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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 143 OF 2007

OMA @ Omprakash & Anr. .. Appellant(s)

Versus

State of Tamil Nadu        ..  

Respondent(s)

J U D G M E N T

K. S. Radhakrishnan, J.

1. Appellants, herein, were awarded death sentence by the trial  

court after having found them guilty under Sections 395, 396 and  

397 of Indian Penal Code (for short ‘IPC’).  They were sentenced  

to death by hanging under subsection 5 of Section 354 of Criminal  

Procedure Code for offences committed under Section 396 IPC.  

The trial court after noticing that, the accused persons came from  

a State about 2000 k.m. away from Tamil Nadu,  held as follows:

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“In this case, the accused came from a state about  2000 k.m. from our state and they did not think that  the  victims  were  also  human  like  them  but  they  thought only about the well being of their family and  their  own  life  and  committed  the  fear  of  death  amongst  the  common  public  of  our  state  by  committing robbery and murder for about 11 years.  Therefore, this court is of the opinion that the death  sentence  that  would  be  imposed  on  them  would  create  a  fear  amongst  the  criminals  who  commit  such crime and further this case is a rarest of rare  case that calls for the imposition of death sentence.”

2. We have noticed that the trial Court, among other grounds,  

was also influenced by a speech made by the then Chief Justice of  

Tamil Nadu as well as a judgment delivered by another learned  

Judge  of  Madras  High  Court  on  rowdy  panchayat  system.  

Following that judgment and the provision under Section 396 IPC,  

the trial court held that the accused deserves no sympathy and  

he be sent to the gallows.

3. The trial  court  then placed the  matter  before the  Madras  

High Court for confirmation of the death sentence awarded to the  

accused persons.  Meanwhile, the accused persons also preferred  

criminal  appeal  No.  566  of  2006  against  the  award  of  death  

sentence.  The appeal was partly allowed and conviction against

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Accused Nos. 1 and 2 under Sections 395, 396 and 397 IPC were  

confirmed but the sentence under Section 396 IPC was modified  

to that of life imprisonment instead of death sentence.  Against  

which, accused Nos. 1 and 2 came up with this appeal.  While this  

appeal was pending, the first appellant (A1) died and the second  

appellant (A2) has prosecuted this appeal.   

4. The prosecution case is as follows:

The  appellants  and  nine  other  absconding  accused  persons  

entered the house of one Lakshmi (PW 2) at 1 O’ clock in the  

night of 07.06.1995 with the intention of committing burglary with  

iron  rods  in  their  hands  and  burgled  17  tolas  of  gold  and  

Rs.5,000/- in cash.  In that process, it was alleged that they had  

strangulated Doctor Mohan Kumar, husband of PW 2 with a rope  

and thereby killed him.  It was alleged that the accused assaulted  

PW 2, her son Sudhakar (PW 5) and other son Sakthivel (PW 6).  

While escaping, they had also attacked Bormin Varghese (PW 1)  

with iron rod.  FIR Cr. No. 403 of 1995 under Sections 396, 397  

IPC was registered at 5.30 am on 07.06.1995 at Police Station  

Walajapet on the statement of one Patrick Varghese recorded by

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PW 7.  Post Mortem of the deceased was conducted at 2.30 p.m.  

on 07.06.1995.

5. The prosecution could not nab the accused persons for over  

ten years.   A2 was arrested on 26.02.2005 in connection with  

some other case in Cr. No. 59 of 1996.  It is the prosecution case  

that his finger prints tallied with the ones lifted from the place of  

occurrence in that other case.  Further, it was also stated, as per  

the investigation, A2 made a disclosure and pursuant to that the  

iron rod (M.O. 1) used 10 years back was recovered.

6. A1  was  arrested  on  21.09.2005  by  the  special  team  in  

connection with some other case in Cr.  No. 352 of 2004 of Sri  

Perumbatoor  Police  Station.   An  identification  parade  was  

conducted so far as A1 is concerned on 20.10.2005 in which PW  

10, Karthik an Auto Driver said to have identified A1.  Later, the  

charge-sheet  was  filed  by  PW  15  on  23.12.2005  and  charges  

under Sections 395, 396 and 397 IPC were framed against the  

accused persons on 24.03.2006.

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7. The prosecution examined 15 witnesses to prove the case  

against the accused persons.  Statements of the accused persons  

were recorded under Section 313 Cr.P.C. on 17.04.2006.

8. The  trial  court,  as  already  indicated,  convicted  both  the  

accused persons on 21.04.2006 for the offences under Sections  

395, 396 and 397 IPC.  The trial court granted life imprisonment  

under Section 395 and fine of Rs.1,000/- and they were sentenced  

to death for the offence under Section 396 IPC.  They were also  

sentenced for RI for 7 years under Section 397 IPC.  

9. The High Court, as already indicated, vide judgment dated  

27.07.2006 converted the sentence of death to life imprisonment  

under Section 396 IPC and rest of the sentence on other heads  

were confirmed.

10. Shri Sanjay Jain, learned counsel appearing for the appellant  

(A2)  submitted  that  the  trial  court  and  the  High  Court  had  

committed  a  grave  error  in  convicting  the  accused  persons.  

Learned counsel challenged his conviction mainly on two grounds:  

one on the ground of non-conducting the identification parade so

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far  as  accused No.2  is  concerned and other  on the ground of  

recovery of alleged iron rod.  Learned counsel submitted that A2  

was arrested  after  ten years  of  incident  and was  not  properly  

identified  by  any  of  the  witnesses.   Learned  counsel  also  

highlighted the contradictions in the evidence of PW1, PW2 and  

PW15  and  brought  out  the  lacuna  in  the  evidence  of  those  

witnesses.  It was pointed out that the identification parade was  

conducted only in respect of A1 who is no more and so far as A2  

is concerned, no identification parade was conducted.  Further, it  

was pointed out that the photograph of the appellant was shown  

to PW 1 which was marked with the objection of  the accused.  

Further, learned counsel pointed out that none of the witnesses in  

their deposition had stated that they could identify A2.  Learned  

counsel pointed out that it was the prosecution case that a rod  

was used for committing the crime but was not recovered and the  

one alleged to have recovered had nothing to do with the crime.  

