BIRJU Vs STATE OF M.P.
Bench: K.S. RADHAKRISHNAN,VIKRAMAJIT SEN
Case number: Crl.A. No.-001352-001353 / 2012
Diary number: 26798 / 2010
Advocates: RANA RANJIT SINGH Vs
C. D. SINGH
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs.1352-1353 OF 2012
Birju …. Appellant
Versus
State of M.P. …. Respondent
J U D G M E N T
K.S. Radhakrishnan, J.
1. We are, in this case, concerned with the killing
of a child aged one year who was in the arms of PW1,
the grand-father, for which the accused was awarded
death sentence by the trial court, which was affirmed
by the High Court and these appeals have been
preferred by the accused against the judgment of
conviction and sentence awarded to him for the
offences under Section 302 of the Indian Penal Code,
read with Section 27 of the Arms Act, 1959.
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2. The prosecution case, in short, is as follows:
PW1, the complainant was standing at the grocery
shop of Kamal Bansal (PW2) on 13.12.2009 at about
8.15 PM for purchasing some goods. He was holding
his grandson, Arman, aged one year in his arms.
PW4, Jagdish, was also standing in front of the said
shop. The accused-Birju, resident of the same
locality, known as Rustam Ka Bagicha, came out
there on a motorcycle. After parking the motorcycle,
he went to Babulal and questioned him as to why he
was standing there. Babulal replied that he had come
to purchase some kirana. While so, the
accused-appellant demanded Rs.100/- for consuming
liquor. Babulal expressed his inability to give the
money, on which, the accused abused him in the
name of his mother and took out a country made
pistol from his pocket and shot, which hit on the right
temporal area of infant-Arman. Persons of the
locality, which included Rakhi, daughter of the
complainant, her aunt-in-law Sharda Bai and few
other inhabitants of the area, reached the spot after
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hearing the sound. Son-in-law of the complainant,
Jeevan, took Arman to the hospital and PW1
immediately reached the police station and lodged the
first information report.
3. PW 12, the Station House Officer, reached the
spot and prepared a spot map (Ext.P/2) and seized
the blood stained shirt of complainant Babulal vide
seizure memo (Ext.P/3). Empty cartridge, motorcycle
and used bullet were seized from the spot vide seizure
memo (Ext.P/6). Inquest report (Ext.P/8) was
prepared on the dead body, which was then sent for
post-mortem examination. PW10 Dr. A.K. Langewar
conducted the post-mortem examination.
4. The accused was later nabbed and from his
possession pistol was recovered and seized articles
were sent for examination to the Forensic Science
Laboratory, Tamil Nadu vide Ext.P/18-A. The
investigation officer recorded the statements of
witnesses and completed the investigation and the
accused was charge-sheeted under Sections 302, 327
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and 398 of the IPC and Sections 25 and 27 of the
Arms Act, 1959.
5. The prosecution examined 12 witnesses and
produced 19 documents and none was examined on
the side of the defence.
6. As already indicated, after appreciating the oral
and documentary evidence, the trial court found the
accused guilty and held that the case of the accused
falls under “rarest of rare” category and awarded
capital punishment, which was affirmed by the High
Court. The accused was also convicted under Section
27 of the Arms Act and was sentenced to rigorous
imprisonment for three years and a fine of Rs.1000/-,
which was also affirmed by the High Court.
7. Mr. Rana Ranjit Singh, learned counsel
appearing for the appellant, submitted that the case
on hand is not the one which falls in the category of
“rarest of rare” warranting capital punishment.
Learned counsel pointed out that even if the entire
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prosecution case is accepted, the offence would be
covered under Section 304 Part II IPC. Learned
counsel also pointed out that the accused had no
intention to kill either PW1 or the child. The accused,
at best, was under extreme mental or emotional
disturbance and there will be no occasion for him to
indulge in similar offence in future, and the possibility
of accused being reformed could not be ruled out.
Learned counsel also submitted that the trial court
and the High Court have committed an error in
awarding the death sentence on the ground that the
accused was involved in various other criminal cases
which, according to the counsel, cannot be an
aggravating factor to be taken into consideration for
the purpose of awarding the death sentence.
