REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL Nos. 84-85   OF 2019 [Arising out of SLP (Crl.) Nos. 3167-3168 of 2015]

Yogendra @ Jogendra Singh                                       ...Appellant

Versus

The State of Madhya Pradesh                            …Respondent   

J U D G M E N T  

S.A. BOBDE, J.

Leave granted.

2. These appeals are filed against the Judgment of the High  

Court of Madhya Pradesh, Gwalior Bench, dated 12.12.2014  

confirming the death sentence awarded to the appellant by the  

Sessions Court, Ambah, District Morena (M.P.) vide its judgment in  

Sessions Trial No.388/2013 dated 24.07.2014. The Appellant has  

been convicted under sections 302, 326(A) and 460 of IPC and  

awarded capital punishment of death sentence, life sentence on  

three counts and fine of Rs.25,000/-each, and ten years’ R.I. and  

fine of Rs.5000/- with default stipulations, respectively. This death  

sentence has been confirmed by the High Court on a reference  

under Section 366 of Cr.P.C.  

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The brief facts of the case are as follows: the Appellant has

been convicted for the murder of one Smt. Ruby by pouring acid on

her. The Sessions Court awarded a death sentence under Section

302 of the IPC. In the incident the grandmother of the deceased

Smt.  Chandrakala (PW 3)  and one Raju -  nephew (PW 7)  of  the

deceased  and  Janu  (PW  4)  brother  of   

the deceased were also injured. The Appellant has been convicted  

for disfiguring and injuring these people by throwing acid under   

Section 326(A) of IPC.  

3. The Sessions Court imposed a fine on the Appellant payable

to Smt. Chandrakala, Raju and Janu in the sum of Rs.10,000/- each.

The High Court has enhanced the compensation and held that Janu

was  entitled  to  be  compensated  a  sum  of  Rs.  3  lac  and  Smt.

Chandrakala and Raju who were not so disfigured were held entitled

to compensation of Rs. 1.5 lac each.

4. The deceased Ruby was married to one Mr.  Sanjay Gupta

and had two issues from the wedlock. The Appellant coveted her

and  the  husband  suspected  an  affair  between  his  wife  -  the

deceased and the Appellant and harassed her accusing her of the

same.  The  deceased  thereafter  came  to  live  with  her  maternal

uncle. The Appellant pressurized the deceased’s father (PW 8) for

summoning  her  to  Porsa  and  threatened  him  with  dire

consequences if his demand was not fulfilled.  

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On that ominous night in summer,  the deceased and her

family members went to their respective rooms and retired for the

night. The doors were kept open since it was summer. There was

light  in  the  rooms  and  the  courtyard  from  some  bulbs.  The

Appellant  snuck  into  the  room of  the deceased and warned her

“though she doesn’t want to live with him he is not going to let her

live  with  anybody  else”.  The  father  of  the  deceased,   

Dataram (PW 8) woke up on hearing this and saw the Appellant

running away after throwing acid on his daughter.  The deceased

started screaming, whereupon other family members tried to save

her, the Appellant then, threw acid on the other members of the

family, burning and injuring all of them. In the attack, the deceased

sustained  burn  injuries  to  the  extent   

of 90% all over her body while others also sustained burn injuries.  

5. At this juncture, we would like to note that though we have

examined  the  entire  record  in  detail,  we  do  not  consider  it

necessary  to  deal  with  all  the  aspects  of  the  evidence  in  this

judgment.  We  are  satisfied  that  the  Appellant  has  been  rightly

convicted for causing the death of the deceased Smt. Ruby. All the

circumstances of the case and particularly the dying declaration of

Smt.  Ruby,  unerringly  point,  to  the  Appellant  as  the  one  who

caused her death. There is no conjecture, surmise or inference in

the narration of the witnesses who saw the Appellant in the act and

were themselves the victim of his acid attack.  

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6. The evidence, which commends itself as unimpeachable, is

as  follows:  the Appellant  fled from the scene of  the  crime after

committing the crime at Porsa on 21.07.2013.   He was arrested

from Munchkund Dholapur on 11.09.2013. The Investigating Officer

has deposed that the Appellant lead to the recovery of a beer bottle

which is said to have been used for carrying the acid used in the

attack.  The  Investigating  Officer  further  deposed  that  the

fingerprints  of  the  Appellant  and  the  fingerprints  found   

on  the  beer  bottle  matched.  The  expert  reported  that  the

fingerprints   

found on the bottle and the fingerprints of the Appellant are of one

and the same person.  

7. Mansingh  Pawak  (PW 10)  was  functioning  as  a  Tehsildar/

Executive Magistrate at Porsa. He was called by the Station House

Officer, Porsa for recording the Dying Declaration of the deceased

and the injured Janu. He clearly stated that the deceased was in a

conscious  state  of  mind  while  giving  her  statement  and  also

provided  her  thumb  impression  on  the  dying  declaration.  The

deceased  in  her  dying  declaration  stated  that  the  appellant

Jogendra Singh had burnt her by pouring acid on her, she further

stated that the Appellant would harass her and abuse her on the

phone. The statement of the injured Janu was recorded as a Dying

Declaration believing that Janu might not survive. Nonetheless, the

statement is on record and has been duly proved.  

