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NON­REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1396­97 OF 2012

Swapan Kumar Jha @ Sapan Kumar  .. Appellant

Versus

State of Jharkhand &Anr. .. Respondents

WITH

Criminal Appeal No.1453 of 2018 (@SLP (Crl.) No.7902 of 2012)

WITH

Criminal Appeal No.1435 of 2012

J U D G M E N T

Leave granted in SLP (Criminal) No.7902 of 2012.

2. The instant appeals have been filed against the final common

judgment and order dated 29.07.2011 of the High Court of

Jharkhand at Ranchi in a batch of three appeals (Criminal Appeal No.

669 of 2010, Criminal Appeal No. 905 of 2010 and Criminal Appeal

No. 779 of 2010) and Death Reference No. 2 of 2010.

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3. By the impugned judgment, the High Court dismissed the

aforementioned appeals arising out of the judgment and order of

conviction and sentence dated 1.07.2010 and 7.07.2010 of the

Additional Sessions Judge, Dhanbad in Sessions Trial No. 88/200.

The  Sessions  Court had convicted the three accused for offences

punishable under Sections 364­A, 302 and 201/34, IPC for

kidnapping for ransom and murder of Sumit Kumar Ojha @ Govind, a

19­year­old student, and causing disappearance of evidence (i.e the

body of the deceased).  

Vide the judgment of the Sessions Court, the appellant Swapan

Kumar Jha @ Sapan Kumar (hereinafter “appellant Swapan Kumar”),

was sentenced to death, and the appellant Amarendra Kumar Sharma

@ Vicky (hereinafter “appellant Vicky”) and the appellant Rocky Dutta

herein (hereinafter “appellant Rocky”) were sentenced to R.I. for life

and fine of Rs. 10,000 each (6 months’ R.I. in case of default) for the

offences punishable under S. 364­A and 302, IPC. All the three

accused were further  sentenced to  7 years’ rigorous  imprisonment

and fine of Rs. 10,000 each (6 months’ R.I. in case of default) for the

offence punishable under Section 201/34, IPC.

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4. Criminal Appeal No. 1396­97 of 2012 arises out of the order of

confirmation of the conviction and sentence of the appellant Swapan

Kumar by the High Court in Death Reference No. 2 of 2010 and Crl.

Appeal No. 905 of 2010. At the same time, Criminal Appeal No. 1435

of 2012 and Criminal Appeal arising out of SLP (Criminal) 7902/2012

by the convicted accused Vicky and Rocky respectively arise out of

the confirmation of their conviction and sentence by the High Court in

Crl. Appeal Nos. 905 and 779 of 2010.  

5.  The case for the prosecution in brief is that on 28.09.2008 at

about 4.30 p.m., the deceased Sumit left his home after receiving a

phone call, stating that he would be back within half an hour, but did

not return. Eventually, a missing person’s report was lodged at the

Jharia Police Station on 29.09.2008 by the informant, the deceased’s

father. On the morning of 1.10.2008, an unidentified ransom call for

Rs. 20 lakhs was received at the landline telephone at the deceased’s

house, pursuant to which a written report was lodged at Jharia Police

Station under section 364­A, IPC.   On the basis of call records, two

mobile phones were seized and the accused were arrested. Based on

the confessional statements of the accused, the deceased’s body was

recovered, after which Section 302/201/34, IPC were also added, on

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23.10.2008. During the investigation, a white Indica car used by the

accused was also seized.

6.  According to the prosecution, the appellant Swapan Kumar and

the appellant Vicky had initially attempted to kidnap Gautam (PW6),

the older brother of the deceased. These brothers were the sons of the

appellant Swapan Kumar’s mother’s brother, i.e. the informant. The

accused Swapan Kumar & Vicky had travelled to Kolkata, in a hired

Indica (driven by the driver DulalMahto (PW2)), where Gautam was

studying, and invited him to go for a ride with them, on the pretext

that they had purchased a new car. But they dropped their plans of

kidnapping him once he informed his roommate over SMS that he

was in their company. Next, they set sights on the deceased, inducing

him to meet up with them. They picked him up in their  Indica at

Children’s Park, Jharia. They visited a place called Khalsa Hotel for

drinking alcohol, where the deceased refused to drink, and the two

accused later purchased more liquor and forced him to drink, and

took him to the appellant Vicky’s houseat Giridih, where the appellant

Rocky also joined them. Here, the deceased was drugged, and then

was taken towards Kolkata. They then made a call demanding Rs. 20

lakhs as ransom from the informant.

