability.

Misuse of Parole or Bail and indulging in a criminal act while on same, is considered as an aggravating factor by the courts. The US sentencing policy, also expressly mentions that when an accused commits a crime while on bail or under probation regulation, such execution shall be regarded as an aggravating determinant. Indian Courts have also settled their position by expressing that such violations shall attract more rigour punishments in lieu of those being salient features.

In the case, Mukesh v. State for NCT of Delhi, the court held that the gruesome nature of the crime (gang-raping, rupturing the intestine by insertion of rod in private portions of the victim and throwing her out of running bus in the naked state)outweighs all the possible mitigating factors that can ever exist. It held that because of such inhuman and dastard nature of the crime, the convicts could not be spared and be provided with lesser punishments as this would destroy the soul of justice. It has stated so as such gruesome and barbaric execution of crime by the offenders depicts that their mind is non-compliant of reformation. Nonetheless, such crimes cannot be pardoned and should be given the harshest punishment so that people fear committing them in any world. In-State of Maharashtra v. Puroshottam, umpteen number of injuries inflicted upon the body of the deceased and proof of inhumane treatment and continuous torture meted to the deceased acted as aggravating factors while deciding the sentence to the convict.

Like the mitigating factors, the list of aggravating factors is also non-exhaustive and is developing through various judgements.

Sentencing Policy in India and Alternatives

Malimath Committee Report highlighted the need for a structured guidelines system for the application of these aggravating and mitigating factors. It stated that the acts in power have only mentioned the terminal maximum and minimum sentence that can be provided for a crime, which provides the judges with an extravagant opportunity to “accommodate their discretion” which deciding the sentence. This ambiguity can be witnessed in various judgements. Where it can be seen that courts while deciding cases of similar facts, apply these factors in a non-similar way and give contrasting judgements. This can be attributed to their inherent bias which cannot be done away with and leads to the existence of a wide array of differences in punishments pronounced.

For example, in the case Dhananjoy Chatterjee v. State of West Bengal the court-imposed death penalty on the accused(aged 27) on the grounds of rape and murder. While in the case, Rameshbhai Chandubhai Rathod (2) v. State of Gujarat, case with similar facts to the Dhananjoy case (except the victim here was a child), the court acknowledged the similarity but granted life imprisonment rather than death penalty citing the young age of the accused (aged 28) as a mitigating factor, highlighting the higher chances of reformation. Then again, in 2015, the court in Purushottam Dashrath Borate v. the State of Maharashtra, the case involving the same crime of rape and murder, the court overlooked the young age of the accused and following the precedent laid in the Dhananjoy judgement, imposed the death penalty on the accused.

This inconsistency among the judgements and lack of homogeneousness on similar cases, affects the rights of the accused as well as the victims, diluting the godly idea of justice. Thus, what our current system needs is not a strict and definitive but yet a formal structured method regulating the application of such factors.

The Finnish-courts have a well-developed legal framework for handling the applicability of the mitigating and aggravating factors. They adhere to the concept of ‘linear regression’ which is further substantiated by the ‘coefficient of determination’ following which, the categorisation of crime and the quantum of subsequent sentencing is opted by percentage increase. In cases, where a joint punishment is to be awarded the percentage value of the case works as an average mean which keeps on combining to the ‘each continual progression’, giving the final joint punishment. In the case of two offences of different intensity, the percentage of the higher culpable crime is added to the one-third percentage of the lower culpable crime. This is known as the “one-third rule”. In the US, United States Sentencing Commission was established and was ordained to set guidelines relating to aggravating and mitigating factors which would be used by the judges while granting punishments for the sake of increment in transparency and just judgements by the judiciary. Such methods can be referred to by the Indian Justice system to formulate a suitable system for India for a better and fair sentencing policy.


Certain factors regulate human actions, and they should be considered well enough, which awarding or punishing her/him for the act. Similarly, the courts while granting punishments should strike a balance between these factors and then provide the sentence to ensure that the sentence provided in fair and is no injustice to the parties. Acknowledging the presence of mitigating factors may help the wrongdoer to get a chance to reform while of aggravating factor may lead the court to accept that the offences of nature of destroying the social fabric should be condemned and punished intensely to avoid their repetition in future. But the discretion to decide same cannot be blindly provided to the judges and there creeps in need for a formal structure, a legal framework addressing the same.

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