Ramnaresh Vs State of Chhattisgarh

28 February 2012
Supreme Court
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RAMNARESH Vs STATE OF CHHATTISGARH

Bench: A.K. PATNAIK,SWATANTER KUMAR
Case number: Crl.A. No.-000166-000167 / 2010
Diary number: 31479 / 2009
Advocates: B. S. BANTHIA Vs DHARMENDRA KUMAR SINHA

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.166-167 OF 2010

Ramnaresh & Ors. … Appellants

Versus

State of Chhattisgarh … Respondent

J U D G M E N T

Swatanter Kumar, J .

1. The present appeals are directed against the concurrent

judgments of conviction and award of capital punishment. The

Additional Sessions Judge, Pendra Road, District Bilaspur,

convicted the four accused (the appellants herein), for offences

under Sections 499, 376(2)(g) and 302 read with Section 34 of the

Indian Penal Code, 1860 (for short ‘IPC’) and sentenced them vide

judgment and order of sentence dated 20th November, 2007 as

follows:

Offences Punishment/Sentence

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302/34 IPC Award of capital sentence and ordered that they be hanged till death.

376(2)(g) IPC Life Imprisonment and fine of Rs.200/- each. In case of default in the payment of fine, each accused to further undergo an additional rigorous imprisonment of one month each.

449 IPC Ten years rigorous imprisonment with fine of Rs.200/- and in default to undergo additional rigorous imprisonment for one month.

2. The Division Bench of the High Court vide its judgment dated

24th July, 2009 confirmed the judgment and order of sentence

passed by the learned Additional Sessions Judge giving rise to the

present appeal.

3. Learned counsel appearing for the appellant, inter alia, but

primarily, has raised the following challenges to the judgments

under appeal:

(1) That the prosecution has failed to prove its case beyond any

reasonable doubt.

(2) That the sole witness, PW6, Dhaniram is not a credible

witness and, in fact, he himself falls within the realm of

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suspicion as being an accused. Number of other witnesses

including, PW2, Sunita, PW5, Bela Bai, and PW10, Kamlesh,

turned hostile in the court. This clearly is indicative of false

implication of the accused.

(3) That there are variations and serious contradictions in the

statements of the witnesses, which have been relied upon by

the courts, while convicting the accused.

(4) Furthermore, there is an inordinate and unexplained delay in

lodging the FIR. Therefore, the conviction of the accused is

unsustainable. The contention is that the linking evidence is

missing in the present case. The incriminating evidence

produced by the prosecution does not connect the appellants

with the commission of crime.

(5) The High Court has erred in law in relying upon the statement

of the witnesses which are not reliable. The courts are

expected to examine statements of such witnesses and/or sole

witness cautiously. The learned Trial Court as well as the

High Court has failed to apply these settled principles correctly

to the facts of the present case.

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(6) FSL report does not clearly state or link the appellants with

the commission of the crime.

For these reasons and grounds, the appellant claims acquittal.

4. Before we proceed to discuss the merits or otherwise of the

above contentions, it will be necessary for us to state the case of the

prosecution and the evidence on record. Rajkumari (the deceased)

was residing at Village Gullidand, Police Station Marwahi, with her

husband Indrajeet and two infant children. On 8th August, 2006,

her husband had gone to the house of his father at Rajnagar.

Rajkumari was at her residence with her children. On 9th August,

2006, Rajkumari had called Dhaniram, their domestic servant, to

sleep in their house in the night. It was the day of Raksha

Bandhan. Anita (PW3), Savita (PW2) and Bela Bai (PW5),

neighbours of Rajkumari, visited her house to view television in the

night. At about 9 o’clock, they went back to their houses after

viewing television. Ranjeet Kewat, is the brother of Indrajeet and

brother-in-law of Rajkumari. He had a house near the house of

Indrajeet. Vishwanath, Amar Singh, Kamlesh and Ramnaresh, who

used to reside at the house of Ranjeet came to his house, sat there

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for some time and then went away. At about 11.30 p.m., they are

stated to have again come to the house of Ranjeet and consumed

alcohol. Thereafter, at about 12 o’clock in the night, when

Rajkumari had gone to sleep in her room and the servant,

Dhaniram, was watching television in the verandah, the accused

persons, Ranjeet, Vishwanath, Amar Singh and Ramnaresh came

into the house of Rajkumari and told Dhaniram that they would

have illicit relations with Rajkumari and if he disclosed anything to

anybody, he would be eliminated. Ramnaresh and Amar Singh sat

down along with Dhaniram while Ranjeet and Vishwanath went into

the room of Rajkumari and committed rape on her. After

committing the offence, they came out and took Dhaniram into the

courtyard. Then Ramnaresh and Amar Singh entered the room of

Rajkumari. They also committed rape on her and came out after

some time. Then, the accused asked Dhaniram to go away to which

he objected. Upon his objection, he was threatened of elimination.

Thereafter, Dhaniram went to the room of Rajkumari and saw that

she was breathing heavily, was not able to speak and blood was

oozing from her mouth and nose. Dhaniram came out of the room

and was again threatened by all the accused. Ranjeet asked him to

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go to the house of his aunt (bua), mother of Rajkumari and tell her

that Rajkumari is not waking up. Before leaving, they extended the

threat again and told him to act as per their directions. Dhaniram

went to the house of Sugaribai, mother of Rajkumari, PW12 and

narrated the incident as he was directed by the accused. Sugaribai

asked him to stay at her house while she went to the house of

Rajkumari. There she noticed that Rajkumari was lying dead. She

called the neighbours and thereafter, the information was given to

Indrajeet, husband of the deceased, who came in the morning.

Indrajeet visited the Police Station Marwahi and informed about the

death of Rajkumari vide Ex.P1. The police visited the spot and took

the body of the deceased vide Ex.P3 and also collected other

materials from the place of occurrence. Dr. Sheela Saha and Dr.

Mahesh Raj conducted the postmortem of the dead body and

submitted the postmortem report, Ex.P12, wherein it was opined

that death of Rajkumari had taken place due to blockage of

breathing on account of strangulation and the act of commission of

rape on her was also established. The police registered a case

under Section 376/302 IPC vide Ex.P16 and started its

investigation. Statements of as many as 14 witnesses were

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recorded by the police. Various items like blood stained underwear

and piece of yellow-coloured saree on which blood spots were visible

at various places were also seized from the place of occurrence and

were exhibited as Ex.P10. Slide of semen of the accused from the

hospital was seized vide seizure memo Ex.P13. Thereafter, the

accused were arrested. During further investigation, clothes, shirts

and underwear of the other accused persons and the petticot and

saree of the deceased were also seized. After the medical

examination of the accused, report of the FSL and recording of

statements of the witnesses, the police filed the report before the

court of competent jurisdiction. The accused were committed to the

Court of Sessions and tried in accordance with law, which resulted

in their conviction, as afore-noticed. As per Ex.P12, there were

following injuries upon the person of the deceased:-

“External Injury in the neck- (A) Abrasion with scratch mark by nail present. Abrasion in number, below the angle of right mandible and sternocleidomastoideus muscles present size measuring 0.5 x 0.5 cm (B) Scratch mark – length 1” present above mentioned area. Abrasion on the left side of Neck below the angle of mandible to mastoid process abrasion scratch mark 2 ½” present.

