Death sentence converted in to 30 years without remission = not a fit case where the
death sentence awarded to the appellants should be affirmed.= ends of
justice would meet if they are awarded the sentence of 30 years
without remission.
The facts and circumstances involved in the instant case do not
meet the requirement of rarest of rare cases as explained hereinabove
and we are of the considered view that it is not a fit case where the
death sentence awarded to the appellants should be affirmed.
Considering the current trend in view of the judgment of this Court in
Swamy Shraddanand (2) @ Murali Manohar Mishra v. State of Karnataka,
(2008) 13 SCC 767 which has subsequently been followed by this Court
as is evident from the judgments in State of Uttar Pradesh v. Sanjay
Kumar, (2012) 8 SCC 537; and Gurvail Singh @ Gala v. State of Punjab,
(2013) 2 SCC 713, we are of the considered opinion that ends of
justice would meet if they are awarded the sentence of 30 years
without remission.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs.1357-1358 of 2011
Madhu @ Madhuranatha & Anr. …Appellants
Versus
State of Karnataka …Respondent
With
Criminal Appeal No.109 of 2013
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. These criminal appeals have been preferred against the impugned
judgment and order dated 8.9.2010, passed by the High Court of
Karnataka at Bangalore in Criminal Appeal Nos.833, 855 and 864 of 2008
by which the High Court has affirmed the death sentence and confirmed
the judgment and orders of the learned District & Sessions Judge dated
11/17.7.2008, passed in Sessions Case No.152 of 2005 with certain
observation about the charging Sections of the Indian Penal Code 1860
(hereinafter referred to as ‘IPC’) by which and whereunder the
appellants have been convicted under Sections 364/302/201 r/w Section
34 IPC and for the offences punishable under Section 364 r/w Section
34 IPC, sentenced to undergo RI for 7 years and a fine of Rs.25,000/-
each and in default of payment of fine to undergo a further
imprisonment for a period of 18 months. They have been further
convicted under Section 201 r/w Section 34 IPC and sentenced to
undergo RI for 5 years and a fine of Rs.10,000/- each and in default
to undergo further RI for a period of 12 months. All the three
appellants have been further convicted under Section 302 r/w Section
34 IPC and awarded death penalty.
2. Facts and circumstances giving rise to these appeals are that:
A. Madhusudhan, deceased had gone from Anandpura to Sagar on being
asked by his uncle Prahlad (PW.1) to collect the outstanding dues in
respect of sale and purchase of ginger from K.B. Sreenath (PW.2) and
K.S. Kiran (PW.12). As Madhusudhan did not turn up, Prahlad (PW.1)
got worried and contacted K.B. Sreenath (PW.2) and K.S. Kiran (PW.12)
to find out the whereabouts of Madhusudhan. Both K.B. Sreenath (PW.2)
and K.S. Kiran (PW.12) informed Prahlad (PW.1) that Madhusudhan had
collected Rs.2,50,000/- and Rs.1,50,000/- respectively from them at
about 12.30 P.M. and left for Anandpura. Prahlad (PW.1) contacted
all his relatives and friends to find out the whereabouts of
Madhusudhan but all in vain.
B. K.B. Sreenath (PW.2) and K.S. Kiran (PW.12) filed a complaint
FIR No. 148/2005 (Ex.P-84) in the Police Station, Sagar against
unnamed persons suspecting that Madhusudhan had been kidnapped. In the
meanwhile there were rumors in Anandpura that the appellants had
looted the money and killed Madhusudhan as some persons i.e. Nagesh
(PW.4); Sirajuddin (PW.5); Nagendra (PW.3); and Chandrashekar (PW.6)
had come forward and informed that they had seen Madhusudhan,
deceased in the company of appellants on 8.8.2005 at 12.45 P.M.
C. In view of this, an FIR was lodged on 11.8.2005 against the
appellants and one Lakshmeesha under Section 365 r/w Section 34 IPC at
Police Station Anandpura. The Police tried to trace Madhusudhan as
well as the appellants. It came to the knowledge of the investigating
agency that the deceased was seen in the company of the appellants in
a Maruti van bearing Registration No.KA-15-3112 on which “Kadala
Muttu” had been written on the back side. Thus, the Investigating
Officer tried to search for the said vehicle and came to know that it
belonged to Jayanna @ P. Aya (A.3).