8. Mr. C.D. Singh, learned counsel appearing for
the State, on the other hand, pointed out that the
prosecution has proved the case beyond reasonable
doubt. Learned counsel referred to the evidence of
PW4 and PW7 and stated that they were eye-witnesses
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to the incident and there is no reason to discard their
oral evidence. Learned counsel submitted that the
murder was committed in cold blooded manner and
evidence on record clearly shows that the accused has
absolutely no regard for the life or limb of others.
Learned counsel also submitted that there is no
probability of reformation or rehabilitation of the
accused. Learned counsel also submitted that, in the
instant case, crime test, criminal test and R-R test
have been fully satisfied and there is no reason to
interfere with the death sentence awarded by the trial
court and affirmed by the High Court.
9. PWs 1 to 4 and 7 fully and completely supported
the case of the prosecution. PW1, the grand-father of
the child, PWs 2, 3, 4 and 7 have depicted an
eye-to-eye picture of what transpired on the fateful
day. Their version is consistent and highly reliable.
Eye witnesses’ version is fully corroborated with
post-mortem and FSL reports. PW6, of course, has
been declared as hostile, but the evidence of a hostile
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witness cannot be discarded as a whole and the
relevant parts thereof, which are admissible in law,
can be used, either by the prosecution or the defence.
Reference may be made to the judgment of this Court
in C. Muniappan and Others v. State of Tamil
Nadu (2010) 9 SCC 567. PW6, in his statement under
Section 164 Cr.P.C. has stated that, on the date of the
incident, he heard PW1 shouting “goli mar di”, “goli
mar di”, which indicates that, to that extent, the
statement supports the prosecution. The incident,
as already stated, happened in front of a grocery shop
at about 8.15 PM on 13.12.2009 when PW1 was
standing in front of the grocery shop of PW2.
Accused, at that time, reached the spot and
demanded Rs.100/-, which PW1 refused to pay and,
for that sole reason, he took out the pistol from his
pocket and shot, which hit the temporal region of
Arman, aged one year and he died.
10. Motive for committing the murder was evidently
for getting the money to consume liquor for which,
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unfortunately, a child of one year became the
casualty. The country made pistol used for
committing the offence was subsequently recovered.
PW10, who conducted the post-mortem on the dead
body of the child, noticed various injuries and
reiterated that the bullet had pierced through the
meningeal membranes and both the lobes of the
brain. PW10 Doctor opined that the wound was
caused by firearm and the deceased died within 24
hours of post-mortem examination. The prosecution
has successfully proved the cause of death and the
use of the firearm by the accused and we fully concur
with the findings of the trial court, affirmed by the
High Court that offences under Section 302 IPC and
Section 27 of the Arms Act, 1959, have been made
out.
11. We are now concerned with the question
whether the case falls under the category of “rarest of
rare”, warranting the death sentence.
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12. We have held in Shankar Kisnrao Khade v.
State of Maharashtra (2013) 5 SCC 546 that even if
the crime test and criminal test have been fully
satisfied, to award the death sentence, the
prosecution has to satisfy the R-R Test. We have
noticed that one of the factors which weighed with the
trial court as well as the High Court to award death
sentence to the accused was his criminal antecedents.
The High Court while dealing with the criminal
antecedents of the accused stated as follows:
“14. The appellant is having criminal antecedent, which is clear from the statement of investigating officer (PW-12) Mohan Singh in paragraph 12, wherein he has deposed that the appellant is a notified bully in the concerned police station and as many as 24 criminal cases were registered against him by the police, out of which three cases of murder and two were attempt to commit murder. In all these cases, after investigation, appellant was charge sheeted for trial before the court of law. In cross-examination, this statement has been challenged by the defence. In paragraph 13 only question was put to this witness that along with the charge sheet list of criminal cases were not filed, on which witness replied that same is available in the case diary. After this answer, counsel for the appellant did not ask the Court to verify this fact and also
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no suggestion was given to this witness that appellant was not facing prosecution in all the above mentioned criminal cases. These facts are sufficient to hold that appellant was fully aware about the use and consequence of the deadly weapon like pistol, and when his demand was not satisfied; he used the same intentionally to commit murder of child, Arman. The injuries show that pistol was fired very accurately and bullet pierced through and through at the vital part of the body i.e. skull. When appellant was using firearm for causing injury to infant Arman, he must be knowing the consequence that because of use of such deadly weapon, there would be no chance for survival of a child aged one year.”