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1” x 1” contusion on private part on medial side of the Rt. Present on both medial aspect of thigh.

ON P/V EXAMINAL

Laceration plus abrasion 3 to 4” in no. over perineum. Blood mix discharge present.

P/V Ex-Uterus Anteverted normal size.”

5. PW1, husband of the deceased had stated in his statement

under Section 161 of the Code of Criminal Procedure (Cr.P.C.) that

PW6 had not told him as to how Rajkumari had died. In his

statement, he had also stated that he had not married Rajkumari

and she was staying with him as his mistress. He had been

married earlier to a girl from village Pyari. However, he did not

remember the name of the girl, as it was more than 16 years ago.

He further stated that the deceased Rajkumari was married to one

Bhupendra, who was from the village of her father, i.e. village

Khongapani. He admitted that he had two children from Rajkumari

and also that his relationship with Bhupendra were bitter on

account of retaining Rajkumari as his mistress. He also stated that

he had suspected Bhupendra of committing the said crime.

According to this witness, he was informed by one Mr. Ashok of the

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incident. He stated that Dhaniram had been serving as a servant

with them for the past three years and he used to have his meals

and sleep in the verandah of the house. The broken pieces of

bangles of Rajkumari were kept by Dhaniram when he cleaned the

room.

6. The other witnesses, i.e. PW2, PW5 and PW10, who had seen

Ranjeet and the other accused assembling outside the house of

Rajkumari had been declared hostile during their examination

before the court by the prosecutor. These witnesses, however, had

admitted that they had acquaintance with the accused persons as

well as with the deceased Rajkumari. PW5, Bela Bai stated that she

had gone to watch television in the house of Rajkumari along with

Anita and Savita and nobody else was there. It was at that stage

that the witness was declared hostile and she denied the suggestion

that she had seen the accused persons. This witness and all other

witnesses live in and around the house of Rajkumari.

7. PW6 who is the main witness of the prosecution, was about 16

years old at the time of recording of his statement in the Court. He

fully supported the case of the prosecution and was subjected to a

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lengthy cross-examination. According to him, he was watching

television when Ranjeet along with other accused had come to the

house of Rajkumari. He also stated that he did not raise hue and

cry as he was under constant threat by the other co-accused, who

were surrounding him. He also stated that he was confused and

was unable to point out anything at that point of time. In his

cross-examination, he was posed the following question, which

adds to the veracity of his statement:

“Question: - When Raj Kumari was restless due to pain, did you go to call up Ranjeet?

Ans:- Why I should have gone to call up Ranjeet when he, in person, was involved in this incident.”

8. As already noticed, this witness was subjected to a detailed

cross-examination. He also admitted in his cross-examination “it is

correct to say that I was afraid whether the police would not make

me the accused.”

9. PW12, Sugaribai, is the mother of the deceased and she had

also supported the case of the prosecution and corroborated the

statement of PW6. She stated that when she visited the house of

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Rajkumari, Ranjeet was holding the younger infant of Rajkumari in

his lap and she had sent Ranjeet to call the people but instead he

called Rewa Lohar, a witch doctor.

10. PW1, PW6 and PW12 had substantially supported the case of

the prosecution and we are unable to notice any substantial conflict

or contradiction in their statements. The semen, blood and blood-

stained clothes, which had been seized during the investigation,

had been sent for examination. The report of the FSL had been

placed on record as Ex.P23. Such evidence would be admissible in

terms of Section 293 Cr.P.C. The merit or otherwise of this report

was examined by the High Court as follows:-

“(8) During trial, report of the Forensic Science Laboratory, Raipur Ex.P-23 dated 31-7-2007 was produced and admitted in evidence under Section 293 of the Code by which presence of blood on Articles A, B, C, D, E, F1, F2 and presence of seminal stains and human spermatozoa on Articles C, D, E, F1, F2, G1, H1, I1, J1 and K1 was confirmed. Seminal stains and human spermatozoa was not found on Articles A and B. The seminal stains on Articles C, D, E, F1 and F2 were not sufficient for serological examination. The Slides Articles G2, H2, I2, J2 and K2 were preserved if D.N.A. Test was felt necessary. The prosecution examined as many as 16 witnesses. The appellants/accused examined Samelal D.W.-1

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and Kamla D.W.-2 wife of Ranjeet to establish that the appellants/accused had slept in their respective houses between 9 to 10 P.M. on 9-8- 2006.”

11. As is evident from the above findings, the report of the FSL

was inconclusive but not negative, which would provide the accused

with any material benefit.

12. We have examined this case in light of the above ocular and

documentary evidence. One very important aspect of the present

case is that the accused were not declared accused

instantaneously. Dhaniram had been kept in the Police Station for

two days thereafter apparently for the purposes of verifying and

investigating what he informed the police. The needle of suspicion

pointed towards Dhaniram and Bhupendra for the reason that

Bhupendra was earlier married to Rajkumari and Dhaniram with

reference to the circumstances in existence at the spot and he being

the only person available. It was argued that Dhaniram could have

committed the crime as he was the only person present in the

house when all the persons watching the television had left the

house. Thus, the Investigating Agency had to conduct a proper

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investigation before it could identify the real suspects and the

accused in the case, which in our opinion, the police did.

13. The fact that at a given point of time, some person other than

the accused were suspected to have committed the offence would

lose its relevance once the investigation is completed, report under

Section 173 Cr.P.C. is filed before the Court of competent

jurisdiction, of course, unless the Court, upon presentation of the

report finds that some other person is also liable to be summoned

as an accused or directs further investigation. In the present case,

the possibility of PW6, Dhaniram, having committed the crime is

ruled out in view of the evidence collected during the investigation.

It is nobody’s case before us that there is even an iota of evidence

which points towards Bhupendra for commission of such an

offence.

14. Now, we may deal with the first contention raised on behalf of

the appellants with reference to the credibility of the testimony of

PW6. The learned counsel appearing for the appellants, contended

that PW6, the sole eye-witness, cannot be relied upon to convict the

accused for the reason that the witness, being a suspect himself, is

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not credible and has not spoken the truth before the Court. It is

also contended that the Court should deal with the statement of a

sole eye-witness cautiously and it may not be very safe to rely upon

the testimony of such a witness. In support of his contention, he

derives strength from the judgments of this Court in the cases of

Joseph v. State of Kerala [(2003) 1 SCC 465] and State of Haryana

v. Inder Singh & Ors. [(2002) 9 SCC 537]. In the case of Joseph,

this Court has stated the principle that where there is a sole

witness to the incident, his evidence has to be accepted with an

amount of caution and after testing it on the touchstone of evidence

tendered by other witnesses or the material evidences placed on

record. This Court further stated that Section 134 of the Indian

Evidence Act does not provide for any particular number of

witnesses and it would be permissible for the Court to record and

sustain a conviction on the evidence of a solitary eye-witness. But,

at the same time, such a course can be adopted only if evidence

tendered by such a witness is credible, reliable, in tune with the

case of the prosecution and inspires implicit confidence. In the

case of Inder Singh (supra), the Court held that it is not the quantity

but the quality of the witnesses which matters for determining the

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guilt or innocence of the accused. The testimony of a sole witness

must be confidence-inspiring and beyond suspicion, thus, leaving

no doubt in the mind of the Court.

