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.
(C) Abrasion in the thigh 1” x 0.5” and 1” x 1”.
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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:-
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“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
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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.
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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
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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
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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.
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(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.
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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.
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