Aggravating and mitigating factors
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This article is written by Anisha Bhandari, from Institute of Law, Nirma University. This article discusses the manner in which courts rely on the factors to judge upon the punishment of the offender


Sentencing is in the manner in which the courts interact with a defendant when he or she has pleaded guilty or proven guilty, in other words, it is in what occurs at the time that the individual convicted with the crime stops to be simply ‘the victim’ and is ‘the offender.’ There is no substantive or case law concept of ‘Sentence.’ This does, of course, involve a punishment, such as a fine or a custodial term, levied by the judge on the defendant for the crime. It should also include orders imposed on the offender on conviction which can not properly be described as punishments. It has been suggested that sentencing is ‘an art not a science,’ so it must be learned by the practice of doing so, rather than approached by a set of rules.

Aggravating and mitigating circumstances

Aggravating circumstances make a felony more severe or worse. Popular aggravating factors involve a long criminal record of the offender or whether the offence inflicted significant harm to the victim.

Mitigating circumstances are facts that appear to mitigate the seriousness or penalty of a felony by rendering the actions of the criminal more reasonable or less guilty. Extenuating factors can involve the early age of the suspect, psychiatric disorder or addiction, or a small involvement in the case. Individuals often violate the rules, for example, when acting in accordance with their moral or cultural values, so this may be called an extenuating situation.

In law, the definition of extenuating conditions often referred to as mitigating circumstances, is large and can imply various things to various jurists. Often it applies primarily to the conditions that hinder the punishment process. In many cases, it applies to something short of a remedy that renders the alleged conduct of the offender less reprehensible and resulting in a less severe offence or punishment. 

Decision-makers in the criminal justice system, such as police officers, lawyers, judges, and jurors, often recognize extenuating conditions, along with certain other considerations, when determining how best to treat a situation. If an individual with an intellectual impairment steals candy from a shop, a police officer may decide not to make an arrest, a lawyer may agree not to prosecute a suspect or prosecute an individual with a less severe offence, a jury may agree not to convict or a judge can condemn the offender to a lighter penalty than the limit.

Aggravating factors

At the sentencing hearing, presentation of evidence by the prosecutor of aggravating factors would result in a harsher sentence. There exist different criminal statutes that specify the factors resulting in harsher punishments. The seriousness of the offence is judged based upon the circumstances of the case such as the gravity of the injury, usage of weapons etc. The seriousness of the offence is the prerequisite factor in deciding the length of the sentence. Some of the factors are as follows:

  • Repeat Offences – It is often argued that the court should treat the previous conviction of the offender as an aggravating factor provided the conviction before has relation to the current offence and the time has passed since the conviction. It is regarded that a sentence can be imposed considering the failure to respond to previous non-custodial sentences. 
  • Victim Vulnerability – There might be situations where the court may impose a harsher sentence based on the vulnerability of the victim. It states when an act is performed by the defendant against a child, the elderly would be considered an aggravating factor. It also involves causing mental and physical injury, disability, and illness.
  • Leadership – If the defendant played an influential role in the minds of individuals leading to the commission of offence then the court would consider it as an aggravating factor. 
  • Hate Crimes – There exist states which have enacted laws on hate crimes. Different statues have categorized hate crimes on the basis of caste, religion, gender, and national origin.  
  • The Culpability of an Offence – Intention, negligence, recklessness, and knowledge play a crucial role in determining the culpability of an offence. It is also regarded as an aggravating factor provided that the defendant has deliberately caused more harm than required and has targeted a vulnerable victim.

Mitigating factors

Production of evidence on mitigating factors would help the defence in bringing leniency in sentencing. The factors that can be considered by the judge while sentencing is:

  • The offender was coerced, threatened to commit the offence. It would not constitute a complete defence but would slightly affect the sentencing process. 
  • The involvement of the offender in the crime was a mere accessory.
  • The offender was extremely careful in carrying out the crime. 
  • It was because of provocation the act was committed.
  • A belief possessed by the defendant that he/she holds a rightful claim over the property.
  • Under the situation of necessity, the offender was forced to provide aid to his/her family.
  • With mental or physical instability at the time of the commission of offense would reduce the culpability of the offender.
  • Lack of forming a rationale judgment because of his/her age.
  • The offender under unusual circumstances committed an offense provided there does not exist sufficient intent to violate the law.

Aggravating and mitigating factors in sentencing

Study of the criminal laws of our country shows that the distribution of the sentence is left entirely to the discretion of the judges for almost all offenses and, as a result, the sentences sometimes handed down for almost the same offenses by two different judges are grossly disproportionate. Since the offenses have been defined in general terms, only maximum penalty terms have been indicated. Judges, therefore, must allocate the amount of the penalty according to the gravity or otherwise of the various offenses within the limits prescribed.

Judges face problems in situations where they have to abide by the basic principles. As a consequence, there has been a disparity in the sentences levied by various courts over specific kinds of offenses, often without recourse to the standards set down which are meant to mitigate differences. Such ideas are not specifically laid out in the Indian Penal Code, 1860, or any other substantive legislation which will have a contractual impact on judges. They have also followed specific standards with their own guidance; there is no scheme of daily judges’ conferences, variations in methods are not addressed or reconciled.

DEATH SENTENCE – The mitigating factors that are considered by the judge before executing the death sentence are:

  • That the offense was committed under the influence of extreme mental or emotional disturbance; 
  • the age of the accused; if the accused is young or old, he shall not be sentenced to death; 
  • the likelihood that the accused would not commit acts of violence as a continuing threat to society; the likelihood that the accused may be reformed and rehabilitated; 
  • The State shall prove by evidence that the conditions are not met; that the accused acted under the pressure or domination of another person and that the condition of the accused showed that he was mentally defective and that the defect had impaired his ability to appreciate the criminality of his conduct.