15. The principles stated in these judgments are indisputable.

None of these judgments say that the testimony of the sole eye-

witness cannot be relied upon or conviction of an accused cannot

be based upon the statement of the sole eye-witness to the crime.

All that is needed is that the statement of the sole eye-witness

should be reliable, should not leave any doubt in the mind of the

Court and has to be corroborated by other evidence produced by

the prosecution in relation to commission of the crime and

involvement of the accused in committing such a crime.

16. In light of this principle, now we may examine the facts of the

present case. PW6, at the time of occurrence and even at the time

of recording of the statement, was a young boy of 16 years. He had

been serving in the house of Indrajeet, PW1, for a number of years

prior to the date of incident. It was his regular feature to have his

meals as well as sleep in the verandah of the house of PW1. There

existed no motive for him to commit the crime. He was kept under

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continuous threat to his life right from the time Ranjeet and others

entered the house of the deceased Rajkumari till the accused were

taken in police custody after recording evidence of various persons,

more importantly, PW1 (Indrajeet), PW12 (Sugaribai), PW6

(Dhaniram) and PW7 (Dr. Shila Saha). His statement clearly

narrates how the offence was committed by the accused and there

is nothing abnormal and inconsistent in his testimony.

Furthermore, his statement is fully corroborated by medical

evidence of PW7, Dr. Shila Saha and the testimony of PW12,

Sugaribai. The confirmation of blood on the piece of saree used for

gagging the mouth of Rajmukari and the confirmation of presence

of semen and human spermatozoa on the vaginal slides of

Rajkumari and the findings during autopsy duly proved by PW7,

Dr. Shila Saha and the corroboration of other witnesses including

that of the Investigating Officer leave no room for any doubt that

the appellants had committed house trespass in the house of

Rajkumari and committed the offence with which they are charged.

A very significant piece of evidence in the present case is the

medical evidence and the injuries inflicted upon the body of the

deceased. Both, the external and internal injuries that the

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deceased suffered as a consequence of rape and the strangulation

clearly indicate that the crime could not have been committed by a

single person. Once that possibility is ruled out, it would attach

greater reliability to the testimony of PW6. Thus, the statement of

PW6, despite he being the sole eye-witness, need not be doubted by

this Court. It fully satisfies the tests of law enunciated in the above

judgments of this Court. Resultantly, we find no merit in this

submission of the learned counsel appearing for the appellants.

17. The next contention is that there was inordinate delay in

lodging the FIR which gave an opportunity to the police to falsely

implicate the accused. Thus, the entire prosecution story being

founded on the said FIR, needs to be disbelieved by the Court and

the appellants be entitled to acquittal. In this regard, reliance has

been placed upon the judgment of this Court in the case of State of

Gujarat v. Patel Mohan Mulji [AIR 1994 SC 250]. At the very outset,

we may notice that the facts of the case in Patel Mohan Mulji (supra)

are significantly different from the facts of the case in hand. There,

the Court had acquitted the accused not only for the sole reason of

delay in recording the FIR but also for the reason that there was

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close relationship of witnesses with the deceased and the accused.

There were discrepancies in the inquest report and clear conflict

between the medical evidence and the oral evidence. The evidence

of the prosecution was also found to be suffering from serious

infirmities. In the present case, none of these exists. There are

four or five prosecution witnesses, including PW2, PW3, PW4, PW5

and PW10, who had been declared hostile during the course of

hearing of the trial. These witnesses were not the witnesses to the

scene of crime. They were witnesses only to support the fact that

the accused persons were seen together near the house of the

deceased Rajkumari, after all others had gone to their respective

houses, after watching television at the house of the deceased. This

fact is not the determinative factor and does not demolish the case

of the prosecution in its entirety or otherwise. The presence of

Ranjeet Kewat at the house of the deceased, Rajkumari,

immediately after the occurrence and trying to keep a watch on

PW6 clearly shows that the most likely and truthful witness in the

case of the prosecution is PW6. PW6, as already noticed, had

withstood the long cross-examination despite his young age, the

threat extended to him by the accused and being the sole eye-

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witness of such a heinous crime. It goes to the credit of this

witness that despite the fact that other five witnesses had turned

hostile being the person of the village, he nevertheless stood to his

testimony.

18. As far as the delay is concerned, we are not in agreement with

the learned counsel appearing for the appellants that the delay does

not stand explained in the present case. The occurrence took place

at about 11 p.m. at night in a village area where normally by this

time, people go to their respective houses and stay inside thereafter.

After committing the rape on the deceased and her subsequent

death which itself took a considerable time, the accused persons

remained in the house for some time. Thereafter, they made it sure

that PW6 goes to the house of PW12 and tells her incorrectly and

without disclosing the true facts that the deceased was not waking

up despite efforts, which he did and this fact is fully established by

the statement of PW12. In the meanwhile, the news had spread

and one Ashok had rung up PW1 who came to the spot of

occurrence. After seeing his wife in that horrible condition and

doubting that Bhupendra might have committed the crime since by

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that time PW6 had not told him the correct story, he went to the

Police Station and lodged the FIR at about 10.50 a.m. on 10th

August, 2006. Police registered the FIR under Sections 376 and

302 IPC vide Exhibit P16. Thus, there is plausible explanation

available on record of the case file which explains the delay in

lodging the FIR. We also cannot lose sight of the statement of PW4,

father of PW6, who stated that when he went to the Police Station,

he found his son there who informed him that he was in the Police

Station since the past two days. His son had challenged all the four

accused persons in his presence and later he was informed by the

Police that his son was a witness in the case. This witness knew

the accused persons as well as the deceased Rajkumari. He was a

party to the seizure memo, Exhibit P/7 to P/10 though in the Court

he stated that nothing was seized in his presence and, at this stage,

he was declared hostile. The statement of PW6 does not suffer from

any legal or factual infirmity and appears to be the true and correct

version of what actually happened at the scene of occurrence. The

delay, if any, in lodging the FIR, thus, stands explained and is, in

no way, fatal to the case of the prosecution.

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19. Now, we would deal with the contention that the recoveries

effected during the period of investigation are improper and

inadmissible. The report submitted by the FSL, as per Exhibit

P/23, does not indicate or connect the accused with the

commission of the crime and, therefore, the case of the prosecution

should essentially fail. This argument, again, is without any merit.