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We are satisfied that the Dying Declaration of the deceased

can be given highest probative value and offers a strong foundation

for the conviction of  the Appellant.  It  is  not necessary to decide

whether Janu’s Dying Declaration is admissible because he did not

die. Since Janu has deposed as PW 4; we find that the evidence of

Janu (PW 4), Smt. Chandrakala (PW 3) who is the grandmother of

the deceased and who also has suffered injuries is consistent and

reliable.  

All  the  three  witnesses  have  deposed  that  the  appellant

threw acid on them as well. In fact the acid disfigured the face of

Janu.  

PW 8, Dataram the father of the deceased deposed that as

soon as he came out from his  room on hearing the cries of  the

deceased he saw the appellant running away from the place. We

find that the above evidence amply justifies the conviction of the

accused beyond any reasonable doubt.  The rest of the evidence is

consistent, cogent and reliable.   

8. However,  the  question  that  remains  to  be  considered  is

whether there are special reasons as to why the appellant should

be  sentenced  to  death.  The  term  ‘special  reasons’  undoubtedly

means  reasons  that  are  one  of  a  special  kind  and  not  general

reasons.  In  the  present  case  there  is  one  factor,  which  might

warrant  the  imposition  of  the  death  sentence,  as  vehemently,

urged by the learned counsel for the State. That reason is that the

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Appellant committed this crime when he was out on bail in another  

case wherein he has been convicted for murder and his sentence

has   

been upheld.

It is undoubtedly difficult to ignore this fact but we find that

it is safer to consider the imposition of sentence based on the facts

of  this  particular  case.  Unquestionably,  if  there  is  a  pattern

discernible  across  both  the  cases  then  a  second  conviction  for

murder would warrant the imposition of a death sentence. But that

does not appear to be so in the present case. The earlier incident is

totally  unrelated to the circumstance of  this  case.  The appellant

was charged along with co-accused one Kiran Nurse for committing

the  murder  of  one  Laxminarayan  alias  Laxman  Singh  in   

the intervening night of 27.07.1994 and 28.07.1994. The present

incident  took  place  on  21.07.2013  and  the  last  one  almost  ten

years before the present incident.   

9. In the case before us, the incident is related to the appellant

being  disappointed  in  his  relation  with  the  deceased  who  he

believed  deserted  him.  The  circumstance  of  the  case  and

particularly the choice of acid do not disclose a cold-blooded plan to

murder the deceased. Like in many cases the intention seems to

have been to severely injure or disfigure the deceased; in this case

we think the intention resulted into an attack more severe than

planned  which  then  resulted  in  the  death  of   

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the deceased. It  is  possible that what was premeditated was an

injury and not death.

10. We have not  made the above observation  in  any way to

condone the acts of  the appellant but merely to hold that there

appear to be no special reasons in the present case that warrants

an  imposition  of  a  death  sentence  on  the  Appellant.  In  Bachan

Singh v. State of Punjab1 this Court held as follows: -

“209. There  are  numerous  other circumstances  justifying  the  passing  of the  lighter  sentence;  as  there  are countervailing  circumstances  of aggravation.  “We cannot  obviously  feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society.” Nonetheless,  it  cannot  be  over- emphasised that the scope and concept of mitigating factors in the area of death penalty  must  receive  a  liberal  and expansive  construction  by  the  courts  in accord  with  the  sentencing  policy  writ large  in  Section  354(3).  Judges  should never  be  bloodthirsty.  Hanging  of murderers has never been too good for them.  Facts  and  Figures,  albeit incomplete,  furnished  by  the  Union  of India, show that in the past, courts have inflicted  the  extreme  penalty  with extreme  infrequency  —  a  fact  which attests  to  the  caution  and  compassion which they have always brought to bear on  the  exercise  of  their  sentencing discretion  in  so  grave  a  matter.  It  is, therefore,  imperative  to  voice  the concern that courts,  aided by the broad illustrative  guide-lines  indicated  by  us, will  discharge the onerous function with evermore  scrupulous  care  and  humane concern,  directed  along  the  highroad  of legislative  policy  outlined  in  Section

1 (1980) 2 SCC 684

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354(3) viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases  when  the  alternative  option  is unquestionably foreclosed.”

Following  which,  this  Court  in  Machhi  Singh  v.  State  of

Punjab2 classified  instances  of  rarest  of  rare  cases  where  death

sentence can be justifiably imposed.  In para 39, this Court laid

down the following tests: -

“39. In  order  to  apply  these  guidelines inter alia the following questions may be asked and answered: (a) Is there something uncommon about the  crime  which  renders  sentence  of imprisonment  for  life  inadequate  and calls for a death sentence? (b)  Are  the  circumstances  of  the  crime such that  there  is  no alternative  but  to impose  death  sentence  even  after according  maximum  weightage  to  the mitigating circumstances which speak in favour of the offender?”

11. We find that there is no particular depravity or brutality in

the   

acts of the Appellant that warrants a classification of this case as

‘rarest of the rare’.

12. Therefore, the sentence of death imposed by the High Court

is set aside and instead the appellant shall undergo imprisonment

for life.  

2 (1983) 3 SCC 470

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13. The Appeals are accordingly allowed.  

….………………………………..J. [S.A. BOBDE]

.………………………………..J. [L. NAGESWARA RAO]

….………………………………..J. [R. SUBHASH REDDY]

NEW DELHI  JANUARY 17, 2019

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