The death penalty is neither an unreasonable limitation on the freedom to life nor an impermissible violation of the due process on justice under Article 21 of the Constitution. The death penalty or death warrant can not be defined as new, as this kind of execution has been with us from ancient times right up to the present day. In the case of Bachan Singh, the Supreme Court was called upon to rule on the constitutional validity of the death sentence. The Constitution Bench, by a vote of 4:1, affirmed the legality of capital punishment but ruled that only in extraordinary and unusual circumstances would a death penalty be levied. The court also ruled that death penalties can be enforced in the most unusual and rarest of situations.

The Court has laid down those rules, which have been clarified in a subsequent judgment of Machhi Singh, which can be outlined as follows:

  • The severe punishment of death must not be levied except in the case of grave instances of extreme culpability;
  • Before opting for the death penalty, the circumstances of the ‘offender’ must also be taken into account, along with the circumstances of the crime;
  • Life incarceration is the law, and the death penalty is the exception. In other words, death sentences must only be imposed if life imprisonment appears to be totally inadequate, taking into account the relevant circumstances. The conditions of the offense and the likelihood of enforcing a life term must be conducted conscientiously, with respect to the extent and conditions of the offense and to all the appropriate circumstances;
  • The balance sheet of the aggravating and mitigating circumstances must be drawn up and, in doing so, the attenuating circumstances must be given full weight and a fair balance must be struck between the aggravating and the mitigating circumstances prior to the exercise of the option.

The Constitutional bench in Bachan Singh case considered the following circumstances to be aggravating circumstances which could lead to the imposition of the death penalty:

  • If the murder was committed after the previous planning and this  involves extreme brutality; or
  • where the crime requires extreme depravity; or
  • If the murder is carried out by a member of any of the armed forces of the Union or a member of any police force of any public servant.

The statutory legitimacy of the death penalty has since been questioned in the Supreme Court. In Jagmohan Singh v. The State of U.P, it was argued that the ‘right to live’ was fundamental to the freedoms guaranteed under Article 19 of the Constitution. The Supreme Court dismissed the claim and ruled that capital punishment should not be considered as unreasonable in itself or not in the general interest and thus should not be assumed to be in breach of Article 19 of the Constitution.

In certain instances, the exceptionally barbaric or bestial conduct of the murder is itself a displayed indicator of the depraved nature of the suspect. Therefore, it is not appropriate to find the conditions of the offense and the conditions of the perpetrator in two different watertight compartments. In a nutshell, assassination is evil, and hence all killings are evil. Yet this brutality may differ in its degree of remorse because it is only where shame occupies the proportion of utter depravity that “special motives” may reasonably be assumed to occur. Numerous other situations support the passing of a shorter sentence; because there are countervailing conditions of aggravation. It can not be overemphasized that the scope and concept of mitigation factors in the area of the death penalty must be liberally and extensively constructed by the courts in accordance with the policy on sentencing set out in Section 354(3) Criminal Procedure Code.

In order to enforce the principles set out in the case of Bachan Singh, inter alia, the following questions must be raised and answered: (a) Is there something peculiar about an offense that makes life imprisonment ineffective and calls for a death sentence? (b) Are the conditions of the offense such that there is no choice but to enforce the death penalty even though, according to the highest weightage given to the mitigating factors that function in favour of the offender?

When having a general view of all the situations in the context of the above-mentioned proposition and taking into consideration the responses to the concerns posed above, the conditions of the case are such that the death penalty is warranted, the court will continue to do so.

Difference between aggravating and mitigating factors

Aggravating factors, which are facts or factors that could lead a court to believe that an act was more harmful or more transgression than those facts might be lacking. Many of the aggravating factors are defined by the law in any jurisdiction, while most of the mitigating factors are a matter of fairness or judicial discretion.

Let’s assume that you’re trying to rob somebody. If you do that without a target, that’s a robbery type. If you do the very same thing with a pistol, that’s an aggravating situation, so you could fall into a separate type of robbery.

Many important aggravating factors include the age of the victim, whether the perpetrator was a police officer or a civil official, previous criminal background, extent of premeditation and preparation, or certain considerations that might cause the court to levy a greater sentence due to the egregious nature of the offense.

On the other hand, mitigating circumstances under the law are facts or factors that could lead a court or a finding of fact to believe that the act was less harmful or less of a transgression than those facts might be lacking.

For example, you’re speeding up getting your friend to the hospital because he’s having chest pain. The police officer pulls you over, gives you a ticket, and sends you on your way quickly. It turns out that your friend just had a severe case of indigestion, but neither of you knew that at the time. In court, you would argue that while you were actually speeding up, the mitigation factor of fear that your friend was having a heart attack should excuse the act altogether or minimize the penalty.


Balancing is what is expected when an offender is convicted. The balancing has to be done between the rights of the accused and the needs of society at large. It would also be a daunting challenge to preserve the trust of citizens when using the authority of the courts to convict or execute. To evaluate it is also a daunting thing for the convicted to be guilty and therefore executed with a proper penalty without any foolproof method. The sentence handed down to the convict should be appropriate and not inconsistent with the brutality with which the crime has been committed. If the death penalty is not applied even in the case of cold-blooded murders, the theories of punishment, whether dissuasive, preventive or retributive, will lose their relevance.


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