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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs.1352-1353 OF 2012

Birju …. Appellant

Versus

State of M.P.      …. Respondent

J U D G M E N T

K.S. Radhakrishnan, J.

1. We are, in this case, concerned with the killing

of a child aged one year who was in the arms of PW1,

the grand-father, for which the accused was awarded

death sentence by the trial court, which was affirmed

by  the  High  Court  and  these  appeals  have  been

preferred  by  the  accused  against  the  judgment  of

conviction  and  sentence  awarded  to  him  for  the

offences under Section 302 of the Indian Penal Code,

read with Section 27 of the Arms Act, 1959.

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2. The prosecution case, in short, is as follows:

PW1,  the  complainant  was standing  at  the  grocery

shop of Kamal Bansal (PW2) on 13.12.2009 at about

8.15 PM for purchasing some goods.  He was holding

his  grandson,  Arman,  aged  one  year  in  his  arms.

PW4, Jagdish, was also standing in front of the said

shop.   The  accused-Birju,  resident  of  the  same

locality,  known  as  Rustam  Ka  Bagicha,  came  out

there on a motorcycle.  After parking the motorcycle,

he went to Babulal and questioned him as to why he

was standing there.  Babulal replied that he had come

to  purchase  some  kirana.   While  so,  the

accused-appellant demanded Rs.100/- for consuming

liquor.   Babulal  expressed  his  inability  to  give  the

money,  on  which,  the  accused  abused  him  in  the

name  of  his  mother  and  took  out  a  country  made

pistol from his pocket and shot, which hit on the right

temporal  area  of  infant-Arman.   Persons  of  the

locality,  which  included  Rakhi,  daughter  of  the

complainant,  her  aunt-in-law  Sharda  Bai  and  few

other inhabitants of the area, reached the spot after

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hearing  the  sound.   Son-in-law of  the  complainant,

Jeevan,  took  Arman  to  the  hospital  and  PW1

immediately reached the police station and lodged the

first information report.

3. PW 12, the Station House Officer, reached the

spot  and prepared a spot map (Ext.P/2) and seized

the blood stained shirt  of  complainant  Babulal  vide

seizure memo (Ext.P/3).  Empty cartridge, motorcycle

and used bullet were seized from the spot vide seizure

memo  (Ext.P/6).   Inquest  report  (Ext.P/8)  was

prepared on the dead body, which was then sent for

post-mortem examination.  PW10 Dr. A.K. Langewar

conducted the post-mortem examination.

4. The  accused  was  later  nabbed  and  from  his

possession  pistol  was  recovered  and  seized  articles

were  sent  for  examination  to  the  Forensic  Science

Laboratory,  Tamil  Nadu  vide  Ext.P/18-A.   The

investigation  officer  recorded  the  statements  of

witnesses  and  completed  the  investigation  and  the

accused was charge-sheeted under Sections 302, 327

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and 398 of  the IPC and Sections 25 and 27 of  the

Arms Act, 1959.

5. The  prosecution  examined  12  witnesses  and

produced 19 documents and none was examined on

the side of the defence.   

6. As already indicated, after appreciating the oral

and documentary evidence, the trial court found the

accused guilty and held that the case of the accused

falls  under  “rarest  of  rare”  category  and  awarded

capital punishment, which was affirmed by the High

Court.  The accused was also convicted under Section

27 of  the  Arms Act  and was  sentenced  to  rigorous

imprisonment for three years and a fine of Rs.1000/-,

which was also affirmed by the High Court.

7. Mr.  Rana  Ranjit  Singh,  learned  counsel

appearing for the appellant, submitted that the case

on hand is not the one which falls in the category of

“rarest  of  rare”  warranting  capital  punishment.

Learned counsel  pointed out  that  even if  the  entire

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prosecution  case  is  accepted,  the  offence  would  be

covered  under  Section  304  Part  II  IPC.   Learned

counsel  also  pointed  out  that  the  accused  had  no

intention to kill either PW1 or the child.  The accused,

at  best,  was  under  extreme  mental  or  emotional

disturbance and there will be no occasion for him to

indulge in similar offence in future, and the possibility

of  accused  being  reformed  could  not  be  ruled  out.

Learned counsel  also  submitted that  the  trial  court

and  the  High  Court  have  committed  an  error  in

awarding the death sentence on the ground that the

accused was involved in various other criminal cases

which,  according  to  the  counsel,  cannot  be  an

aggravating factor to be taken into consideration for

the purpose of awarding the death sentence.    