D. The location of mobile phone of Jayanna @ P. Aya (A.3) was put
on surveillance/watch and thereby he was arrested on 12.8.2005 at
Anandpura and on the same day Rafiq @ Munna (A.2) was arrested by a
separate team of police at Bangalore from the house of Felix D’Costa
(PW.10). Madhuranatha (A.1) surrendered before the police on the same
day. They made certain voluntary statements, on the basis whereof,
recoveries were made. Jayanna @ P. Aya (A.3) took the police and
others persons (recovery witnesses) to the forest area and pointed out
to a place wherefrom the dead body was exhumated. Only the trunk of
the body was found as the head had been chopped off and thrown in the
nearby Nandi river. Prahlad (PW.1), Srinivasa (PW.15), Shivananda
(PW.16), Devaraja (PW.17) and K. Keshavamurthy (PW.22) witnessed the
said recovery and identified the corpse. However, in spite of the
efforts made by the police, the head could not be recovered.
Immediately thereafter recovery of most of the looted amount had been
made from the appellants. A mobile phone belonging to Jayanna @ P.
Aya (A.3) purchased from the loot amount was also recovered. A gold
ring belonging to the deceased was given to the Investigating Officer
by Felix D’Costa (PW.10) from whose house Rafiq (A.2) had been
arrested in Bangalore.
E. After completing the investigation, chargesheet was filed
against the appellants and trial commenced.
F. In the court Nagesh (PW.4) and Chandrashekar (PW.6) corroborated
the prosecution case to the extent that they had seen the deceased in
the company of all the three appellants on 8.8.2005 at about 12.45
P.M. Pranesh (PW.11) and Sadananda (PW.13) supported the case of
extra-judicial confession as made by Madhuranatha (A.1) before
(PW.11). A.1 had also approached PW.13 for help to contact the
police and disclosed that he had committed the murder of Madhusudhan
alongwith Rafiq (A.2) and Jayanna @ P. Aya (A.3).
G. Recovery of the dead body was supported by Shivananda (PW.16)
and Devaraja (PW.17). K.B. Sreenath (PW.2) and K.S. Kiran (PW.12) had
supported the prosecution case deposing about payment of money to
Madhusudhan on 8.8.2005 at about 12.45 P.M. to the tune of
Rs.4,00,000/-. The issue of motive was proved by Prahlad (PW.1),
K.B. Sreenath (PW.2), Felix D’Costa (PW.10), Pranesh (PW.11), K.S.
Kiran (PW.12) and Sadananda (PW.13). The dead body was identified and
the evidence in respect of recovery of the dead body was given by
PWs.1 and 22. The same stood affirmed by the report of the DNA test.
The Investigating Officer Bhaskar Rai (PW.47) proved all the
recoveries and furnished the details as to how the investigation was
carried out and how the arrest of the appellants was made.
H. On the basis of the above, the Trial Court convicted and
sentenced the appellants under Sections 364, 302, 201 read with
Section 34 IPC. No conviction was made under Sections 120A or B IPC.
I. Aggrieved, the appellants preferred appeals before the High
Court which have been dismissed by the impugned judgment and order
with respect to death sentences while maintaining the other sentences
as well. However, the court made a passing observation that the charge
should have been framed under Section 364A IPC instead of Section 302
IPC.
Hence, these appeal.
3. Mr. N.D.B. Raju and Mr. Amit Kumar, learned counsel appearing
for the appellants have agitated all the issues which had been raised
on behalf of the appellants before the Trial Court as well as before
the High Court and have taken us through the evidence recorded before
the Trial Court. According to them there is nothing on record to show
that the death of the deceased was homicidal or he was even abducted
by the appellants, what to talk of causing death of deceased
Madhusudhan. In the absence of any material on record to prove that
his head was chopped off by any of the appellants, their conviction is
bad, particularly in view of the fact that there is no evidence to
show that the appellants had buried the lower portion of the corpse in
the forest and threw the head in the flowing river. More so, the High
Court had taken a view that the conviction under particular provisions
of IPC by the Trial Court was not justified, meaning thereby that the
Trial Court did not frame the charges properly. Even the money shown
to have been recovered from the appellants had been planted and not
actually recovered. Most of the witnesses examined by the prosecution
are relatives of the deceased. There are material contradictions in
the deposition of the witnesses and a large number of witnesses to
some of the recoveries have been withheld. Only the police personnel
have been made the recovery witnesses though large number of persons
had gathered and were available for being made the recovery witnesses.