Firstly, Exhibit P/23 and the effect of the FSL Report have been

appropriately discussed by the High Court in its judgment. The

articles seized, the human blood noticed on Articles A, B, C, D, E,

F1 and F2 and presence of seminal stains and human spermatozoa

on Articles C, D, E, F1, F2, G1, H1, I1, J1 and K1 confirmed.

Seminal stains and human spermatozoa were not found on Articles

A and B. The seminal stains on Articles C, D, E, F1 and F2 were

not sufficient for serological examination. This was so recorded in

Exhibit P23. This document further stated that Articles G2, H2, I2,

J2 and K2 were not examined by the FSL, Raipur. It was further

recorded that in case of necessity, the DNA test could be performed

at Hyderabad. The report also stated that the articles with regard

to the blood group and serum had been sent to Kolkata Laboratory

for futher investigation. Indefinite conclusion of the expert to this

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extent, cannot be treated as a report entirely in favour of the

accused which ipso facto would entitle them for an order of

acquittal. This expert report, has to be examined in conjunction

with the oral evidence and particularly the medical evidence.

Exhibit P/12 is the post mortem report which has depicted various

external and internal injuries on the body of the deceased as afore-

noticed. It is also clear that the cause of death of Rajkumari was

asphyxia due to throttling. It is further clear from the findings in

the post mortem report that petechial hemorrhage of lungs was

present, the right side of heart was filled with blood while the left

chamber was empty and bloody froth was oozing from nostrils and

mouth of the deceased. There has to be a very strong and

compelling reason for the Court to disbelieve an eye-witness.

Statement of PW6 does not suffer from any contradictions nor is at

variance with the case of the prosecution. He was being kept under

a constant watch inasmuch as he was the servant of PW1, whose

brother Ranjeet was one of the accused. Accused was even present

near the dead body of Rajkumari till she was taken for post

mortem. We have already noticed that the expert evidence clearly

demonstrates, particularly in view of the injuries caused to the

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deceased during the heinous crime, that it could not have been

done by a single person and, therefore, involvement of two or more

persons is most probable and in line with the story of the

prosecution. The cumulative effect of the oral/documentary and

expert evidence is that the prosecution has been able to prove its

case beyond any reasonable doubt.

20. It is a case where not only the entire incriminating material

evidence was put to the accused while they were being examined

under Section 313 Cr.P.C. but also that the accused examined two

witnesses DW1, Samelal Kewat and DW2, Kamla, wife of Ranjeet

Singh. In their statements under Section 313 Cr.P.C., they have

taken the stand that they were not present at the place of

occurrence but, in fact, they were present in their respective houses

and as such they have been falsely implicated. The two witnesses

were examined in support of this fact. DW1 has stated that he lives

nearby the house of Rajkumari and he did not hear any noise or

cries on the fateful night. He also stated that Ramnaresh came to

his house at about 10:00 o’clock when he was going to attend the

Ramayana. He further stated that Ramnaresh was in his house

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and, thus, he could not have committed the crime. DW2 is the wife

of Ranjeet. She stated that his husband was sleeping in the house

only and on the said date Ramnaresh, Vishwanath and Amar Singh

had not visited their house. The cross examination of these two

witnesses has clearly created a doubt in regard to the authenticity

of their statements. Firstly, as per the version of the prosecution

and as is even clear from the medical evidence, the mouth of

deceased Rajkumari had been gagged. Therefore, the question of

hearing any noise or screaming would not arise and, secondly, DW2

is the wife of the accused and is bound to speak in his favour as an

interested witness. Furthermore, both these witnesses had not

informed the Police during the course of investigation and even

when the accused were arrested that they had been present at their

respective houses and not at the place of occurrence. In fact, this

has not even been the suggestion of the defence while cross-

examining the prosecution witnesses.

21. In terms of Section 313 Cr.P.C., the accused has the freedom

to maintain silence during the investigation as well as before the

Court. The accused may choose to maintain silence or complete

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denial even when his statement under Section 313 Cr.P.C. is being

recorded, of course, the Court would be entitled to draw an

inference, including adverse inference, as may be permissible to it

in accordance with law. Right to fair trial, presumption of

innocence unless proven guilty and proof by the prosecution of its

case beyond any reasonable doubt are the fundamentals of our

criminal jurisprudence. When we speak of prejudice to an accused,

it has to be shown that the accused has suffered some disability or

detriment in relation to any of these protections substantially.

Such prejudice should also demonstrate that it has occasioned

failure of justice to the accused. One of the other cardinal

principles of criminal justice administration is that the courts

should make a close examination to ascertain whether there was

really a failure of justice or whether it is only a camouflage, as this

expression is perhaps too pliable. [Ref. Rafiq Ahmed @ Rafi v. State

of Uttar Pradesh [(2011) 8 SCC 300].

22. It is a settled principle of law that the obligation to put

material evidence to the accused under Section 313 Cr.P.C. is upon

the Court. One of the main objects of recording of a statement

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under this provision of the Cr.P.C. is to give an opportunity to the

accused to explain the circumstances appearing against him as well

as to put forward his defence, if the accused so desires. But once

he does not avail this opportunity, then consequences in law must

follow. Where the accused takes benefit of this opportunity, then

his statement made under Section 313 Cr.P.C., in so far as it

supports the case of the prosecution, can be used against him for

rendering conviction. Even under the latter, he faces the

consequences in law.

23. In the present case, the accused have denied their presence on

the spot, at the time of occurrence. Thus, it was for them to prove

that they were not present at the place of occurrence and were

entitled to plea of alibi. In our considered opinion, they have

miserably failed to establish this fact. On the contrary, the

behaviour explained by the defence witnesses appears to be

somewhat unnatural in the social set up in which the accused, the

deceased and even some of the prosecution witnesses were living.

They knew each other very well and the normal course of life in a

village is that they are quite concerned with and actively participate

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in each other’s affairs, particularly sad occasions. Ranjeet was

present at the place of occurrence and was holding one of the minor

children of PW1. This supports the statement of PW6 that he was

constantly under threat and watch from either of the accused. The

version put forward by the accused in their statement under

Section 313 Cr.P.C. is unbelievable and unacceptable. There is no

cogent evidence on record to support their plea.

24. For the reasons afore-recorded, we have no hesitation in

holding that the prosecution has been able to prove its case beyond

reasonable doubt. The accused are guilty of committing the offence

under Sections 499, 376(2)(g) and 302 IPC. We hold them guilty of

committing these offences.

The death sentence and principles governing its conversion to life imprisonment

25. Despite the transformation of approach and radical changes in

principles of sentencing across the world, it has not been possible

to put to rest the conflicting views on sentencing policy. The

sentencing policy being a significant and inseparable facet of

criminal jurisprudence, has been inviting the attention of the

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Courts for providing certainty and greater clarity to it. Capital

punishment has been a subject matter of great social and judicial

discussion and catechism. From whatever point of view it is

examined, one undisputable statement of law follows that it is

neither possible nor prudent to state any universal formula which

would be applicable to all the cases of criminology where capital

punishment has been prescribed. It shall always depend upon the

facts and circumstances of a given case. This Court has stated

various legal principles which would be precepts on exercise of

judicial discretion in cases where the issue is whether the capital

punishment should or should not be awarded.