13. Further, the High Court also, after referring to
the various cases, where this Court had awarded
death sentence, considered the present case as rarest
of rare one and stated as follows:
“26.In the light of aforesaid legal position for considering whether the instant case falls within the category of rarest in rare case, we visualize the following circumstances :-
i) The offence was not committed under the influence of extreme mental or emotional disturbance.
ii) Appellant is a quite matured person aged about 45 years. He is neither young nor old.
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iii) Looking to his criminal antecedent i.e. he was charge sheeted for commission of 24 criminal cases, out of which 3 were under Section 302 of “the IPC” and 2 were under Section 307 of “the IPC”, therefore, there is no probability that the accused would not commit acts of violence in future and his presence in society would be a continuing threat to society.
iv) There is no probability or possibility of reformation or rehabilitation of the appellant.
v) In the facts and circumstances of the present case, accused/appellant cannot morally justify the commission of murder of child aged one year by him.
vi) There is no direct or indirect evidence available to say that accused acted under the duress or domination of another person.
vii) The condition of appellant/accused was not such, which may show that he was mentally defective and the said defect impaired his capacity to appreciate the criminality of his conduct.
viii) It is purely a cold blooded murder and evidence on record clearly showing the fact that appellant has absolutely no regard for life and limb of others.”
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14. One of the factors which weighed with the High
Court to affirm the death sentence was that the
accused was charge-sheeted for commissioning of 24
criminal cases, out of which three were under Section
302 IPC and two were under Section 307 IPC,
consequently, the Court held that there was no
probability that the accused would not commit the act
of violence in future and his presence would be a
continuing threat to the society. The Court also took
the view that there was no possibility or probability of
reformation or rehabilitation of the accused.
15. We have in Shankar Kisanrao Khade’s case
(supra) dealt with the question as to whether the
previous criminal record of the accused would be an
aggravating circumstance to be taken note of while
awarding death sentence and held that the mere
pendency of few criminal cases, as such, is not an
aggravating circumstance to be taken note of while
awarding death sentence, since the accused is not
found guilty and convicted in those cases. In the
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instant case, it was stated, that the accused was
involved in 24 criminal cases, out of which three were
registered against the accused for murder and two
cases of attempting to commit murder and, in all
those cases, the accused was charge-sheeted for trial
before the court of law. No materials have been
produced before us to show that the accused stood
convicted in any of those cases. Accused has only
been charge-sheeted and not convicted, hence, that
factor is not a relevant factor to be taken note of while
applying the R-R test so as to award capital
punishment. May be, in a given case, the pendency of
large number of criminal cases against the accused
person might be a factor which could be taken note of
in awarding a sentence but, in any case, not a
relevant factor for awarding capital punishment. True,
when there are more than two dozen cases, of which
three relate to the offence of murder, the usual plea of
false implication by the defence has to be put on the
back seat, and may have an impact on the sentencing
policy, since the presence of the accused could be a
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continuing threat to the society and hence calls for
longer period of incarceration.
16. We also notice, while laying down various
criteria in determining the aggravating circumstances,
two aspects, often seen referred to in Bachan Singh
v. State of Punjab (1980) 2 SCC 684, Machhi Singh
and others v. State of Punjab (1983) 3 SCC 470
and Rajendra Pralhadrao Wasnik v. State of
Maharashtra (2012) 4 SCC 37, are (1) the offences
relating to the commission of heinous crime like
murder, rape, armed dacoity, kidnapping etc. by the
accused with a prior record of conviction for capital
felony or offences committed by the person having a
substantial history of serious assaults and criminal
conviction; and (2) the offence was committed while
the offender was engaged in the commission of
another serious offence. First criteria may be a
relevant factor while applying the R-R test, provided
the offences relating to heinous crimes like murder,
rape, dacoity etc. have ended in conviction.