The video prepared at the time of exhumation of the dead body was not
presented in the Trial Court and that Jayanna (A.3) on whose behest it
is alleged that the dead body was recovered is not shown in the
photographs taken at the time of exhumation. One of the alleged
witnesses of recovery i.e. Pranesh (PW.11) had been dis-believed by
the Trial Court and another witness i.e. Sadananda (PW.13) has been
dis-believed by the High Court. They are the witnesses of extra-
judicial confession as well. In such a fact-situation, none of the
said witnesses are trustworthy. Under no circumstance the appellants
could have been awarded the death sentence. Thus, the appeals deserve
to be allowed.
4. On the contrary, learned counsel appearing for the State had
opposed the appeals contending that the Investigating Officer was not
asked in cross-examination any of the question raised before this
Court for the first time, either in respect of the videography
prepared at the time of exhumation or about the absence of Jayanna
(A.3) in the photographs taken at that time. Law does not prohibit
making the police personnel as recovery witnesses and most of the
discrepancies raised by the appellants are of trivial nature which do
not materially affect the merit of the case. Thus, in view of the
above, the appeals are liable to be dismissed.
5. We are of the considered opinion that both the courts below have
taken into consideration the evidence and appreciated the same
meticulously. The prosecution has relied on the following
circumstances to prove its case:
I. The motive of the offence was robbery and in pursuance to
which the accused persons murdered the deceased, robbed
him, chopped off the head and buried the trunk of the body.
The head and the weapon of offence were thrown in Nandi
River.
II. PW-11 deposed about the motive and produced cash amounting
to Rs. 39000/- and a mobile phone along with its SIM
purchased from the total cash of Rs. 50000/- deposited by A-
1 with him.
III. A-1 made an extra-judicial confession before PW-13,
requesting PW-13 to save him and on his advice, surrendered
before the police.
IV. Voluntary disclosure by A-3 about the location of the dead
body and wherefrom, the dead body was exhumed.
V. PW-1 identified the trunk of the dead body from the tattoo.
The D.N.A. report confirmed the body to be that of the
deceased/son of PW-22.
VI. The Post Mortem Report and the manner in which the body was
found irrefutably point to a homicidal death.
VII. A-2 was arrested from the house of PW-10 who had produced
two worthless articles and a gold chain-MO5 before the
police left by A-2. PW-1 had identified the said gold chain
to be that of the deceased.
VIII. Recovery of Rs. 1,01,000/- from the house of A-1 and Rs.
2,02,700/- from the house of A-2 concealed in the cattle
shed which is un-explained and un-accounted.
IX. Recovery of a mobile set MO14 from A-3 identified by PW-1
as that of the deceased.
X. Last seen circumstance of the deceased being in the company
of the accused persons on 8.8.2005 around 12:30 PM as
deposed by PW-4 who is acquainted with the deceased as well
as the accused persons.
6. This Court has dealt with the case of circumstantial evidence
time and again. It has consistently been held that a conviction can
be based solely on circumstantial evidence. The prosecution's case
must stand or fall on its own legs and cannot derive any strength from
the weakness of the defence put up by the accused. However, a false
defence may be called into aid only to lend assurance to the court
where various links in the chain of circumstantial evidence are
complete in themselves. The circumstances from which the conclusion of
guilt is to be drawn should be fully established. The facts so
established should be consistent only with the hypothesis of the guilt
of the accused, that is to say, they should not be explainable or
point to any other hypothesis except that the accused is guilty. The
circumstances should be of a conclusive nature and tendency. The
evidence produced by the prosecution should be of such a nature that
it makes the conviction of the accused sustainable.
(Vide: Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC
1622; State of Uttar Pradesh v. Satish, AIR 2005 SC 1000; and
Paramjeet Singh @ Pamma v. State of Uttarakhand, AIR 2011 SC 200).