26. The law requires the Court to record special reasons for

awarding such sentence. The Court, therefore, has to consider

matters like nature of the offence, how and under what

circumstances it was committed, the extent of brutality with which

the offence was committed, the motive for the offence, any

provocative or aggravating circumstances at the time of commission

of the crime, the possibility of the convict being reformed or

rehabilitated, adequacy of the sentence of life imprisonment and

Page 29

other attendant circumstances. These factors cannot be similar or

identical in any two given cases. Thus, it is imperative for the

Court to examine each case on its own facts, in light of the

enunciated principles. It is only upon application of these

principles to the facts of a given case that the Court can arrive at a

final conclusion whether the case in hand is one of the ‘rarest of

rare’ cases and imposition of death penalty alone shall serve the

ends of justice. Further, the Court would also keep in mind that if

such a punishment alone would serve the purpose of the judgment,

in its being sufficiently punitive and purposefully preventive.

27. In order to examine this aspect in some greater depth and with

objectivity, it is necessary for us to reiterate the various guiding

factors. Suffices it to make reference to a recent judgment of this

Court in the case of State of Maharashtra v. Goraksha Ambaji Adsul

[(2011) 7 SCC 437], wherein this Court discussed the law in some

detail and enunciated the principles as follows :

“30. The principles governing the sentencing policy in our criminal jurisprudence have more or less been consistent, right from the pronouncement of the Constitution Bench judgment of this Court in Bachan Singh v.

Page 30

State of Punjab. Awarding punishment is certainly an onerous function in the dispensation of criminal justice. The court is expected to keep in mind the facts and circumstances of a case, the principles of law governing award of sentence, the legislative intent of special or general statute raised in the case and the impact of awarding punishment. These are the nuances which need to be examined by the court with discernment and in depth.

31. The legislative intent behind enacting Section 354(3) CrPC clearly demonstrates the concern of the legislature for taking away a human life and imposing death penalty upon the accused. Concern for the dignity of the human life postulates resistance to taking a life through law's instrumentalities and that ought not to be done, save in the rarest of rare cases, unless the alternative option is unquestionably foreclosed. In exercise of its discretion, the court would also take into consideration the mitigating circumstances and their resultant effects.

32. The language of Section 354(3) demonstrates the legislative concern and the conditions which need to be satisfied prior to imposition of death penalty. The words, “in the case of sentence of death, the special reasons for such sentence” unambiguously demonstrate the command of the legislature that such reasons have to be recorded for imposing the punishment of death sentence. This is how the concept of the rarest of rare cases has emerged in law. Viewed from that angle, both the legislative provisions and judicial

Page 31

pronouncements are at ad idem in law. The death penalty should be imposed in the rarest of rare cases and that too for special reasons to be recorded. To put it simply, a death sentence is not a rule but an exception. Even the exception must satisfy the prerequisites contemplated under Section 354(3) CrPC in light of the dictum of the Court in Bachan Singh.

33. The Constitution Bench judgment of this Court in Bachan Singh has been summarised in para 38 in Machhi Singh v. State of Punjab and the following guidelines have been stated while considering the possibility of awarding sentence of death: (Machhi Singh case, SCC p. 489)

“(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 requires to be taken into consideration along with the circumstances of the ‘crime’.

(iii) Life imprisonment is the rule and death sentence is an exception. … 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

Page 32

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.”

(emphasis supplied)

34. The judgment in Bachan Singh, did not only state the above guidelines in some elaboration, but also specified the mitigating circumstances which could be considered by the Court while determining such serious issues and they are as follows: (SCC p. 750, para 206)

“206. … ‘Mitigating circumstances.—In the exercise of its discretion in the above cases, the court shall take into account the following circumstances:

(1) That the offence was committed under the influence of extreme mental or emotional disturbance.

(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.

(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.

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(4) The probability that the accused can be reformed and rehabilitated.

The State shall by evidence prove that the accused does not satisfy Conditions (3) and (4) above.

(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.”

35. Now, we may examine certain illustrations arising from the judicial pronouncements of this Court.

36. In D.K. Basu v. State of W.B. this Court took the view that custodial torture and consequential death in custody was an offence which fell in the category of the rarest of rare cases. While specifying the reasons in support of such decision, the Court awarded death penalty in that case.

37. In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra this Court also spelt out in paras 56 to 58 that nature, motive, impact of a crime, culpability, quality of evidence, socio-economic circumstances, impossibility of rehabilitation are the factors

Page 34

which the court may take into consideration while dealing with such cases. In that case the friends of the victim had called him to see a movie and after seeing the movie, a ransom call was made, but with the fear of being caught, they murdered the victim. The Court felt that there was no evidence to show that the criminals were incapable of reforming themselves, that it was not a rarest of the rare case, and therefore, declined to award death sentence to the accused.

38. Interpersonal circumstances prevailing between the deceased and the accused was also held to be a relevant consideration in Vashram Narshibhai Rajpara v. State of Gujarat where constant nagging by family was treated as the mitigating factor, if the accused is mentally unbalanced and as a result murders the family members. Similarly, the intensity of bitterness which prevailed and the escalation of simmering thoughts into a thirst for revenge and retaliation were also considered to be a relevant factor by this Court in different cases.

39. This Court in Satishbhushan Bariyar also considered various doctrines, principles and factors which would be considered by the Courts while dealing with such cases. The Court discussed in some elaboration the applicability of the doctrine of rehabilitation and the doctrine of prudence. While considering the application of the doctrine of rehabilitation and the extent of weightage to be given to the mitigating circumstances, it noticed the nature of the evidence and the background of the accused. The conviction in

Page 35

that case was entirely based upon the statement of the approver and was a case purely of circumstantial evidence. Thus, applying the doctrine of prudence, it noticed the fact that the accused were unemployed, young men in search of job and they were not criminals. In execution of a plan proposed by the appellant and accepted by others, they kidnapped a friend of theirs. The kidnapping was done with the motive of procuring ransom from his family but later they murdered him because of the fear of getting caught, and later cut the body into pieces and disposed it off at different places. One of the accused had turned approver and as already noticed, the conviction was primarily based upon the statement of the approver.

40. Basing its reasoning on the application of doctrine of prudence and the version put forward by the accused, the Court, while declining to award death penalty and only awarding life imprisonment, held as under: (Satishbhushan Bariyar case, SCC pp. 551 & 559-60, paras 135, 168-69 & 171-73)

“135. Right to life, in its barest of connotation would imply right to mere survival. In this form, right to life is the most fundamental of all rights. Consequently, a punishment which aims at taking away life is the gravest punishment. Capital punishment imposes a limitation on the essential content of the fundamental right to life, eliminating it irretrievably. We realise the absolute nature of this right, in the sense that it is a source of all other rights. Other rights may be limited, and may

Page 36

even be withdrawn and then granted again, but their ultimate limit is to be found in the preservation of the right to life. Right to life is the essential content of all rights under the Constitution. If life is taken away, all other rights cease to exist.