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17. We may first examine whether “substantial
history of serious assaults and criminal conviction” is
an aggravating circumstance when the court is
dealing with the offences relating to the heinous
crimes like murder, rape, armed docoity etc. Prior
record of the conviction, in our view, will be a relevant
factor, but that conviction should have attained
finality so as to treat it as aggravating circumstance
for awarding death sentence. The second aspect deals
with a situation where an offence was committed,
while the offender was engaged in the commission of
another serious offence. This is a situation where the
accused is engaged in the commission of another
serious offence which has not ended in conviction and
attained finality.
18. In the instant case, the Court took the view that
there was no probability that the accused would not
commit criminal acts of violence and would constitute
a continuing threat to the society and there would be
no probability that the accused could be reformed or
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rehabilitated. In Shankar Kisanrao Khade’s case
(supra), while dealing with the criminal test
(mitigating circumstances), this Court noticed one of
the circumstances to be considered by the trial Court,
while applying the test, is with regard to the chances
of the accused not indulging in commission of the
crime again and the probability of the accused being
reformed and rehabilitated. We find, in several cases,
the trial Court while applying the criminal test,
without any material on hand, either will hold that
there would be no possibility of the accused indulging
in commission of crime or that he would indulge in
such offences in future and, therefore, it would not be
possible to reform or rehabilitate him. Courts used to
apply reformative theory in certain minor offences and
while convicting persons, the Courts sometimes
release the accused on probation in terms of Section
360 Cr.P.C. and Sections 3 and 4 of the Probation of
Offenders Act, 1958. Sections 13 and 14 of the Act
provide for appointment of Probation Officers and the
nature of duties to be performed. Courts also, while
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exercising power under Section 4, call for a report
from the Probation Officer. In our view, while
awarding sentence, in appropriate cases, while
hearing the accused under Section 235(2) Cr.P.C.,
Courts can also call for a report from the Probation
Officer, while applying the Crime Test guideline No.3,
as laid down in Shankar Kisanrao Khade’s case
(supra). Court can then examine whether the accused
is likely to indulge in commission of any crime or
there is any probability of the accused being reformed
and rehabilitated.
19. We have no doubt in our mind that the accused
had the full knowledge, if he fires the shot on the
temporal area, that is between the forehead and the
ear, it would result in death of the child of one year
who was in the arms of PW1. Appellant, of course,
demanded Rs.100/- from PW1, which he refused and
then he took out the pistol and fired at the right
temporal area of the child, as retaliation of not
meeting his demand and there is nothing to show
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that, at the time of the incident, he was under the
influence of liquor. Consequently, while affirming the
conviction, we are not prepared to say that it is a
rarest of rare case, warranting capital punishment.
We, therefore, set aside the death sentence awarded
by the trial Court and affirmed by the High Court, and
convert the same to imprisonment for life.
20. We are, however, of the view that this is a fit
case where we can apply the principle laid down in
Swami Shraddanand (2) alias Murli Manohar
Sharma v. State of Karnataka (2008) 13 SCC 767.
In that case, this Court took the view that there is a
third category of cases in which Court can, while
awarding the sentence for imprisonment of life, fix a
term of imprisonment of 14 or 20 years (with or
without remission) instead of death penalty and can,
in appropriate cases, order that the sentences would
run consecutively and not concurrently. Above
sentencing policy has been adopted by this Court in
several cases, since then, the latest being Gurvail
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Singh v. State of Punjab (2013) 10 SCC 631. We
have indicated that this a case where the accused is
involved in twenty four criminal cases, of which three
are for the offence of murder and two are for
attempting to commit murder. In such circumstances,
if the appellant is given a lesser punishment and let
free, he would be a menace to the society.
21. We are of the view that this is a fit case where
20 years of rigorous imprisonment, without remission,
to the appellant, over the period which he has already
undergone, would be an adequate sentence and will
render substantial justice. Ordered accordingly.
22. The appeals stand disposed of as above.
……..……………………J. (K.S. Radhakrishnan)
……..…………………… J.
(Vikramajit Sen) New Delhi, February 14, 2014.