Learned counsel submitted that the prosecution miserably failed  

to prove the case against the appellant beyond reasonable doubt  

and that this is a fit case where this Court should have given the  

benefit of doubt and the accused be acquitted.  

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11. Shri  C.  Paramasivam,  learned  counsel  appearing  for  the  

State submitted  that  the High Court  has  rightly  confirmed the  

conviction  of  the  appellant  and  reduced  the  sentence  to  life  

imprisonment.  Learned counsel submitted that there is no fixed  

rule  with  regard  to  the  period  within  which  test  identification  

parade be held.  Further, it was pointed out that no motive was  

alleged against the prosecution for the delay in conducting test  

identification parade.  Learned counsel also submitted that even  

in the absence of test identification parade, the identification of  

accused persons by the witnesses in court is a substantive piece  

of evidence.  Further,  it  was also pointed out that the gang of  

dacoits from Haryana and Rajasthan States used to come down to  

state of Tamil Nadu and commits heinous crimes like dacoity and  

murder  and  after  arrest  of  those  accused  persons,  several  

undetected  cases  could  be  detected  and  few  of  the  accused  

persons have been convicted.  Learned counsel submitted that  

the  trial  court  and  the  High  Court  have  rightly  convicted  the  

accused persons relying on the evidence of PW 1, PW 2, PW 5 and  

PW 10.

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12. We are unhappy in the manner in which Sessions Court has  

awarded death sentence in the instant case.  The tests laid down  

by this Court for determining the rarest of rare cases in Bachan  

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

& Ors. v. State of Punjab (1983) 3 SCC 470 and other related  

decisions like  Jagmohan Singh v. State of U.P. (1973) 1 SCC  

20,  were  completely  overlooked  by  the  Sessions  Court.   The  

Sessions  Court  had  gone  astray  in  referring  to  the  views  

expressed  by  the  then  Chief  Justice  of  Madras  in  a  lecture  

delivered  at  Madurai,  which  advice  according  to  the  Sessions  

Judge was taken note of by another learned Judge in delivering a  

judgment in rowdy panchayat system.  Sessions Judge has stated  

that he took into consideration that judgment and the provision in  

Section 396 of the Indian Penal Code to hold that the accused had  

committed the murder and deserved death sentence.   Further,  

the  trial  court  had  also  opined  that  the  imposition  of  death  

sentence under Section 396 IPC is the only weapon in the hands  

of the judiciary under the prevailing law to help to eliminate the

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crime  and  the  judgment  of  the  trial  court  should  be  on  that  

ground.   

13. It is apposite to refer to the special reasons which weighed  

with the Sessions Judge to award the death sentence which reads  

as follows:

“36. In this case, it has been decided by this court  to  impose  the  maximum  sentence  of  death  to  be  imposed on the accused No. 1 and 2, under Section 396  of the Indian Penal Code, under Section 354(3) of the  Criminal  Procedure  Code,  the  special  reasons  for  awarding such sentence to be given show that the case  is a case of rarest of rare cases.  Therefore, this court  gives the following reasons:

(a) xxx xxx xxx

(b) Before the enactment  of  Criminal  Procedure  Code,  many  years  ago,  civilization  has  come  into existence.  From the rule of Kingdom to the  rule  of  people  and  the  democracy  and  constitution  came  into  existence  in  many  countries.   In these circumstances, the death  sentence  is  prevailing  in  all  the  countries  in  different from and that sentence is imposed on  such criminal who deserves for the same.  We  all  know that more particularly in the court in  like  America,  the  sentence  like  ‘lynching’ has  attained  the  legal  form  and  given  to  the  deserving  criminals  and in  Arab countries  the  law  provide  for  imposing  sentence  like  ‘slashing’,  ‘beheading’  taking  the  organ  for  organ like ‘eye for eye’, ‘tooth for tooth’.  The  above mentioned facts are the development of

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criminal jurisprudence.  Therefore, this court is  of the opinion that it is proper to impose death  sentence to the accused in this case.

(c) xxx xxx xxx

(d) xxx xxx xxx

(e) In this case, the accused came from a State  about 2000 k.m. from our State and they did not think  that the victims were also human like them but they  thought  only  about  the  wellbeing of  their  family  and  their own life and committed the fear of death amongst  the common public of our State by committing robbery  and murder for about 11 years.  Therefore, this court is  of the opinion that the death sentence that would be  imposed  on  them  would  create  a  fear  amongst  the  criminals who commit such crime and further this case  is a rarest of rare cases that call for the imposition of  death sentence.   

(f) The honorable Chief Justice of High Court of  Madras, Justice A. P. Shah while delivering a lecture at  Madurai said strict laws should be enacted as regard to  Child  abuse  and  the  persons  committing  the  crime  should be punished accordingly.  This advise was taken  note of  the honorable Justice Karpagavinayagm while  delivering a judgment on rowdy panchayat system.  He  ordered that the government should enact suitable law  to eliminate this menace.   Taking this judgment into  consideration and that there is a provision in Section  396 of the Indian Penal Code that the people involved  in  dacoity  can  be  imposed  with  death  sentence,  the  accused who have committed the murder without any  pity deserve to be imposed with the death sentence.  This court is also of the opinion that the imposition of  death sentence under Section 396 of the Indian Penal  Code is the only weapon in the hands of the judiciary  under the prevailing law to help to eliminate the crime.

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Accordingly this judgment should be.   Therefore,  this  court is of the view that the death sentence should be  imposed on the accused.”

(emphasis added)

14. We cannot countenance any of the reasons which weighed  

with the Sessions Judge in awarding the death sentence.  Reasons  

stated in para 36(b) and (e) in awarding death sentence in this  

case exposes the ignorance of the learned judge of the criminal  

jurisprudence of this country.   

15. Section 354(3) of the Code states whenever a Court awards  

death sentence,  it  shall  record  special  reasons.   Going by  the  

current penological thought, imprisonment of life is the rule and  

death sentence is  an exception.   The legislator’s intent behind  

enacting Section 354(3) clearly demonstrates the concern of the  

legislature.   This  principle  has  been  highlighted  in  several  

judgments  of  this  Court  apart  from  the  judgments  already  

referred to.  Reference may also be made to few of the judgments  

of this Court, such as  Ronal James v. State of Maharashtra,  

(1998) 3 SCC 625; Allauddin Mian v. State of Bihar, (1989) 3  

SCC 5; Naresh Giri v. State of M.P., (2001) 9 SCC 615 etc.   We

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are disturbed by the casual approach made by the Sessions Court  

in awarding the death sentence.  The ‘special reasons’ weighed  

with the trial judge to say the least, was only one’s predilection or  

inclination  to  award  death  sentence,  purely  judge-centric.  