* * *

168. We must, however, add that in a case of this nature where the entire prosecution case revolves round the statement of an approver or is dependant upon the circumstantial evidence, the prudence doctrine should be invoked. For the aforementioned purpose, at the stage of sentencing evaluation of evidence would not be permissible, the courts not only have to solely depend upon the findings arrived at for the purpose of recording a judgment of conviction, but also consider the matter keeping in view the evidences which have been brought on record on behalf of the parties and in particular the accused for imposition of a lesser punishment. A statement of approver in regard to the manner in which crime has been committed vis-à-vis the role played by the accused, on the one hand, and that of the approver, on the other, must be tested on the touchstone of the prudence doctrine.

169. The accused persons were not criminals. They were friends. The deceased was said to have been selected because his father was rich. The motive, if any, was to collect some money. They were not professional killers. They have

Page 37

no criminal history. All were unemployed and were searching for jobs. Further, if age of the accused was a relevant factor for the High Court for not imposing death penalty on Accused 2 and 3, the same standard should have been applied to the case of the appellant also who was only two years older and still a young man in age. Accused 2 and 3 were as much a part of the crime as the appellant. Though it is true, that it was he who allegedly proposed the idea of kidnapping, but at the same time it must not be forgotten that the said plan was only executed when all the persons involved gave their consent thereto.

* * * 171. Section 354(3) of the Code of

Criminal Procedure requires that when the conviction is for an offence punishable with death or in the alternative with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and in the case of sentence of death, the special reasons thereof. We do not think that the reasons assigned by the courts below disclose any special reason to uphold the death penalty. The discretion granted to the courts must be exercised very cautiously especially because of the irrevocable character of death penalty. Requirements of law to assign special reasons should not be construed to be an empty formality.

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172. We have previously noted that the judicial principles for imposition of death penalty are far from being uniform. Without going into the merits and demerits of such discretion and subjectivity, we must nevertheless reiterate the basic principle, stated repeatedly by this Court, that life imprisonment is the rule and death penalty an exception. Each case must therefore be analysed and the appropriateness of punishment determined on a case-by-case basis with death sentence not to be awarded save in the ‘rarest of the rare’ case where reform is not possible. Keeping in mind at least this principle we do not think that any of the factors in the present case discussed above warrants the award of the death penalty. There are no special reasons to record the death penalty and the mitigating factors in the present case, discussed previously, are, in our opinion, sufficient to place it out of the ‘rarest of rare’ category.

173. For the reasons aforementioned, we are of the opinion that this is not a case where death penalty should be imposed. The appellant, therefore, instead of being awarded death penalty, is sentenced to undergo rigorous imprisonment for life. Subject to the modification in the sentence of the appellant (A-1) mentioned hereinbefore, both the appeals of the appellant as also that of the State are dismissed.”

(emphasis in original)

41. The above principle, as supported by case illustrations, clearly depicts the various precepts

Page 39

which would govern the exercise of judicial discretion by the courts within the parameters spelt out under Section 354(3) CrPC. Awarding of death sentence amounts to taking away the life of an individual, which is the most valuable right available, whether viewed from the constitutional point of view or from the human rights point of view. The condition of providing special reasons for awarding death penalty is not to be construed linguistically but it is to satisfy the basic features of a reasoning supporting and making award of death penalty unquestionable. The circumstances and the manner of committing the crime should be such that it pricks the judicial conscience of the court to the extent that the only and inevitable conclusion should be awarding of death penalty.”

28. In Machhi Singh & Ors. v. State of Rajasthan [(1983) 3 SCC

470], this Court stated certain relevant considerations like the

manner of commission of murder, motive for commission of

murder, anti-social or socially abhorrent nature of the crime,

magnitude of crime and the personality of the victim of murder.

These considerations further demonstrate that the matter has to be

examined with reference to a particular case, for instance, murder

of an innocent child who could not have or has not provided even

an excuse, much less a provocation for murder. Similarly, murder

of a helpless woman who might be relying on a person because of

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her age or infirmity, if murdered by that person, would be an

indicator of breach of relationship or trust as the case may be. It

would neither be proper nor probably permissible that the judicial

approach of the court in such matters treat one of the stated

considerations or factors as determinative. The court should

examine all or majority of the relevant considerations to spell

comprehensively the special reasons to be recorded in the order, as

contemplated under Section 354(3) of the Cr.P.C.

29. In the case of Dhananjoy Chatterjee @ Dhana v. State of West

Bengal [(1994) 2 SCC 220] while affirming the award of death

sentence by the High Court, this Court noticed that ‘in recent years,

the rising crime rate-particularly violent crime against women has

made the criminal sentencing by the courts a subject of concern’.

The Court reiterated the principle that it is not possible to lay down

any cut and dry formula relating to imposition of sentence but the

object of sentencing should be to see that the crime does not go

unpunished and the victim of crime, as also the society, has the

satisfaction that justice has been done to it. The Court held as

follows:-

Page 41

“15. In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.”

30. In this case, the Court was concerned with the case of a

security guard who had been transferred at the complaint of a lady

living in the flats with regard to teasing of her young girl child. The

security guard went up to the flat of the lady, committed rape on

her daughter and then murdered her brutally. The Court found it

to be a fit case for imposition of capital punishment.

31. Again, in the case of Surja Ram v. State of Rajasthan [(1996) 6

SCC 271], this Court affirmed the death sentence awarded by the

High Court primarily taking into consideration that there was no

provocation and the manner in which the crime was committed was

brutal. Noticing that the Court has to award a punishment which

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is just and fair by administering justice tempered with such mercy

not only as the criminal may justly deserve but also to the rights of

the victims of the crime to have the assailant appropriately

punished and the society's reasonable expectation from the court

for the appropriate deterrent punishment conforming to the gravity

of the offence and consistent with the public abhorrence for the

heinous crime committed by the accused. The Court further held

as under:-

“18. After giving our anxious consideration to the facts and circumstances of the case, it appears to us that for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced in a dispassionate manner. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle McGautha v. State of California that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime of murder. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime of murder, the discretionary judgment in the facts of each

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case, is the only way in which such judgment may be equitably distinguished.”

32. This Court in Prajeet Kumar Singh v. State of Bihar [(2008) 4

SCC 434], B.A. Umesh v. Registrar General, High Court of Karnataka

[(2011) 3 SCC 85], State of Rajasthan v. Kashi Ram [(2006) 12 SCC

254] and Atbir v. Government of NCT of Delhi [(2010) 9 SCC 1] had

confirmed the death sentence awarded by the High Courts for

different reasons after applying the principles enunciated in one or

more afore-referred judgments.