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The dead body of  Sumit was recovered from the graveyard at

Bhandaridih,  district  Giridih on 19.10.2008,  in the presence of  an

Executive  Magistrate,  witnesses  and several  other  members  of the

public, on the basis of the statement of the appellant Swapan Kumar.

The process of exhumation was videographed. The body was identified

by  the deceased’s  parents,  brother  and uncle (PW 9,  8,  6  and 1).

Though the body was somewhat putrefied, the witnesses  identified

the victim’s clothes  and  janeoandmauli  (holy threads) and  noticed

surgical marks on the body for an appendix removal operation, which

had been performed on  the  deceased at  an earlier  age.  Later, the

absence of the appendix was confirmed through the testimony of the

doctor who conducted the post mortem (PW10), speaking about the

post mortem report (Exhibit 4). The cause of death was found to be

asphyxia caused by strangulation.

7.  The Trial Court, upon a meticulous examination of the evidence,

proceeded to convict the appellants for kidnapping for ransom,

murder  and causing  disappearance  of evidence.  Notably,  under  S.

364­A and 302, IPC the appellant Swapan Kumar was sentenced to

death,  but the two other accused were awarded life  imprisonment.

The High Court confirmed the judgment and order of conviction and

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sentence after looking at the material on record. Both Courts found

that there was an unbroken chain of circumstance pointing towards

the guilt of the appellants. It is worthwhile to note that the High Court

agreed with the Trial Court on the aspect of the prominence of the

role played by the appellant Swapan Kumar.

8.  Heard the counsel on both the sides.

9.  On a close  reading  of the  evidence on record,  as  well  as the

judgments of the Trial Court and the High Court, it is evident that

those Courts had sufficient reasons to conclude that the three

appellants were guilty of the offences of kidnapping for ransom,

murder and disappearance of evidence.

As far as the offence of kidnapping is concerned, the testimony

of the family of the victim (especially his father, the informant (PW9),

his mother (PW8), and his brother (PW6)), as well as the testimony of

the driver of the hired Indica (PW2), clearly establishes that the victim

was last seen in the company  of the accused, and  points to the

manner in which the informant’s sons were identified to target him for

ransom, and the victim enticed by the appellants. While PW8 and 9

described how the victim had left to meet a “friend” on receiving a call

at home, PW4 and 5 (persons who knew the victim) witnessed him

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getting into a white  Indica with three occupants.  The testimony of

PW2  has been crucial in indicating how the appellants had first

attempted to kidnap PW6, before moving on to the victim. This is also

corroborated by the testimony of  PW6, who described how he was

dropped back by the appellants after he informed his roommate of his

whereabouts. According to PW2, after this attempt, he had eventually

driven the appellants Swapan Kumar and Vicky to Jharia, where they

called  and picked  up  the  victim.  PW2 has  described in  detail the

events of  the evening, which culminated in the appellants Swapan

Kumar and Vicky taking the  victim  to the  house  of the  appellant

Vicky, where the appellant Rocky joined them.    

The evidence pertaining to the call records and phones and SIM

cards seized from the accused also establishes that they made several

ransom calls to the informant’s house. This is also corroborated by

the discussion about ransom overheard by the driver, and the

testimony of the parents of the victim.

As rightly observed by the Trial  Court, though the appellants

have confessed to kidnapping the victim, the confession of the

appellants is to be relied upon only to the extent of the recovery of the

deceased’s body, as per Section 27 of the Evidence Act. This strongly

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points towards their involvement in  hiding the  body and causing

disappearance of the evidence, as the body was recovered from a spot

of which only they could have had knowledge—buried deep into the

ground  in a graveyard,  hidden below layers of  soil  and wood.  The

factum of recovery  was  also substantiated  by the evidence of the

investigating officers, constables, and the authority in charge of the

graveyard where the body was found, and the electronic evidence of

the videotape of the recovery.

Although the role of the appellants in the murder of the victim

has  not  been established  based  on any direct evidence, it can be

inferred beyond doubt from the circumstances pertaining to the entire

sequence of events,  which in turn  have  been  proved through the

testimony of several witnesses, and the necessity for the accused to

kill the victim to avoid the detection of their crime. The Courts have

rightly concluded that there is an unbroken chain of circumstances

pointing unequivocally towards the guilt of the appellants, from the

point when the appellants hired the car for the offence till the point of

the recovery and due identification of the deceased’s body, with

particular reference to the testimony of the driver who saw the victim

last in thecompany of the appellants.