Learned judge has not discussed the aggravating or mitigating  

circumstances  of  this  case,  the  approach  was  purely  ‘crime-

centric’.   

16. We are really surprised to note the “special reasons” stated  

by the trial judge in para 36(b) of the judgment.   We fail to see  

why we import the criminal jurisprudence of America or the Arab  

countries to our system.  Learned trial judge speaks of sentence  

like “lynching” and described that it  has attained legal form in  

America.   Lynching means kill  someone for  an alleged offence  

without a legal trial, especially by hanging.  Learned judge failed  

to note that the constitutionality of death sentence came up for  

consideration before the U.S. Supreme Court in  William Henry  

Furman  v.  State  of  Georgia 408  U.S.  238  (1972),  which  

involved  three  persons  under  death  sentence,  more  than  600  

prisoners  on  death  row.   Five  Judges  invalidated  the  death

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penalty, four dissented and the Court held that death penalty to  

be cruel and unusual punishment in violation of the 8th and 14th  

amendments.   Later  in  Gregg  v.  Georgia  [  428  U.S.  153  

(1976)], the court laid down the concern expressed in Furman.  

In  the United States,  some States have done away with death  

sentence  as  well.   The  judges’  inclination  to  bring  in  alleged  

system of lynching to India and to show it as special reason is  

unfortunate and shows lack of exposure to criminal laws of this  

country.     Learned  trial  judge  while  showing  special  reasons  

referred  to  law  prevailing  in  Arab  countries,  like  imposing  

sentence  of  ‘slashning’  beheading,  taking  organ  for  organ  like  

“eye  for  eye”,  “tooth  for  tooth”  and  says  those  are  the  

developments of criminal jurisprudence.  Learned judge then says  

that the accused persons in the present case also deserve death  

sentence.  Learned judge lost sight of the fact that the Criminal  

Jurisprudence of this country or our society does not recognize  

those types of barbaric sentences. We are surprised to see how  

those  factors  have  gone  into  one’s  mind  in  awarding  death  

sentence.  

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17. We are also not concerned with the question whether the  

criminals  have  come  from  20  km  away  or  2000  km  away.  

Learned judge says that they have come to “our state”, forgetting  

the fact that there is nothing like ‘our state’ or ‘your state’.  Such  

parochial  attitude  shall  not  influence  or  sway  a  judicial  mind.  

Learned judge has further stated, since the accused persons had  

come from a far away state, about 2000 km to “our state” for  

committing  robbery  and  murder,  death  sentence  would  be  

imposed on them.  Learned judge has adopted a very strange  

reasoning, needs fine tuning and proper training..

18. Learned  trial  judge  in  para  36(f)  has  also  referred  to  a  

judgment of the High Court rendered by a learned Judge of the  

High Court on “rowdy panchayat system”.  Learned trial judge has  

stated that he has taken into consideration that judgment also in  

reaching the conclusion that death sentence be awarded.  We are  

not  in  a  position  to  know  how  that  judgment  is  relevant  or  

applicable in awarding death sentence.  Learned trial judge has  

also  not  given  the  citation  of  that  judgment  or  has  given  any

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explanation, as to how that judgment is applicable to the case on  

hand.   

19. Learned trial  judge has also opined that the imposition of  

death sentence under Section 396 of the IPC is the only weapon  

in  the  hands  of  judiciary  under  the  prevailing  law  to  help  to  

eliminate  the  crime.   Judiciary  has  neither  any  weapon  in  its  

hands nor uses it  to eliminate crimes.  Duty of the judge is to  

decide  cases  which  come  before  him  in  accordance  with  the  

constitution and laws, following the settled judicial precedents.  A  

Judge is also part of the society where he lives and also conscious  

of what is going on in the society.  Judge has no weapon or sword.  

Judge’s  greatest  strength  is  the  trust  and  confidence  of  the  

people, whom he serves.  We may point out that clear reasoning  

and analysis  are  the  basic  requirements  in  a  judicial  decision.  

Judicial  decision  is  being  perceived  by  the  parties  and  by  the  

society in general as being the result of a correct application of  

the legal rules, proper evaluation of facts based on settled judicial  

precedents and judge shall not do anything which will undermine  

the faith of the people.

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20. We also fail to see how the reasons stated in para 36(f) be a  

guiding  factor  to  award  death  sentence.   One  of  the  Code  of  

Conduct recognized at the Bangalore Conference of the year 2001  

reads as follows:

“A  judge  shall  exercise  the  judicial  function  independently on the basis of the judge’s assessment  of  the  facts  and  in  accordance  with  a  conscientious  understanding  of  the  law,  free  of  any  extraneous  influences,  inducement,  pressures,  threats  or  interference, direct or indirect, from any quarter or for  any reason.”

21.   Criminal  Court  while  deciding  criminal  cases  shall  not  be  

guided  or  influenced  by  the  views  or  opinions  expressed  by  

Judges on a private platform.  The views or opinions expressed by  

the Judges, jurists, academicians, law teachers may be food for  

thought.  Even the discussions or deliberations made on the State  

Judicial Academies or National Judicial Academy at Bhopal, only  

update  or  open  new  vistas  of  knowledge  of  judicial  officers.  

Criminal Courts have to decide the cases before them examining  

the  relevant  facts  and  evidence  placed  before  them,  applying  

binding  precedents.  Judges  or  academicians  opinions,

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predilection,  fondness,  inclination,  proclivity  on  any  subject,  

however eminent they are, shall not influence  a decision making  

process,  especially  when  judges  are  called  upon  to  decide  a  

criminal case which rests only on the evidence adduced by the  

prosecution  as  well  as  by  the  defence  and  guided  by  settled  

judicial precedents.  National Judicial Academy and State Judicial  

Academies should educate our judicial officers in this regard so  

that they will not commit such serious errors in future.