33. Now, we may notice the cases which were relied upon by the

learned counsel appearing for the appellants and wherein this

Court had declined to confirm the imposition of capital punishment

treating them not to be the rarest of rare cases.

34. In Ronny @ Ronald James Alwaris Etc. v. State of Maharashtra

[(1998) 3 SCC 625], the Court while relying upon the judgment of

this Court in the case of Allauddin Mian & Ors. v. State of Bihar

[(1989) 3 SCC 5], held that the choice of the death sentence has to

be made only in the ‘rarest of rare’ cases and that where culpability

of the accused has assumed depravity or where the accused is

Page 44

found to be an ardent criminal and menace to the society. The

Court also noticed the above-stated principle that the Court should

ordinarily impose a lesser punishment and not the extreme

punishment of death which should be reserved for exceptional

cases only. The Court, while considering the cumulative effect of all

the factors such as the offences not committed under the influence

of extreme mental or emotional disturbance and the fact that the

accused were young and the possibility of their reformation and

rehabilitation could not be ruled out, converted death sentence into

life imprisonment.

35. Similarly, in the case of Bantu @ Naresh Giri v. State of M.P.

[(2001) 9 SCC 615] while dealing with the case of rape and murder

of a six year old girl, this Court found that the case was not one of

the ‘rarest of rare’ cases. The Court noticed that, accused was less

than 22 years at the time of commission of the offence, there were

no injuries on the body of the deceased and the death probably

occurred as a result of gagging of the nostril by the accused. Thus,

the Court while noticing that the crime was heinous, commuted the

sentence of death to one of life imprisonment.

Page 45

36. The above judgments provide us with the dicta of the Court

relating to imposition of death penalty. Merely because a crime is

heinous per se may not be a sufficient reason for the imposition of

death penalty without reference to the other factors and attendant

circumstances.

37. Most of the heinous crimes under the IPC are punishable by

death penalty or life imprisonment. That by itself does not suggest

that in all such offences, penalty of death alone should be awarded.

We must notice, even at the cost of repetition, that in such cases

awarding of life imprisonment would be a rule, while ‘death’ would

be the exception. The term ‘rarest of rare’ case which is the

consistent determinative rule declared by this Court, itself suggests

that it has to be an exceptional case. The life of a particular

individual cannot be taken away except according to the procedure

established by law and that is the constitutional mandate. The law

contemplates recording of special reasons and, therefore, the

expression ‘special’ has to be given a definite meaning and

connotation. ‘Special reasons’ in contra-distinction to ‘reasons’

simplicitor conveys the legislative mandate of putting a restriction

Page 46

on exercise of judicial discretion by placing the requirement of

special reasons.

38. Since, the later judgments of this Court have added to the

principles stated by this Court in the case of Bachan Singh (supra)

and Machhi Singh (supra), it will be useful to re-state the stated

principles while also bringing them in consonance, with the recent

judgments.

39. The law enunciated by this Court in its recent judgments, as

already noticed, adds and elaborates the principles that were stated

in the case of Bachan Singh (supra) and thereafter, in the case of

Machhi Singh (supra). The aforesaid judgments, primarily dissect

these principles into two different compartments – one being the

‘aggravating circumstances’ while the other being the ‘mitigating

circumstances’. The Court would consider the cumulative effect of

both these aspects and normally, it may not be very appropriate for

the Court to decide the most significant aspect of sentencing policy

with reference to one of the classes under any of the following heads

while completely ignoring other classes under other heads. To

balance the two is the primary duty of the Court. It will be

Page 47

appropriate for the Court to come to a final conclusion upon

balancing the exercise that would help to administer the criminal

justice system better and provide an effective and meaningful

reasoning by the Court as contemplated under Section 354(3)

Cr.P.C.

Aggravating Circumstances :

(1) The offences relating to the commission of heinous crimes 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 convictions.

(2) The offence was committed while the offender was engaged in

the commission of another serious offence.

(3) The offence was committed with the intention to create a fear

psychosis in the public at large and was committed in a public

place by a weapon or device which clearly could be hazardous

to the life of more than one person.

Page 48

(4) The offence of murder was committed for ransom or like

offences to receive money or monetary benefits.

(5) Hired killings.

(6) The offence was committed outrageously for want only while

involving inhumane treatment and torture to the victim.

(7) The offence was committed by a person while in lawful

custody.

(8) The murder or the offence was committed to prevent a person

lawfully carrying out his duty like arrest or custody in a place

of lawful confinement of himself or another. For instance,

murder is of a person who had acted in lawful discharge of his

duty under Section 43 Cr.P.C.

(9) When the crime is enormous in proportion like making an

attempt of murder of the entire family or members of a

particular community.

(10) When the victim is innocent, helpless or a person relies upon

the trust of relationship and social norms, like a child,

helpless woman, a daughter or a niece staying with a

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father/uncle and is inflicted with the crime by such a trusted

person.

(11) When murder is committed for a motive which evidences total

depravity and meanness.

(12) When there is a cold blooded murder without provocation.

(13) The crime is committed so brutally that it pricks or shocks not

only the judicial conscience but even the conscience of the

society.

Mitigating Circumstances :

(1) The manner and circumstances in and under which the

offence was committed, for example, extreme mental or

emotional disturbance or extreme provocation in

contradistinction to all these situations in normal course.

(2) The age of the accused is a relevant consideration but not a

determinative factor by itself.

(3) The chances of the accused of not indulging in commission of

the crime again and the probability of the accused being

reformed and rehabilitated.

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(4) The condition of the accused shows that he was mentally

defective and the defect impaired his capacity to appreciate the

circumstances of his criminal conduct.

(5) The circumstances which, in normal course of life, would

render such a behavior possible and could have the effect of

giving rise to mental imbalance in that given situation like

persistent harassment or, in fact, leading to such a peak of

human behavior that, in the facts and circumstances of the

case, the accused believed that he was morally justified in

committing the offence.

(6) Where the Court upon proper appreciation of evidence is of the

view that the crime was not committed in a pre-ordained

manner and that the death resulted in the course of

commission of another crime and that there was a possibility

of it being construed as consequences to the commission of

the primary crime.

(7) Where it is absolutely unsafe to rely upon the testimony of a

sole eye-witness though prosecution has brought home the

guilt of the accused.

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40. While determining the questions relateable to sentencing

policy, the Court has to follow certain principles and those

principles are the loadstar besides the above considerations in

imposition or otherwise of the death sentence.

Principles :

(1) The Court has to apply the test to determine, if it was the

‘rarest of rare’ case for imposition of a death sentence.

(2) In the opinion of the Court, imposition of any other

punishment, i.e., life imprisonment would be completely inadequate

and would not meet the ends of justice.

(3) Life imprisonment is the rule and death sentence is an

exception.

(4) The option to impose sentence of imprisonment for life cannot

be cautiously exercised having regard to the nature and

circumstances of the crime and all relevant considerations.