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10. We are also in agreement  with the  Courts on the point of

sentencing of the appellant Vicky and the appellant Rocky. Moreover,

it may be noted that there is no appeal by the state for enhancement

of sentence against the appellants Vicky and Rocky.  

The sole point on which we find ourselves in disagreement with

the Trial Court and the High Court is the sentence of death awarded

to the appellant Swapan Kumar.  

Before we proceed further, it would be useful to recall the well­

settled legal proposition first enunciated in  Bachan Singh v. State

of Punjab, (1980) 2 SCC 684, that the death penalty is to be imposed

only when the alternative of life imprisonment is totally inadequate,

and therefore unquestionably foreclosed, i.e. if it is the only inevitable

conclusion.   While determining the sentence, it is equally important

for the Court to consider the aggravating circumstances of the crime

as well as the mitigating circumstances. Since the decision in Machhi

Singh v. State of Punjab, (1983) 3 SCC 470, a balancing approach

of such aggravating and mitigating circumstances has been adopted

by the courts to see if the crime is among the rarest of rare cases.

Thus, it cannot be doubted that life imprisonment is the rule and the

death penalty is the exception.

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11.  We have considered each of the circumstances of the crime as

well as the planned crime of the appellant carefully. Though  we

acknowledge the gravity of the offence, we have been unable to satisfy

ourselves that the offence involves exceptional depravity or

heinousness.  The  offence  has  undoubtedly  been  committed in the

premeditated manner, and involved the heartless betrayal of trust of

the victim, who was a first cousin of the appellant Swapan Kumar,

but this is not a sufficient reason to bring it within the ambit of the

rarest of rare cases, especially when there is nothing to show that the

offence itself was not committed in an unspeakably brutal manner.

This is clear if we consider the entire sequence of events as

reconstructed from the testimony of the prosecution witnesses, from

which we  can  infer that the victim was  not  aware  of the  devious

designs of the appellants even up to the point of reaching the house of

the  appellant  Rocky.  Moreover, the murder  of the victim seems to

have taken place by throttling, as is indicated by the medical

evidence. Even on this point it is difficult to conclude that the murder

was committed in an exceptionally heinous  manner.  However,  we

must emphasize that we do not intend to undermine the plight that

the victim must have felt when he realized the truth, nor to

undermine the gravity of the crime itself.

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At the  same  time,  we  feel that the  Trial  Court  and  the  High

Court have not given due weight to the mitigating circumstances of

the appellant Swapan Kumar. To begin with, the crime was

committed at a young age, when it is easy for people to get swayed by

the lure  of short­cuts to earn  money. In fact,  he is still a  young

person, and there  is nothing to show that he is absolutely beyond

reform and rehabilitation. It is  worth noting at this point  that  the

Trial Court considered this to be a mitigating factor in favour of the

other accused, but held that the appellant Swapan Kumar’s role in

the entire narrative discloses that he is beyond reform.  We find

ourselves unable to agree with this view. Though it is indeed a deeply

condemnable act to destroy one’s own family for short­term pecuniary

gain, it is a dangerous presumption that a perpetrator of such an act

is incapable of reform  and rehabilitation just  by virtue of having

committed the crime, and indeed flies in the face of the concept of

reform to begin with.

Moreover, we also do not find that the appellant Swapan Kumar

poses such a menace to society that he cannot be allowed to stay

alive.

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In such circumstances, we are of the view that the above

mitigating factors outweigh the aggravating circumstances of the

crime, and the same cannot be brought into the ambit of the rarest of

rare cases. Therefore, we find it fit to commute the death sentence of

the appellant Swapan Kumar to life imprisonment.

12.  At the same time, it cannot be doubted that the conduct of the

appellant Swapan Kumar must be placed on a different footing than

the  other  appellants, given that  he  betrayed the trust of  his  own

cousin, and indeed caused agony to his own blood relations, in the

most heartless manner.  We agree with the view taken by the Courts

that the offence was committed in a premeditated manner, and that

the factum of targeting of the informant’s sons is a clear indication of

how the appellant Swapan Kumar must have spearheaded the entire

plan. As the informant was his mother’s brother, he would have had

intimate knowledge of his background and prosperity. On the other

hand, the other two accused seem to have played a secondary role

and were possibly only lured in by the appellant Swapan Kumar with

the  promise  of riches.  Thus, it is  evident that the  conduct  of the

appellant  Swapan Kumar is  more  culpable than  that  of the  other

accused. Indeed, placing all the three accused on the same footing

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would  also  be insensitive to the  plight that the victim’s family is

enduring  because of their betrayal at the  hands of the appellant

Swapan Kumar. We are also mindful of the need to curb the menace

of kidnappings for ransom, and the need to respond to such crimes

with stringent punishment.