22. The  High  Court  of  Madras  heard  the  Criminal  Appeal  No.  

566/2006 filed by the accused Nos. 1 and 2, along with Referred  

Trial  1 of 2006.  The High Court, however,  did not confirm the  

death  sentence  awarded  by  the  trial  Court,  but  awarded  life  

sentence to both the accused persons.  As already indicated, we  

are, in this case, concerned only with the conviction and sentence  

awarded on the 2nd accused, since 1st accused is no more.

23. We  may  indicate  at  the  outset  that  the  accused  persons  

were apprehended after a period of ten years from the date of the  

incident and nine other accused persons are still absconding.  The  

incident had taken place on 07.06.1995 and the accused persons

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were arrested on 26.02.2005 from Rajasthan in connection with  

some other case ie. Cr. No. 59 of 1996.  The prosecution version  

that A-2 finger prints  tallied with ones lifted from the place of  

occurrence  in  Cr.  No.  59  of  1996.   Further,  it  is  also  the  

prosecution case that A2 made a disclosure and pursuant to that  

iron  rod  (M.O.  No.1)  used  10  years  back  was  recovered.   An  

identification parade was conducted so far as A1 is concerned on  

20.10.2005,  who  is  now  no  more.   However,  no  identification  

parade was conducted so far as A-2 is concerned.  It has come out  

in evidence that the photographs of A-2 was shown to PW 1 by  

the police on 30.10.2005 and asked him to identify the accused  

and on identification by PW 1, the accused was interrogated by  

the police.  In cross-examination, PW1 has stated as follows:

“Accused No.2 attacked me before I could see him  and make any enquiry.  He assaulted me with a rod.  I could not see with which hand he assaulted me.  It  is  incorrect  to  suggest  that  the  accused  did  not  assault me as stated by me.”

24. PW 1 also further stated in cross-examination as follows:

“There was light only after the neighbors switched on  the light.  It was dark earlier.  It is incorrect to suggest  that  it  is  not  possible  to  see  the  accused  in  the  darkness.”

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25. PW 2 – Lakshmi, wife of the deceased in her examination-in-

chief stated as follows:

“I opened my eyes and saw.  When I saw, accused  Nos. 1 and 2 were present amongst the persons.  I  fainted  immediately.   There  was  commotion  in  my  house.”

26. In cross-examination, she has stated as follows:

“In  the  police  interrogation,  I  did  not  tell  that  the  accused Nos.  1 and 2 were present in  the incident  that took place in my house.”

27. PW 5, brother of PW 1, in his examination-in-chief has stated  

as follows:

“At that time accused Nos. 1 and 2 attacked me with  the rod.   I  fell  down and fainted.   When I  regained  consciousness I  was in  the room of  my father.   My  father,  my  mother  and  younger  brother  sustained  injuries.   I  asked my mother to wake up my father.  Myself  and my mother  tried to  wake up my father.  After  that  neighbors  admitted  us  in  the  hospital.   I  remember it was in the C.M.C. hospital.  The accused  attacked me similar rod that is being showed to me by  you.  Material object No. 1 is the rod.”

28. In cross-examination, PW 5 stated as follows:

“In the police enquiry I told that I did not know what  happened  as  I  was  sleeping.   I  do  not  remember  whether I told the doctor in the hospital at Valajah that  I was assaulted by unknown persons……………….In the  police interrogation, I did not tell that I had seen the  accused No. 1 and 2…………….”

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29. The investigation officer stated that he did not receive any  

documents about the arrest of the appellant (A2) and he had not  

mentioned in  the final  report  about the crimes that  had taken  

place in other States.  

30. We may indicate that in the instant case, FIR was registered  

against unknown persons.  A2, as already stated, was arrested  

after  ten  years  on  26.02.2005  in  connection  with  some  other  

crime.  We fail to see how PW1 and PW2 could identify A2 in the  

court  at  this  distance  of  time.   They  were  guided  by  the  

photographs repeatedly shown by the police.  

31. Evidently,  the witnesses did not know the accused earlier,  

hence  the  accused  could  be  identified  only  through  a  test  

identification parade which was not done in this case, so far as A-

2  is  concerned.     In  this  connection,  we  may  refer  to  the  

judgment of this court in  Mohd. Iqbal M. Shaikh v. State of  

Maharashtra (1998) 4 SCC 494 wherein this Court held that:

“If the witness did not know the accused persons by  name but could only identify from their appearance  then a test identification parade was necessary, so

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that,  the  substantive  evidence  in  court  about  the  identification, which is held after fairly a long period  could  get  corroboration  from  the  identification  parade.   But  unfortunately the prosecution did not  take  any  steps  in  that  regard  and  no  test  identification parade had been held.”

32. This Court in  Ravindra Alias Ravi Bansi Gohar v. State   

of Maharashtra and Others (1998) 6 SCC 609 deprecated the  

practice of showing the photographs for indentifying the culprits  

and held as follows:

“The  identification  parade  belongs  to  the  investigation  stage  and  they  serve  to  provide  the  investigating  authority  with  materials  to  assure  themselves if the investigation is proceeding on the  right  lines.   In  other  words,  it  is  through  these  identification parades that the investigating agency  is required to ascertain whether the persons whom  they suspect to have committed the offence were the  real  culprits – and not by showing the suspects or  their  photographs.   Such  being  the  purpose  of  identification parades,  the investigating agency,  by  showing the photographs of the suspects whom they  intended to place in the TI parade, made it farcical.  If really the investigating agency was satisfied that  PWs 2 and 12 did know the appellants from before  and they were in fact amongst the miscreants, the  question of holding the TI parade in respect of them  for their identification could not have arisen.”

33. In  Ravi  alias  Ravichandran  v.  State  represented  by  

Inspector of Police (2007) 15 SCC 372, this Court held that:

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“A judgment of conviction can be arrived at even if  no  test  identification  parade  has  been  held.   But  when  a  first  information  report  has  been  lodged  against  unknown  persons,  a  test  identification  parade in terms of Section 9 of the Evidence Act, is  held for  the purpose of testing the veracity of  the  witness  in  regard  to  his  capability  of  identifying  persons who were unknown to him.”