7. Both the courts below have dismissed the aforesaid circumstances
in light of the aforesaid legal propositions and reached to a
conclusion that the appellants had committed the crime. We do not see
any reason to interfere with such concurrent finding of fact.
8. It has been canvassed on behalf of the appellants that there are
discrepancies and contradictions in the depositions of witnesses like
the timings when deceased was seen last with the appellants and the
distances of places etc. do not tally. Thus, their evidence cannot be
relied upon.
9. In Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181, this
Court considered the issue of discrepancies in the depositions. It is
a settled legal proposition that while appreciating the evidence of a
witness, minor discrepancies on trivial matters which do not affect
the core of the case of the prosecution must not prompt the court to
reject the evidence in its entirety. Therefore, irrelevant details
which do not in any way corrode the credibility of a witness should be
ignored. The court has to examine whether evidence read as a whole
appears to have a ring of truth. Once that impression is formed, it is
undoubtedly necessary for the court to scrutinize the evidence, more
particularly keeping in view the deficiencies, drawbacks and
infirmities pointed out in the evidence as a whole and evaluate them
to find out whether it is against the general tenor of the evidence
given by the witnesses and whether the earlier evaluation of the
evidence is shaken, so as to render it unworthy of belief. Thus, the
court is not supposed to give undue importance to omissions,
contradictions and discrepancies which do not go to the heart of the
matter, and shake the basic version of the prosecution witness.
A similar view has been re-iterated in State of U.P. v. M.K.
Anthony, AIR 1985 SC 48; State rep. by Inspector of Police v.
Saravanan & Anr., AIR 2009 SC 152; and Vijay @ Chinee v. State of
M.P., (2010) 8 SCC 191.
10. Learned counsel for the appellants has vehemently argued that in
some of the recoveries, though a large number of people were
available, but only police personnel were made recovery witnesses.
Thus, the whole prosecution case becomes doubtful.
The term ‘witness’ means a person who is capable of providing
information by way of deposing as regards relevant facts, via an oral
statement, or a statement in writing, made or given in Court, or
otherwise.
In Pradeep Narayan Madgaonkar & Ors. v. State of Maharashtra,
AIR 1995 SC 1930, this Court dealt with the issue of the requirement
of the examination of an independent witness, and whether the evidence
of a police witness requires corroboration. The Court held that though
the same must be subject to strict scrutiny, however, the evidence of
police officials cannot be discarded merely on the ground that they
belong to the police force and are either interested in the
investigation or in the prosecution. However, as far as possible the
corroboration of their evidence on material particulars should be
sought.
(See also: Paras Ram v. State of Haryana, AIR 1993 SC 1212; Balbir
Singh v. State, (1996) 11 SCC 139; Kalpnath Rai v. State (Through
CBI), AIR 1998 SC 201; M. Prabhulal v. Assistant Director, Directorate
of Revenue Intelligence, AIR 2003 SC 4311; and Ravinderan v.
Superintendent of Customs, AIR 2007 SC 2040).
11. Thus, a witness is normally considered to be independent unless
he springs from sources which are likely to be tainted and this
usually means that the said witness has cause to bear such enmity
against the accused so as to implicate him falsely. In view of the
above, there can be no prohibition to the effect that a policeman
cannot be a witness or that his deposition cannot be relied upon if it
inspires confidence.
12. This Court in Laxmibai (dead) Thr. L.Rs. & Anr. v. Bhagwantbuva
(dead) Thr. L.Rs. & Ors., AIR 2013 SC 1204 examined a similar issue
and held:
“Furthermore, there cannot be any dispute with respect to the
settled legal proposition, that if a party wishes to raise any
doubt as regards the correctness of the statement of a witness,
the said witness must be given an opportunity to explain his
statement by drawing his attention to that part of it, which has
been objected to by the other party, as being untrue. Without
this, it is not possible to impeach his credibility. Such a law
has been advanced in view of the statutory provisions enshrined
in Section 138 of the Evidence Act, 1872, which enable the
opposite party to cross-examine a witness as regards information
tendered in evidence by him during his initial examination in
chief, and the scope of this provision stands enlarged by
Section 146 of the Evidence Act, which permits a witness to be
questioned, inter-alia, in order to test his veracity.