8. Mr.  C.D. Singh,  learned counsel  appearing for

the  State,  on  the  other  hand,  pointed  out  that  the

prosecution has proved the  case beyond reasonable

doubt.   Learned counsel  referred to  the evidence of

PW4 and PW7 and stated that they were eye-witnesses

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to the incident and there is no reason to discard their

oral  evidence.   Learned  counsel  submitted  that  the

murder was committed in cold blooded manner and

evidence on record clearly shows that the accused has

absolutely  no  regard  for  the  life  or  limb  of  others.

Learned  counsel  also  submitted  that  there  is  no

probability  of  reformation  or  rehabilitation  of  the

accused.  Learned counsel also submitted that, in the

instant  case,  crime test,  criminal  test  and R-R test

have  been fully  satisfied  and there  is  no  reason  to

interfere with the death sentence awarded by the trial

court and affirmed by the High Court.

9. PWs 1 to 4 and 7 fully and completely supported

the case of the prosecution.  PW1, the grand-father of

the  child,  PWs  2,  3,  4  and  7  have  depicted  an

eye-to-eye  picture  of  what  transpired  on the  fateful

day.   Their version is consistent and highly reliable.

Eye  witnesses’  version  is  fully  corroborated  with

post-mortem and FSL reports.   PW6, of course, has

been declared as hostile, but the evidence of a hostile

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witness  cannot  be  discarded  as  a  whole  and  the

relevant  parts  thereof,  which are admissible  in law,

can be used, either by the prosecution or the defence.

Reference may be made to the judgment of this Court

in  C.  Muniappan  and  Others  v.  State  of  Tamil

Nadu (2010) 9 SCC 567.  PW6, in his statement under

Section 164 Cr.P.C. has stated that, on the date of the

incident,  he heard PW1 shouting “goli mar di”, “goli

mar  di”,  which  indicates  that,  to  that  extent,  the

statement supports the prosecution.    The incident,

as already stated, happened in front of a grocery shop

at  about  8.15  PM  on  13.12.2009  when  PW1  was

standing  in  front  of  the  grocery  shop  of  PW2.

Accused,  at  that  time,  reached  the  spot  and

demanded Rs.100/-, which PW1 refused to pay and,

for that sole reason, he took out the pistol from his

pocket  and  shot,  which  hit  the  temporal  region  of

Arman, aged one year and he died.   

10. Motive for committing the murder was evidently

for  getting  the  money to  consume liquor  for  which,

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unfortunately,  a  child  of  one  year  became  the

casualty.   The  country  made  pistol  used  for

committing  the  offence  was subsequently  recovered.

PW10, who conducted the post-mortem on the dead

body  of  the  child,  noticed  various  injuries  and

reiterated  that  the  bullet  had  pierced  through  the

meningeal  membranes  and  both  the  lobes  of  the

brain.   PW10  Doctor  opined  that  the  wound  was

caused by firearm and the deceased died within 24

hours of post-mortem examination.  The prosecution

has successfully  proved the cause of  death and the

use of the firearm by the accused and we fully concur

with the findings of  the  trial  court,  affirmed by the

High Court that offences under Section 302 IPC and

Section 27 of  the Arms Act,  1959, have been made

out.   

 11. We  are  now  concerned  with  the  question

whether the case falls under the category of “rarest of

rare”, warranting the death sentence.

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12. We have held in  Shankar Kisnrao Khade v.

State of Maharashtra (2013) 5 SCC 546 that even if

the  crime  test  and  criminal  test  have  been  fully

satisfied,  to  award  the  death  sentence,  the

prosecution  has  to  satisfy  the  R-R  Test.   We  have

noticed that one of the factors which weighed with the

trial court as well as the High Court to award death

sentence to the accused was his criminal antecedents.

The  High  Court  while  dealing  with  the  criminal

antecedents of the accused stated as follows:

“14. The  appellant  is  having  criminal antecedent,  which  is  clear  from  the statement  of  investigating  officer  (PW-12) Mohan Singh in paragraph 12, wherein he has deposed that the appellant is a notified bully in the concerned police station and as  many  as  24  criminal  cases  were registered against him by the police, out of which three cases of murder and two were attempt  to  commit  murder.   In  all  these cases,  after  investigation,  appellant  was charge sheeted for trial before the court of law. In cross-examination,  this statement has  been  challenged  by  the  defence.  In paragraph 13 only question was put to this witness that  along with the charge sheet list  of  criminal  cases  were  not  filed,  on which  witness  replied  that  same  is available  in  the  case  diary.   After  this answer, counsel for the appellant did not ask the Court to verify this fact and also

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no  suggestion  was  given  to  this  witness that appellant was not facing prosecution in all the above mentioned criminal cases. These  facts  are  sufficient  to  hold  that appellant  was  fully  aware  about  the  use and consequence of the deadly weapon like pistol,  and  when  his  demand  was  not satisfied; he used the same intentionally to commit  murder  of  child,  Arman.   The injuries  show  that  pistol  was  fired  very accurately and bullet pierced through and through at  the vital  part  of  the body i.e. skull.   When appellant was using firearm for  causing  injury  to  infant  Arman,  he must  be  knowing  the  consequence  that because  of  use  of  such  deadly  weapon, there would be no chance for survival of a child aged one year.”