34. Further, it is also held that:

“It was incumbent upon the prosecution to arrange a  test  identification  parade.   Such  test  identification  parade was required to be held as early as possible  so as to exclude the possibility of the accused being  identified either at the police station or at some other  place by the witnesses concerned or with reference  to the photographs published in the newspaper.  A  conviction  should  not  be  based  on  a  vague  identification.”

35. A-2,  it  may be noted,  was not named in the FIR,  nor any  

identification  parade  was  conducted  to  identify  him  by  the  

witnesses.  It is rather impossible to identify the accused person  

when he is produced for the first time in the court i.e. after ten  

years since he was unknown to the witnesses.  We are of the view  

that it is a glaring defect which goes to the root of the case since  

none of the witnesses had properly identified the accused.  

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36. We may notice that it is the case of prosecution that one rod  

was also  used for  the murder  of  the deceased persons in  this  

case, but that rod was not recovered.  One rod stated to have  

been recovered at the instance of A2 could not be connected with  

the crime.   PW 5 in his examination-in-chief had stated that the  

accused  had  attacked  him  with  a  similar  rod  that  was  being  

shown to him which would indicate that  the witness could not  

conclusively connect the rod which was used for committing the  

crime.  Further, the rod was recovered after a period of ten years  

of the incident and it is highly doubtful, whether it was used for  

the commission of the offence.  Further, the prosecution case is  

that a rope was used for the strangulation causing death to Dr.  

Mohan Kumar, but the rope was not recovered.    

37. In  Dwarkadas Gehanmal v. State of Gujarat (1999) 1  

SCC 57, this Court has held that it is for the prosecution to prove  

that the object recovered has nexus with the crime.  This Court in  

Mustkeem alias Sirajudeen v. State of Rajasthan (2011) 11  

SCC 724 held, “what is admissible under Section 27 of the Act is

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the information leading to discovery and not any opinion formed  

on it by the prosecution.”  This Court held as follows:

“With  regard  to  Section  27  of  the  Act,  what  is  important is discovery of the material object at the  disclosure of the accused but such disclosure alone  would not automatically lead to the conclusion that  the offence was also committed by the accused.  In  fact,  thereafter,  burden lies  on the prosecution to  establish  a  close  link  between  discovery  of  the  material object and its use in the commission of the  offence.  What is admissible under Section 27 of the  Act is the information leading to discovery and not  any opinion formed on it by the prosecution.”

38. In this case,  the prosecution could not prove that the rod  

recovered has any nexus with the crime alleged to have been  

committed  by  A-2.   We  are  of  the  view  that  the  prosecution,  

therefore,  could  not  establish  the  guilt  of  the  second  accused  

beyond reasonable doubt.  The High Court, therefore, committed  

a gross error in awarding life sentence to A2.   

39. This  appeal  is,  therefore,  allowed  and  the  conviction  and  

sentence awarded to A-2 is set aside.  We are informed that the  

accused has already served the jail sentence for more than eight  

years now.  A-2 is, therefore, set at liberty, unless he is wanted in  

any other case.

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…………………………………..J. (K.S. Radhakrishnan)

…………………………………..J. (Dipak Misra)

New Delhi, December 11, 2012

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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   143  OF 2007

OMA @ Omprakash & Anr.      ... Appellants  

Versus

State of Tamil Nadu                  ...Respondent

J U D G M E N T   

Dipak Misra, J.

I  respectfully  concur  with  the  conclusion  and  views  

expressed by  my learned Brother  Radhakrishnan,  J.   However,  

with  regard to  the ratiocination made by the  learned Sessions  

Judge while imposing the death sentence, I propose to record my

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views in addition especially in the context of the reasons which  

have already been reproduced by my learned brother.  

2.   Article 141 of the Constitution of India stipulates that the  

law declared by the Supreme Court shall be binding on all Courts  

within the territory of India.  The reasons ascribed by the learned  

trial Judge are required to be tested on the bedrock of precedents  

in their conceptual and perceptual eventuality.   

3. In  Bachan Singh v. State of Punjab1,  the majority, after  

deliberating  many  an  aspect,  came to  hold  that  the  provision  

under Section 302 of the Indian Penal Code which provides for  

imposition  of  death  penalty  neither  violates  the  letter  nor  the  

ethos  and  Article  19  of  the  Constitution.   Testing  the  said  

provision on the anvil of Articles 14 and 21 of the Constitution, it  

reaffirmed the view taken by this Court in  Jagmohan Singh v.  

State of U.P.2  and held that  death penalty does not violate  

Articles 14, 19 and 21 of the Constitution.

4. The majority proceeded to answer the question whether the  

Court can lay down standards or norms restricting the area of  

imposition of death penalty to narrow the categories of murders  1  (1980) 2 SCC 684

2  (1973) 1 SCC 20

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and,  in  that  context,  it  opined  that  standardisation  of  the  

sentencing process would tend to sacrifice at the altar of blind  

uniformity,  in  fact,  indeed  there  is  a  real  danger  of  such  

mechanical  standardisation  degenerating  into  a  bed  of  

procrustean cruelty.   Thereafter,  the Bench proceeded to state  

thus:-

“As  Judges,  we  have  to  resist  the  temptation  to  substitute our own value-choices for the will of the  people.  Since  substituted  judicial  “made-to-order”  standards,  howsoever  painstakingly  made,  do  not  bear the people's imprimatur, they may not have the  same authenticity  and efficacy as the silent  zones  and green belts designedly marked out and left open  by Parliament in its legislative planning for fair play  of  judicial  discretion  to  take  care  of  the  variable,  unpredictable circumstances of the individual cases,  relevant to individualised sentencing. When Judges,  acting  individually  or  collectively,  in  their  benign  anxiety to do what they think is morally good for the  people,  take upon themselves the responsibility  of  setting down social norms of conduct, there is every  danger, despite their effort to make a rational guess  of the notions of right and wrong prevailing in the  community  at  large  and  despite  their  intention  to  abide  by  the  dictates  of  mere  reason,  that  they  might  write  their  own  peculiar  view  or  personal  predilection  into  the  law,  sincerely  mistaking  that  changeling  for  what  they  perceive  to  be  the

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community  ethic.  The  perception  of  “community”  standards or ethics may vary from Judge to Judge.”