In these circumstances, we find that a sentence of life

imprisonment  simpliciter  would be inadequate for the appellant

Swapan Kumar, as that includes the possibility of claiming remission

after the expiry of as little as 14 years. In our opinion, a mere effective

sentence of 14 years would be grossly inadequate in the case of this

appellant.

Due to the aforesaid reasons, we wish to adopt the  via media

that this Court has frequently resorted to in matters involving grave

offences, which nonetheless do not fall into the realm of the rarest of

rare cases so as to attract the punishment of death—i.e., the

restriction of the convict to claim remission  in his  sentence, for  a

specific period.

13. This Court has elucidated this proposition  in much detail in

Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC

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767, and in the decision of the Constitution Bench in Union of India

v. V. Sriharan, (2016) 7 SCC 1. It would be useful to reproduce the

conclusions reached by this Court in Sriharan case supra:

“Answers to the Questions Referred in seriatim

Question 52.1: Whether imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code meant imprisonment for rest of the life of the prisoner or a convict undergoing life imprisonment has a right to claim remission and whether as per the principles enunciated in paras 91 to 93 of Swamy Shraddananda (2) [Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767 : (2009) 3 SCC (Cri) 113] , a special category of sentence may be made  for the very  few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond application of remission?

Answer

177. Imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code only means imprisonment for the rest of the life of the convict. The right to claim remission,  commutation, reprieve, etc.  as provided under Article 72 or Article 161 of the Constitution will always be available being constitutional remedies untouchable by the Court.

178. We hold that the ratio laid down in Swamy Shraddananda (2) [Swamy Shraddananda (2) v. State of Karnataka, (2008)  13 SCC 767: (2009)  3 SCC  (Cri)  113] that a special category of sentence; instead of death can be substituted by the punishment of imprisonment for life or for a term exceeding 14 years and put that category beyond application of remission is well founded and we answer the said question in the affirmative.”

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(emphasis supplied)

We may also refer to the decision of this Court in Tattu Lodhi

v. State of M.P., (2016) 9 SCC, explaining the utility of taking such

an approach:

“11. The innovative approach reflected in the aforesaid judgments, on the one hand helps the convict in getting rid of death penalty in appropriate cases, on the other it takes care of genuine concerns of the victim including the society by ensuring that life imprisonment shall actually  mean imprisonment  for  whole of  the natural life or  to a  lesser extent as indicated by the court in the light of facts of a particular case. Since there is no party who is actually a loser on account of such an approach in appropriate cases, we feel no hesitation in accepting the submissions advanced by the appellant. Hence, the law is reiterated that in appropriate cases where this Court is hesitant in maintaining death sentence, it may order that the convict shall undergo imprisonment for whole of natural life or to a lesser extent as may be specified.”  

14. In the given circumstances, we think that it would be in the

interest of  the  justice to restrict the right of  the appellant Swapan

Kumar to claim remission in his sentence of life imprisonment for a

period of 25 years. Such a minimum mandatory sentence would be

commensurate with the gravity of the crime and with the heightened

culpability of this appellant compared to the other accused.

15.  Thus, the following order is made :

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a.  Criminal  Appeal  Nos.  1396­1397 of  2012 pertaining to the

appellant Swapan Kumar Jhaare disposed of by commuting the death

sentence to one of life imprisonment, out of which the said accused

shall serve out mandatorily a minimum of 25 years without claiming

remission.  

b. Criminal Appeal No.1435 of 2012 of the appellant Amarendra

Kumar Sharma @ Vickey,  and Criminal  Appeal  arising out  of  SLP

(Criminal) No. 7902 of 2012 of the appellant Rockey Dutta @ Rocky

Dutta stand dismissed.

…………………………………….….J. [N.V. RAMANA]

………………………………………..J. [MOHAN M. SHANTANAGOUDAR]

………………………………………..J. [M. R. SHAH]

New Delhi; November 15, 2018.