13. Further, the High Court also, after referring to

the  various  cases,  where  this  Court  had  awarded

death sentence, considered the present case as rarest

of rare one and stated as follows:

“26.In the light of aforesaid legal position for  considering  whether  the  instant  case falls within the category of  rarest in rare case,  we  visualize  the  following circumstances :-

i) The offence was not committed under the  influence  of  extreme  mental  or emotional disturbance.

ii) Appellant is a quite matured person aged about 45 years.  He is neither young nor old.

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iii) Looking  to  his  criminal  antecedent i.e.  he  was  charge  sheeted  for commission of 24 criminal cases, out of which 3 were under Section 302 of “the IPC” and 2 were under Section 307 of “the IPC”, therefore, there is no probability  that  the  accused  would not commit acts of violence in future and his presence in society would be a continuing threat to society.

iv) There is no probability or possibility of reformation or rehabilitation of the appellant.

v) In the facts and circumstances of the present  case,  accused/appellant cannot  morally  justify  the commission of  murder of  child aged one year by him.

vi) There is no direct or indirect evidence available  to  say  that  accused  acted under  the  duress  or  domination  of another person.

vii) The  condition  of  appellant/accused was not such, which may show that he  was  mentally  defective  and  the said  defect  impaired his  capacity  to appreciate  the  criminality  of  his conduct.

viii) It  is  purely  a  cold  blooded  murder and  evidence  on  record  clearly showing  the  fact  that  appellant  has absolutely no regard for life and limb of others.”

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14.   One of the factors which weighed with the High

Court  to  affirm  the  death  sentence  was  that  the

accused was charge-sheeted for commissioning of 24

criminal cases, out of which three were under Section

302  IPC  and  two  were  under  Section  307  IPC,

consequently,  the  Court  held  that  there  was  no

probability that the accused would not commit the act

of  violence  in  future  and  his  presence  would  be  a

continuing threat to the society.  The Court also took

the view that there was no possibility or probability of

reformation or rehabilitation of the accused.

15. We have in  Shankar Kisanrao Khade’s  case

(supra)  dealt  with  the  question  as  to  whether  the

previous criminal record of the accused would be an

aggravating  circumstance  to  be  taken note  of  while

awarding  death  sentence  and  held  that  the  mere

pendency of  few criminal  cases,  as such,  is  not  an

aggravating  circumstance  to  be  taken note  of  while

awarding  death  sentence,  since  the  accused  is  not

found  guilty  and  convicted  in  those  cases.   In  the

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instant  case,  it  was  stated,  that  the  accused  was

involved in 24 criminal cases, out of which three were

registered  against  the  accused  for  murder  and  two

cases  of  attempting  to  commit  murder  and,  in  all

those cases, the accused was charge-sheeted for trial

before  the  court  of  law.   No  materials  have  been

produced before us to show that  the accused stood

convicted in any of  those cases.   Accused has only

been charge-sheeted and not  convicted,  hence,  that

factor is not a relevant factor to be taken note of while

applying  the  R-R  test  so  as  to  award  capital

punishment.  May be, in a given case, the pendency of

large number of  criminal  cases against the accused

person might be a factor which could be taken note of

in  awarding  a  sentence  but,  in  any  case,  not  a

relevant factor for awarding capital punishment. True,

when there are more than two dozen cases, of which

three relate to the offence of murder, the usual plea of

false implication by the defence has to be put on the

back seat, and may have an impact on the sentencing

policy, since the presence of the accused could be a

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continuing threat to the society and hence calls  for

longer period of incarceration.   

16. We  also  notice,  while  laying  down  various

criteria in determining the aggravating circumstances,

two aspects, often seen referred to in  Bachan Singh

v. State of Punjab (1980) 2 SCC 684, Machhi Singh

and others   v.  State of Punjab (1983) 3 SCC 470

and  Rajendra  Pralhadrao  Wasnik v.  State  of

Maharashtra (2012) 4 SCC 37, are (1) the offences

relating  to  the  commission  of  heinous  crime  like

murder, rape, armed dacoity, kidnapping etc. by the

accused with a prior record of conviction for capital

felony or offences committed by the person  having a

substantial  history of  serious assaults  and criminal

conviction; and (2)  the offence was committed while

the  offender  was  engaged  in  the  commission  of

another  serious  offence.   First  criteria  may  be  a

relevant factor while applying the R-R test, provided

the offences relating to heinous crimes like murder,

rape, dacoity etc. have ended in conviction.  