[Emphasis added]  

5. The majority referred to the decision in  Gurbaksh Singh  

Sibbia v. State of Punjab3 and stated that  the observations  

made therein aptly applied to the desirability and feasibility of  

laying down standards in the area of sentencing discretion.  In the  

case  of  Gurbaksh Singh (supra),  the  Constitution  Bench  had  

observed thus:-  

“Judges have to decide cases as they come before  them,  mindful  of  the  need  to  keep  passions  and  prejudices out of their decisions.”

6. After  stating  broad  guidelines  relating  to  the  mitigating  

circumstances, the majority ultimately ruled thus:-

“Judges  should  never  be  bloodthirsty.  Hanging  of  murderers has never been too good for them. Facts  and  Figures,  albeit  incomplete,  furnished  by  the  Union of  India,  show that  in  the past,  courts  have  inflicted  the  extreme  penalty  with  extreme  infrequency — a fact which attests to the caution and  compassion which they have always brought to bear  on the exercise of their sentencing discretion in so  grave a matter. It is, therefore, imperative to voice  the  concern  that  courts,  aided  by  the  broad  illustrative guide-lines indicated by us, will discharge  

3  (1980) 2 SCC 565

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the onerous function with evermore scrupulous care  and humane concern, directed along the highroad of  legislative policy outlined in Section 354(3) viz. that  for persons convicted of murder, life imprisonment is  the rule and death sentence an exception. A real and  abiding  concern  for  the  dignity  of  human  life  postulates resistance to taking a life  through law's  instrumentality.  That ought not to be done save in  the rarest of rare cases when the alternative option  is unquestionably foreclosed.”

7. In  Machhi  Singh  and  Others  v.  State  of  Punjab4,  a  

three-Judge Bench explained the concept of rarest of rare cases  

by stating that the reasons why the community as a whole does  

not  endorse  the  humanistic  approach  reflected  in  “death  

sentence-in-no-case”  doctrine  are  not  far  to  seek.  In  the  first  

place,  the  very  humanistic  edifice  is  constructed  on  the  

foundation of “reverence for life” principle.  When a member of  

the  community  violates  this  very  principle  by  killing  another  

member, the society may not feel itself bound by the shackles of  

this doctrine. Secondly, it has to be realized that every member of  

the community is able to live with safety without his or her own  

life  being  endangered  because  of  the  protective  arm  of  the  

community and on account of the rule of law enforced by it. The  4   (1983) 3 SCC 470

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very existence of the rule of law and the fear of being brought to  

book operates as a deterrent for those who have no scruples in  

killing  others  if  it  suits  their  ends.  Every  member  of  the  

community owes a debt to the community for this protection.

8. After  stating  about  the  feeling  of  the  community  and  its  

desire  for  self  preservation,  the  Court  observed  that  the  

community may well withdraw the protection by sanctioning the  

death penalty.  Thereafter, it ruled thus:-   

“But the community will not do so in every case. It  may  do  so  “in  rarest  of  rare  cases”  when  its  collective conscience is so shocked that it will expect  the  holders  of  the  judicial  power  centre  to  inflict  death penalty irrespective of their personal opinion  as regards desirability or otherwise of retaining death  penalty.”  

9. Emphasis  was laid on certain aspects,  namely,  manner of  

commission  of  murder,  motive  for  commission  of  murder,  anti  

social  or  socially  abhorrent  nature  of  the  crime,  magnitude  of  

crime and personality of the victim of murder.  After so stating,  

the  propositions  emerged  from  Bachan  Singh (supra)  were  

culled out which are as follows:-

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“(i)  The  extreme  penalty  of  death  need  not  be  inflicted  except  in  gravest  cases  of  extreme  culpability.

(ii)  Before  opting  for  the  death  penalty  the  circumstances  of  the  ‘offender’  also  require  to  be  taken  into  consideration  along  with  the  circumstances of the ‘crime’.

(iii) Life imprisonment is the rule and death sentence  is an exception. In other words death sentence must  be imposed only when life imprisonment appears to  be  an  altogether  inadequate  punishment  having  regard to the relevant circumstances of  the crime,  and  provided,  and  only  provided,  the  option  to  impose sentence of imprisonment for life cannot be  conscientiously  exercised  having  regard  to  the  nature and circumstances of  the crime and all  the  relevant circumstances.

(iv)  A balance sheet of  aggravating and mitigating  circumstances has to be drawn up and in doing so  the  mitigating  circumstances  have  to  be  accorded  full  weightage and a just balance has to be struck  between  the  aggravating  and  the  mitigating  circumstances before the option is exercised.”

10. Thereafter,  the  Court  stated  that  to  apply  the  said  

guidelines, the following questions are required to be asked and  

answered:-

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“(a) Is there something uncommon about the crime  which  renders  sentence  of  imprisonment  for  life  inadequate and calls for a death sentence?

(b)  Are  the  circumstances  of  the  crime  such  that  there is no alternative but to impose death sentence  even  after  according  maximum  weightage  to  the  mitigating  circumstances  which  speak  in  favour  of  the offender?”

11. In Lehna v. State of Haryana5 a three-Judge Bench, after  

referring to the pronouncements in  Bachan Singh (supra) and  

Machhi  Singh (supra),  ruled  under  what  circumstances  the  

collective conscience of the community is likely to be shocked.  

We may fruitfully quota a passage from the same:-  

“A convict hovers between life and death when the  question  of  gravity  of  the  offence  and  award  of  adequate  sentence  comes  up  for  consideration.  Mankind has shifted from the state of nature towards  a  civilized  society  and it  is  no  longer  the physical  opinion of the majority that takes away the liberty of  a citizen by convicting him and making him suffer a  sentence  of  imprisonment.  Award  of  punishment  following conviction at a trial in a system wedded to  the rule of law is the outcome of cool deliberation in  the court room after adequate hearing is afforded to  the  parties,  accusations  are  brought  against  the  accused, the prosecuted is given an opportunity of  

5  (2002) 3 SCC 76

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meeting  the  accusations  by  establishing  his  innocence.   It  is  the outcome of  cool  deliberations  and the screening of the material  by the informed  man i.e. the Judge that leads to determination of the  lis.