Thereafter, the unchallenged part of his evidence is to be
relied upon, for the reason that it is impossible for the
witness to explain or elaborate upon any doubts as regards the
same, in the absence of questions put to him with respect to the
circumstances which indicate that the version of events provided
by him, is not fit to be believed, and the witness himself, is
unworthy of credit. Thus, if a party intends to impeach a
witness, he must provide adequate opportunity to the witness in
the witness box, to give a full and proper explanation. The same
is essential to ensure fair play and fairness in dealing with
witnesses. (See: Khem Chand v. State of Himachal Pradesh, AIR
1994 SC 226; State of U.P. v. Nahar Singh (dead) & Ors., AIR
1998 SC 1328; Rajinder Pershad (Dead) by L.Rs. v. Darshana Devi
(Smt.), AIR 2001 SC 3207; and Sunil Kumar & Anr. v. State of
Rajasthan, AIR 2005 SC 1096)”.
13. It has been canvassed on behalf of the appellants that the
provisions of Sections 174 and 176(3) Cr.P.C. had not been complied
with and the body had been exhumed by the IO without the permission of
the Executive Magistrate and therefore, the investigation had not been
conducted in accordance with law. Sub-section (1) of Section 174
Cr.P.C. only puts an obligation on the part of the IO to intimate the
Executive Magistrate empowered to hold inquest but there is nothing in
law which provides that investigation cannot be carried out without
his permission in writing or in his absence. Even otherwise, the
provision stands qualified “unless otherwise directed by any rule
prescribed by the State Government, or by any general or special order
of the District or Sub-divisional Magistrate.” The object of the
inquest proceeding is merely to ascertain whether a person has died
under unnatural circumstances or an unnatural death and if so, what is
the cause of death. More so, the inquest report is not a piece of
substantive evidence and can be utilised only for contradicting the
witnesses to the inquest examined during the trial. Neither the
inquest report nor the post-mortem report can be termed as basic or
substantive evidence and thus, any discrepancy occurring therein
cannot be termed as fatal or suspicious circumstance which would
warrant benefit of doubt to the accused.
(Vide: Pooda Narayan & Ors. v. State of A.P., AIR 1975 SC 1252;
Rameshwar Dayal & Ors. v. State of U.P., AIR 1978 SC 1558; Kuldeep
Singh v. State of Punjab, AIR 1992 SC 1944; George & Ors. v. State of
Kerala & Anr., AIR 1998 SC 1376; Suresh Rai & Ors. v. State of Bihar,
AIR 2000 SC 2207; and Munshi Prasad & Ors. v. State of Bihar, AIR 2001
SC 3031).
14. So far as the provisions of Section 176 Cr.P.C. are concerned,
the said provisions are attracted when a person dies in police custody
and there is suspicion that death had been caused by the police
itself. In other eventualities also, as provided in Section 176
Cr.P.C., the Magistrate may hold the enquiry. Even if the submission
of the appellants is considered to have some substance it will not
tilt the balance in their favour. It is a settled legal proposition
that evidence collected even by improper or illegal means is
admissible if it is relevant and its genuineness stands proved.
However, the court may be cautious while scrutinizing such evidence.
In such a fact-situation, it may be considered a case of procedural
lapse on the part of the Investigating Officer and it should not be
discarded unless the appellant satisfies the court that any prejudice
has been caused to him.
(Vide: Umesh Kumar v. State of Andhra Pradesh, JT 2013 (12) SC 213;
and Pooran Mal v. Director of Inspection, Income-Tax, New Delhi &
Ors., AIR 1974 SC 348).
15. A number of witnesses have deposed of seeing the deceased in the
company of the appellants before the incident. In cases where the
accused was last seen with the deceased victim (last seen-together
theory) just before the incident, it becomes the duty of the accused
to explain the circumstances under which the death of the victim
occurred. (Vide: Nika Ram v. State of Himachal Pradesh, AIR 1972 SC
2077; and Ganeshlal v. State of Maharashtra, (1992) 3 SCC 106).
16. It is obligatory on the part of the accused while being
examined under Section 313 Cr.P.C., to furnish some explanation with
respect to the incriminating circumstances associated with him, and
the court must take note of such explanation even in a case of
circumstantial evidence, to decide whether or not the chain of
circumstances is complete. [Vide: Musheer Khan @ Badshah Khan & Anr.
v. State of Madhya Pradesh, AIR 2010 SC 762; and Dr. Sunil Clifford
Daniel (supra)].