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17. We  may  first  examine  whether  “substantial

history of serious assaults and criminal conviction” is

an  aggravating  circumstance  when  the  court  is

dealing  with  the  offences  relating  to  the  heinous

crimes like  murder,  rape,  armed docoity  etc.   Prior

record of the conviction, in our view, will be a relevant

factor,  but  that  conviction  should  have  attained

finality so as to treat it as aggravating circumstance

for awarding death sentence.  The second aspect deals

with  a  situation  where  an  offence  was  committed,

while the offender was engaged in the commission of

another serious offence.   This is a situation where the

accused  is  engaged  in  the  commission  of  another

serious offence which has not ended in conviction and

attained finality.    

18. In the instant case, the Court took the view that

there was no probability that the accused would not

commit criminal acts of violence and would constitute

a continuing threat to the society and there would be

no probability that the accused could be reformed or

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rehabilitated.   In  Shankar Kisanrao Khade’s  case

(supra),  while  dealing  with  the  criminal  test

(mitigating circumstances), this Court noticed one of

the circumstances to be considered by the trial Court,

while applying the test, is with regard to the chances

of  the  accused  not  indulging  in  commission  of  the

crime again and the probability of the accused being

reformed and rehabilitated.   We find, in several cases,

the  trial   Court  while  applying  the  criminal  test,

without  any material  on hand,  either  will  hold that

there would be no possibility of the accused indulging

in commission of crime or that he would indulge in

such offences in future and, therefore, it would not be

possible to reform or rehabilitate him.  Courts used to

apply reformative theory in certain minor offences and

while  convicting  persons,  the  Courts  sometimes

release the accused on probation in terms of Section

360 Cr.P.C. and Sections 3 and 4 of the Probation of

Offenders Act, 1958.   Sections 13 and 14 of the Act

provide for appointment of Probation Officers and the

nature of duties to be performed.  Courts also, while

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exercising  power  under  Section  4,  call  for  a  report

from  the  Probation  Officer.   In  our  view,  while

awarding  sentence,  in  appropriate  cases,  while

hearing  the  accused  under  Section  235(2)  Cr.P.C.,

Courts can also call for a report from the Probation

Officer, while applying the Crime Test guideline No.3,

as laid down in  Shankar Kisanrao Khade’s  case

(supra).  Court can then examine whether the accused

is  likely  to  indulge  in  commission  of  any  crime  or

there is any probability of the accused being reformed

and rehabilitated.  

19. We have no doubt in our mind that the accused

had  the  full  knowledge,  if  he  fires  the  shot  on  the

temporal area, that is between the forehead and the

ear, it would result in death of the child of one year

who was in the arms of PW1.  Appellant, of course,

demanded Rs.100/- from PW1, which he refused and

then  he  took  out  the  pistol  and  fired  at  the  right

temporal  area  of  the  child,  as  retaliation  of  not

meeting  his  demand  and  there  is  nothing  to  show

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that,  at  the time of  the incident,  he was under the

influence of liquor.  Consequently, while affirming the

conviction,  we  are  not  prepared  to  say  that  it  is  a

rarest  of  rare  case,  warranting  capital  punishment.

We, therefore, set aside the death sentence awarded

by the trial Court and affirmed by the High Court, and

convert the same to imprisonment for life.   

20. We are, however,  of  the view that this is a fit

case where we can apply the principle laid down in

Swami  Shraddanand  (2)  alias  Murli  Manohar

Sharma v.  State of Karnataka (2008) 13 SCC 767.

In that case, this Court took the view that there is a

third  category  of  cases  in  which  Court  can,  while

awarding the sentence for imprisonment of life, fix a

term  of  imprisonment  of  14  or  20  years  (with  or

without remission) instead of death penalty and can,

in appropriate cases, order that the sentences would

run  consecutively  and  not  concurrently.  Above

sentencing policy has been adopted by this Court in

several  cases,  since  then,  the  latest  being  Gurvail

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Singh v. State of Punjab  (2013) 10 SCC 631.  We

have indicated that this a case where the accused is

involved in twenty four criminal cases, of which three

are  for  the  offence  of  murder  and  two  are  for

attempting to commit murder. In such circumstances,

if the appellant is given a lesser punishment and let

free, he would be a menace to the society.   

21. We are of the view that this is a fit case where

20 years of rigorous imprisonment, without remission,

to the appellant, over the period which he has already

undergone, would be an adequate sentence and will

render substantial justice.  Ordered accordingly.   

22. The appeals stand disposed of as above.

……..……………………J. (K.S. Radhakrishnan)

……..…………………… J.

(Vikramajit Sen) New Delhi, February 14, 2014.