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Supreme Court of India· 24 September 2026

Can a sentencing court assess the criminal test at zero while considering whether to impose the sentence of death?

WARIS v. THE STATE OF MADHYA PRADESH
2026 INSC 1050 · CRIMINAL APPEAL NOS. 429-430/2020
Coram: Justice Vikram Nath · Justice Sandeep Mehta · Justice Vijay Bishnoi
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Answer

A sentencing court cannot assess the criminal test at zero while considering whether to impose the sentence of death.

No. Declining to weigh at all is, in truth, what a sentencing court does when it assesses the criminal test as zero, since it treats the crime's gravity as discharging the court from considering the criminal — which is almost never true of anyone. Bachan Singh's command is that the crime be weighed together with the criminal; a court giving the criminal zero weight disobeys that command.

Headnote

Constitution of India — Article 21 — Indian Penal Code, 1860 — s.302 — s.376AB — Protection of Children from Sexual Offences Act, 2012 — ss.5-6 — Sentencing — Rarest of rare — Intermediate sentence — Indian Penal Code, 1860 — s.302 — Bachan Singh — Crime test and criminal test — Held: A sentencing court cannot assess the criminal test at zero while considering whether to impose the sentence of death; Bachan Singh commands that the crime be weighed together with the criminal, and a court assigning zero weight to the criminal disobeys that command. (¶182) Indian Penal Code, 1860 — s.302 — Burden on the State — Reformation — Held further: The State must establish that a convict is beyond reformation before the sentence of death can be sustained; where the State leads no such evidence, the possibility of reformation cannot be said to be excluded, and the alternative of life imprisonment is not foreclosed. (¶188, 190) Indian Penal Code, 1860 — s.302 — Union of India v. V. Sriharan — Intermediate sentence — Held further: The sentence of death is not the only adequate sentence where an intermediate sentence of imprisonment for the remainder of the convict's natural life without remission would meet the ends of justice. Death sentence commuted; conviction affirmed. (¶197, 203) Code of Criminal Procedure, 1973 — s.391 — s.367 — Cure of defective cross-examination — Held further: A defect in the cross-examination of a principal witness by counsel with no opportunity to prepare can be cured by this Court directing further cross-examination, rather than requiring a fresh trial. (¶24, 26)

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In the Court's own words
Paragraph 182It is necessary to begin by correcting the approach upon which the High Court proceeded. The High Court, in confirming the sentence of death, assessed what it described as the crime test at one hundred per cent and the criminal test at zero per cent. With respect, a criminal test assessed at zero is a proposition that can seldom be sustained, and it cannot be sustained in the present case. To assess the criminal test at zero is to assert that there is nothing whatever to be said on the side of the offender, that the balance sheet on his side is wholly blank. That is almost never true of any human being, and it is not true of the appellant, whose childhood deprivation, absence of prior convictions, satisfactory conduct in custody and other circumstances we have set out and accepted as genuine mitigation. A sentencing court that reduces the criminal test to zero has, in truth, declined to perform the weighing at all, for it has treated the gravity of the crime as though it discharged the court from the duty of considering the criminal. The error is not a mere infelicity of expression. It is the very error against which the whole of the sentencing jurisprudence of this Court has set its face, for the essential command of Bachan Singh (Supra) is that the criminal be weighed together with the crime, and a court that assigns the criminal a weight of zero has disobeyed that command. We therefore do not adopt the approach of the High Court, and we proceed to weigh the mitigation that genuinely exists against the aggravation that we have found.
Acts & Sections
s.302 Indian Penal Code, 1860s.376AB Indian Penal Code, 1860s.376(2)(f) Indian Penal Code, 1860s.376(2)(n) Indian Penal Code, 1860s.201 Indian Penal Code, 1860s.5 Protection of Children from Sexual Offences Act, 2012s.6 Protection of Children from Sexual Offences Act, 2012s.42 Protection of Children from Sexual Offences Act, 2012s.391 Code of Criminal Procedure, 1973s.367 Code of Criminal Procedure, 1973

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Also decided in this judgment
Must the State establish that a convict is beyond reformation before the sentence of death can be sustained?Is the sentence of death the only adequate sentence where an intermediate sentence would meet the ends of justice?Can a defect in the cross-examination of a principal witness by counsel with no opportunity to prepare be cured by directing further cross-examination?
Plain-language answer prepared by the LexStreak Editorial Desk — verify against the judgment. Source: Supreme Court of India. Corrections