The principle of proportion between crime and  punishment is a principle of just desert that serves as  the  foundation  of  every  criminal  sentence  that  is  justifiable.  As  a  principle  of  criminal  justice  it  is  hardly  less  familiar  or  less  important  than  the  principle that only the guilty ought to be punished.  Indeed,  the  requirement  that  punishment  not  be  disproportionately great, which is a corollary of just  desert,  is dictated by the same principle that does  not  allow  punishment  of  the  innocent,  for  any  punishment  in  excess  of  what  is  deserved  for  the  criminal conduct is punishment without guilt.”

[Emphasis added]

12. In  Haresh Mohandas Rajput v State of  Maharshtra6,  

the Bench referred to the principles in Bachan Singh (supra) and  

Machhi Singh (supra) and proceeded to state as follows:-

“The rarest of the rare case” comes when a convict  would  be a  menace and threat  to  the harmonious  and peaceful coexistence of the society.  The crime  may  be  heinous  or  brutal  but  may  not  be  in  the  category of “the rarest of the rare case”. There must  be no reason to believe that the accused cannot be  reformed  or  rehabilitated  and  that  he  is  likely  to  

6  (2011) 12 SCC 56

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continue criminal acts of violence as would constitute  a continuing threat to the society. The accused may  be a menace to the society and would continue to be  so,  threatening  its  peaceful  and  harmonious  coexistence.  The  manner  in  which  the  crime  is  committed must be such that it may result in intense  and extreme indignation of the community and shock  the collective conscience of  the society.  Where an  accused  does  not  act  on  any  spur-of-the-moment  provocation  and  indulges  himself  in  a  deliberately  planned  crime  and  meticulously  executes  it,  the  death  sentence  may  be  the  most  appropriate  punishment  for  such  a  ghastly  crime.  The  death  sentence may be warranted where the victims are  innocent children and helpless women. Thus, in case  the crime is committed in a most cruel and inhuman  manner  which  is  an  extremely  brutal,  grotesque,  diabolical, revolting and dastardly manner, where his  act affects the entire moral fibre of the society e.g.  crime committed for  power or  political  ambition or  indulging  in  organised  criminal  activities,  death  sentence should be awarded. (See  C. Muniappan v.  State  of  T.N.7,  Dara  Singh v.  Republic  of  India8,  Surendra  Koli v.  State  of  U.P.9,  Mohd.  Mannan  v.  State  of  Bihar10 and  Sudam v.  State  of  Maharashtra11.)”   

13. In  Sham Alias Kishore Bhaskarrao Matkari v. State of   

Maharashtra12, while dealing with the justifiability of imposition  7  (2010) 9 SCC 567 8  (2011) 2 SCC 490  9  (2011) 4 SCC 80 10  (2011) 5 SCC 509 11  (2011) 7 SCC 125 12  (2011) 10 SCC 389

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of  death  penalty,  the  Court  took  note  of  the  aggravating  and  

mitigating circumstances and eventually opined that though the  

appellant therein caused death of three persons,  he had no pre-

plan to do away with the family of his brother and the quarrel  

started due to the land dispute and, in fact, on the fateful night,  

he was sleeping with the other victims in the same house and in  

those  circumstances and other material placed clearly showed  

that  he  had  no  pre-plan  or  predetermination  to  eliminate  the  

family of his brother.  The Bench also took note of his antecedents  

and did  not  agree with  the  view expressed by the High Court  

which  had  enhanced  the  sentence  from  life  to  death  on  the  

ground  that  it  was   a  rarest  of  the  rare  case  where  extreme  

penalty of death was called for.  

14. Recently, in  Mohammed Ajmal Mohammad Amir Kasab  

alias  Abu  Mujahid  v.  State  of  Maharashtra13,  the  Court  

referred to the earlier decisions and taking note of the terrorist  

attack from across the border, the magnitude of unprecedented  

enormity  on  all  scales,  the  conspiracy  behind  the  attack,  the  

preparation and training for the execution, and more importantly,  

13   (2012) 9 SCC 1

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its traumatizing effect, opined that it was the rarest of rare case  

to come before this Court since the birth of Republic.  The Bench,  

in that context, expressed thus:-  

“Putting the matter once again quite simply, in this  country  death  as  a  penalty  has  been  held  to  be  constitutionally  valid,  though  it  is  indeed  to  be  awarded  in  the  “rarest  of  rare  cases  when  the  alternative option (of life sentence) is unquestionably  foreclosed”.   Now,  as  long  as  the  death  penalty  remains  on  the  statute  book  as  punishment  for  certain offences, including “waging war” and murder,  it logically  follows that there must be some cases,  howsoever rare or one in a million, that would call for  inflicting that penalty. That being the position we fail  to see what case would attract the death penalty, if  not the case of the appellant.  To hold back the death  penalty  in  this  case  would  amount  to  obdurately  declaring  that  this  Court  rejects  death  as  lawful  penalty even though it  is  on the statute book and  held  valid  by  the  Constitutional  Benches  of  this  Court.”     

15. We have referred to the aforesaid decisions to highlight that  

this Court,  on number of occasions,  has dealt with under what  

circumstances death penalty could be imposed and what are the  

mitigating factors  not  to  impose such punishment.   Illustrative  

guidelines  have been provided,  and,  needless  to  say,  it  would

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depend upon the facts of each case.  No strait-jacket scale can be  

provided as has been said in number of pronouncements.  

16. As  is  obvious  from the reasoning of  the  learned Sessions  

Judge,  he has referred to the prevalence of  death sentence in  

certain countries and observed that in certain countries where law  

provides “slashing”,  “beheading”,  “taking the  organ for  organ”  

like ‘eye for eye’, ‘tooth for tooth’ to the accused, it shows the  

growth of  criminal jurisprudence.   That apart, he had referred to  

the speech of the then learned Chief Justice of the High Court, and  

it  is  clearly  demonstrable  that  the  same  has  influenced  his  

appreciation, analysis and perception.  Being influenced by the  

erroneous notions of law and speech of the learned Chief Justice,  

may be understanding it totally out of context, his passion and  

prejudices have dominated over his reasoning faculties and the  

result, as I perceive, is devastating.   