(5) The method (planned or otherwise) and the manner (extent of

brutality and inhumanity, etc.) in which the crime was committed

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and the circumstances leading to commission of such heinous

crime.

41. Stated broadly, these are the accepted indicators for the

exercise of judicial discretion but it is always preferred not to fetter

the judicial discretion by attempting to make the excessive

enumeration, in one way or another. In other words, these are the

considerations which may collectively or otherwise weigh in the

mind of the Court, while exercising its jurisdiction. It is difficult to

state it as an absolute rule. Every case has to be decided on its

own merits. The judicial pronouncements, can only state the

precepts that may govern the exercise of judicial discretion to a

limited extent. Justice may be done on the facts of each case.

These are the factors which the Court may consider in its

endeavour to do complete justice between the parties.

42. The Court then would draw a balance-sheet of aggravating and

mitigating circumstances. Both aspects have to be given their

respective weightage. The Court has to strike a balance between

the two and see towards which side the scale/balance of justice

tilts. The principle of proportion between the crime and the

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punishment is the principle of ‘just deserts’ that serves as the

foundation of every criminal sentence that is justifiable. In other

words, the ‘doctrine of proportionality’ has a valuable application to

the sentencing policy under the Indian criminal jurisprudence.

Thus, the court will not only have to examine what is just but also

as to what the accused deserves keeping in view the impact on the

society at large.

43. Every punishment imposed is bound to have its effect not only

on the accused alone, but also on the society as a whole. Thus, the

Courts should consider retributive and deterrent aspect of

punishment while imposing the extreme punishment of death.

44. Wherever, the offence which is committed, manner in which it

is committed, its attendant circumstances and the motive and

status of the victim, undoubtedly brings the case within the ambit

of ‘rarest of rare’ cases and the Court finds that the imposition of

life imprisonment would be inflicting of inadequate punishment, the

Court may award death penalty. Wherever, the case falls in any of

the exceptions to the ‘rarest of rare’ cases, the Court may exercise

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its judicial discretion while imposing life imprisonment in place of

death sentence.

45. Guided by the above principles, now, we shall proceed to deal

with the contentions raised on behalf of the appellants that the

present case is not one of the ‘rarest of rare’ cases where the Court

should find that imposition of life imprisonment would be entirely

inadequate, even if the accused are held guilty of the offences

charged.

46. We have already held that all the accused in the present

appeals are guilty of the offences under Sections 376(2)(g) and 302

read with Section 34 IPC. On the question of quantum of sentence,

the argument raised on behalf of the appellants is that all the

accused were of young age at the time of commission of the crime,

i.e. 21 to 31 years of age. They had no intention to kill the deceased

and it was co-accidental that the death of the deceased occurred.

Even if the accused are held guilty for the offences under Sections

376(2)(g) and 302 IPC, still it is not the ‘rarest of rare’ case which

would justify imposition of capital punishment, particularly in the

facts and circumstances of the case.

Page 55

47. To the contra, the learned counsel for the State has contended

that the crime has been committed brutally. Accused-Ranjeet,

being the brother-in-law of the deceased owed a duty to protect

rather than expose her to such sexual assault and death, along

with his friends. The manner in which the crime has been

committed and the attendant circumstances fully justify imposition

of death sentence upon the accused. The crime is heinous and has

been committed brutally, without caring for the future of the two

infants of the deceased, who were sleeping by her side at the time of

the crime. There cannot be two opinions that the offence

committed by the appellants is very heinous and all of them have

taken advantage of the helplessness of a mother of two infants at

that odd hour of the night and in the absence of her husband.

48. There are certain circumstances, which if taken collectively,

would indicate that it is not a case where the Court would

inevitably arrive at only one conclusion, and no other, that

imposition of death penalty is the only punishment that would

serve the ends of justice. Firstly, the age of all the appellants is one

of the relevant considerations before the Court. Secondly,

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according to PW1, Indrajeet, the deceased Rajkumari was his

mistress and he had not married her, though he had two children

with her. According to him, she was earlier married to one

Bhupendra and he was not maintaining good relations with the said

Bhupendra on account of his living with the deceased. This may

have been a matter of some concern for the family, including

Ranjeet, the brother of PW1. Thirdly, it has come in evidence that

during investigation, the Investigating Officer recovered a piece of

saree from the place of occurrence, which was blood-stained.

According to the statement of the PW7, Dr. Shila Saha, there were

external injuries on the body of the deceased. Petechial

hemorrhage was present in the left and right lungs. Blood mixed

with froth was flowing out from the mouth of the deceased which

was indicative of the possibility of the accused persons having

gagged her mouth with the piece of the saree while committing rape

upon her. Thus, the possibility of death of the deceased occurring

co-accidentally as a result of this act committed on her by the

accused cannot be ruled out. In similar circumstances, in the case

of Bantu @ Naresh Giri (supra) (supra), this Court took the view that

it was not a death caused intentionally, despite the fact that it was

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a case of rape being committed on a minor girl. Lastly, there is no

attempt made by the prosecution to prove on record that these

accused are criminals or are incapable of being reformed even if

given a chance to improve themselves. While relying upon the

judgment of this Court in the case of Goraksha Ambaji Adsul

(supra), the contention raised on behalf of the accused is that, it is

not a case where no other alternative is available with the Court

except to award death sentence to the accused and that they are

likely to prove a menace to the society. It is further stated that the

statement of the sole witness is not credible as he himself fell within

the range of suspicion and a number of other witnesses had turned

hostile. There are contradictions and discrepancies in the

statements of the witnesses. The accused are neither previous

convicts nor involved in any other crime. Thus, given a chance,

they are capable of being reformed and be law-abiding citizens.

49. Having dealt with these contentions at some length in the

earlier part of the judgment, we do not consider it necessary to

again deliberate on these questions. Suffices it to note that the

accused are guilty of the offences for which they were charged. It is

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correct that the possibility of their being reformed cannot be ruled

out. The Court has to consider various parameters afore-stated and

balance the mitigating circumstances against the need for

imposition of capital punishment. The factors to be considered

could be different than the mitigating circumstances. While we

cumulatively examine the various principles and apply them to the

facts of the present case, it appears to us that the age of the

accused, possibility of the death of the deceased occurring

accidently and the possibility of the accused reforming themselves,

they cannot be termed as ‘social menace’. It is unfortunate but a

hard fact that all these accused have committed a heinous and

inhumane crime for satisfaction of their lust, but it cannot be held

with certainty that this case falls in the ‘rarest of rare’ cases. On

appreciation of the evidence on record and keeping the facts and

circumstances of the case in mind, we are unable to hold that any

other sentence but death would be inadequate.

50. Accordingly, while commuting the sentence of death to that for

life imprisonment (21 years), we partially allow their appeals only

with regard to the quantum of sentence.

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…………………………….,J. [A.K. Patnaik]

…………………………….,J. [Swatanter Kumar]

New Delhi; February 28, 2012.