17. In Hindustan Times Ltd. v. Union of India and Others14,  

a two-Judge Bench of this Court referred to an article On Writing  

Judgments, by  Justice Michael Kirby of Australia15 wherein it has  

been highlighted, apart from any facet that the legal profession is  14  (1998) 2 SCC 242 15  * [(1990) (Vol. 64. Australian Law Journal, p. 691)]

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entitled to have, it demonstrated that the Judge has the correct  

principles in mind, has properly applied them and is entitled to  

examine the body of the judgment for the learning and precedent  

that they provide and further reassurance of the quality of the  

judiciary which is the centre-piece of our administration of justice.  

Thus, the fundamental requirement is that a Judge presiding over  

a criminal trial has the sacrosanct duty to demonstrate that he  

applies the correct principles of law to the facts regard being had  

to the precedents in the field.  A Judge trying a criminal case has  

a sacred duty to appreciate the evidence in a seemly manner and  

is  not  to  be  governed  by  any  kind  of  individual  philosophy,  

abstract concepts, conjectures and surmises and should never be  

influenced  by  some observations  or  speeches  made in  certain  

quarters of the society but not in binding judicial precedents.  He  

should entirely ostracise prejudice and bias.  The bias need not be  

personal but may be an opinionated bias.

18. It is his obligation to understand and appreciate the case of  

the prosecution and the plea of the defense in proper perspective,  

address to the points involved for determination and consider the  

material  and  evidence  brought  on  record  to  substantiate  the

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allegations and record his reasons with sobriety sans emotion.  He  

must constantly keep in mind that every citizen of this country is  

entitled to a fair trial and further if a conviction is recorded it has  

to  be  based  on  the  guided  parameters  of  law.   And,  more  

importantly, when sentence is imposed, it has to be based  on  

sound legal principles, regard being had to the command of the  

statute, nature of the offence, collective cry and anguish of the  

victims and, above all, the “collective conscience” and doctrine of  

proportionality.   Neither  his  vanity  nor  his  pride  of  learning  in  

other  fields  should  influence  his  decision  or  imposition  of  

sentence. He must practise the conscience of intellectual honesty  

and deal with the matter with all the experience and humility at  

his command.  He should remind himself that some learning does  

not educate a man and definitely not a Judge.  The learning has to  

be applied with conviction which is based on proper rationale and  

without forgetting that human nature has imperfect expression  

when founded bereft of legal principle.  He should not usher in his  

individual satisfaction but adjudge on objective parameters failing  

which  the  whole  exercise  is  likely  to  be  named  “monstrous

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legalism”.   In  this  context,  I  may  profitably  reproduce  the  

profound saying of Sir P. Sidney :-

“In forming a judgment, lay your hearts void of fore- taken opinions; else, whatsoever is done or said will  be measured by a wrong rule; like them who have  the  jaundice,  to  whom  everything  appeareth  yellow.”   

19. In this context, I may usefully refer to the pronouncement in  

State of W. B. Others v. Shivanand Pathak and Others16,  

wherein the High Court had affirmed the death sentence imposed  

by the learned Sessions Judge.  The High Court had commenced  

the judgment with the expression that  it  was one of  the most  

sensational  trials  of  the  recent  years  and  the  murder  is  a  

diabolical one because the innocent persons have been killed by  

the police officers who were supposed to be the protectors of law-

abiding citizens.  Commenting on the said expression, this Court  

observed thus:-  

“We are constrained to observe that the High Court  has  not  kept  in  view the  several  decisions  of  this  Court  and  has  not  examined  the  circumstances  proved while  considering  the  question  of  sentence  but on the other hand, have been swayed away with  

16  (1998) 5 SCC 513

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the  fact  that  the  trial  is  a  sensational  one,  and  therefore, the officials must be awarded the extreme  penalty of death. We do not find that it is a correct  appreciation of the law on the subject dealing with  the  award  of  death  penalty,  even  if  a  conviction  under Sections 302/34 IPC is sustained. The learned  Sessions Judge also came to the conclusion that the  case can be treated to be the rarest of rare cases as  police  officials  on  whose  shoulders  the  safety  of  citizens lies and being the protectors of the society  are accused for killing of three civilians without any  provocation and resistance.”

[Underlining is ours] From  the  aforesaid,  it  is  graphically  clear  that  a  judge,  while  

imposing sentence, should not be swayed away with any kind of  

sensational aspect and individual predilections.  If it is done, the  

same would tantamount  to  entering into  an area of  emotional  

labyrinth or arena of mercurial syllogism.    

20. In the case at hand, as is perceptible, the learned trial Judge  

has primarily been guided by some kind of notion and connected  

them with civilized world and democracy which, in my considered  

opinion,  should  not  have  been  at  all  referred  to.   He  should  

remember the language of Article 302 of IPC and the precedents  

that  govern  the  field  for  imposition  of  death  penalty.   In  that  

event,  the perception might have been wrong but it  could not

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have  been  said  that  it  is  based  on  some  kind  of  personal  

philosophy.   Thus,  the  view  expressed  does  not  sustain  the  

concept of law and rather, on the contrary, exhibits a sanctuary of  

errors.  Speeches or deliberations in any academic sphere are not  

to  be  taken  recourse  to  unless  they  are  in  consonance  with  

binding precedents.  A speech sometimes may reflect a personal  

expression,  a desire and,  where a view may not be appositely  

governed by words, is likely to confuse the hearers.  It is a matter  

of  great  remorse  that  the  learned  trial  Judge  had ventured  to  

enter into such kind of adventure.  It can be stated with certitude  

that in a criminal trial, while recording the sentence, he should  

have been guided and governed by established principles and not  

by  personal  notions  or  even  ideas  of  eminent  personalities  

Binding  judgments  should  be  the  Bible  of  a  Judge  and  there  

should not be any deviation.  I have said so, so that the trial Court  

judges  are  appositely  guided  and  refrain  themselves  from  

engaging in innovative creativity or “borrowed creativity” which  

has no sanction in Law.   

21. Consequently,  the appeal stands allowed, the judgment of  

conviction and order of sentence are set aside and the appellant

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is directed to be set at liberty forthwith unless he is required to be  

detained in any other case.  

……………………………….J.                                                  [Dipak Misra]

New Delhi; December 11, 2012.