17. The High Court regarding Sadananda (PW.13) has observed as
under:
“It may be that PW11 may appear as accomplice but
nonetheless the evidence of PW13 clinchingly establish the extra-
judicial confession of A1. The analysis of the above evidence
would clinchingly establish the guilt of A1 to A3. Therefore,
the order of conviction is sound and proper.”
Similarly, the Trial Court in respect of PW.11 observed as
under:
“Even if the extra-judicial confession said to have been
made by the first accused before PW.13 is eschewed, the
statement made before PW.11 shows that immediately after the
incident the first accused Madhuranatha who had earlier sought
the assistance of PW.11 for the same crime has met him in his
house during night and handed over Rs.50,000/- for safe custody
and also requested him not to disclose it to any one.”
If the aforesaid findings of the courts below are read together,
none of them has disbelieved either of the witnesses. Therefore, we do
not find any force in the submissions advanced by learned counsel for
the appellants that one of the said witnesses had been disbelieved by
the Trial Court and another by the High Court and thus, none of them
could be relied upon. The courts below opined that even if evidence of
one of them is eschewed, deposition of another is enough to lend
support to the prosecution case.
18. However, the facts of the case did not warrant death penalty.
The extreme penalty of death need not be inflicted except in
gravest cases of extreme culpability. Before opting for the death
penalty the circumstances of the offender are also required to be
taken into consideration along with the circumstances of the crime for
the reason that life imprisonment is the rule and death sentence is an
exception. The penalty of death sentence may be warranted only in a
case where the court comes to the conclusion that imposition of life
imprisonment is totally inadequate having regard to the relevant
circumstances of the crime. The 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 mitigating
circumstances before the option is exercised. 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. (Vide: Bachan Singh v. State of Punjab, AIR 1980 SC 898;
Machhi Singh v. State of Punjab, AIR 1983 SC 957; Devender Pal Singh
v. State of NCT of Delhi, AIR 2002 SC 1661; State of Maharashtra v.
Goraksha Ambaji Adsul, AIR 2011 SC 2689; and Neel Kumar v. State of
Haryana, (2012) 5 SCC 766).
19. In Haresh Mohandas Rajput v. State of Maharashtra, (2011) 12 SCC
56, this court held as under:
“20. ‘The rarest of the rare case’ comes when a convict would be
a menace and threat to the harmonious and peaceful coexistence
of the society. The crime may be heinous or brutal but may not
be in the category of ‘the rarest of the rare case’. There must
be no reason to believe that the accused cannot be reformed or
rehabilitated and that he is likely to continue criminal acts of
violence as would constitute a continuing threat to the society.
The accused may be a menace to the society and would continue to
be so, threatening its peaceful and harmonious coexistence. The
manner in which the crime is committed must be such that it may
result in intense and extreme indignation of the community and
shock the collective conscience of the society. Where an accused
does not act on any spur-of-the-moment provocation and indulges
himself in a deliberately planned crime and meticulously
executes it, the death sentence may be the most appropriate
punishment for such a ghastly crime. The death sentence may be
warranted where the victims are innocent children and helpless
women. Thus, in case the crime is committed in a most cruel and
inhuman manner which is an extremely brutal, grotesque,
diabolical, revolting and dastardly manner, where his act
affects the entire moral fibre of the society e.g. crime
committed for power or political ambition or indulging in
organised criminal activities, death sentence should be
awarded.”
20. The facts and circumstances involved in the instant case do not
meet the requirement of rarest of rare cases as explained hereinabove
and we are of the considered view that it is not a fit case where the
death sentence awarded to the appellants should be affirmed.
Considering the current trend in view of the judgment of this Court in
Swamy Shraddanand (2) @ Murali Manohar Mishra v. State of Karnataka,
(2008) 13 SCC 767 which has subsequently been followed by this Court
as is evident from the judgments in State of Uttar Pradesh v. Sanjay
Kumar, (2012) 8 SCC 537; and Gurvail Singh @ Gala v. State of Punjab,
(2013) 2 SCC 713, we are of the considered opinion that ends of
justice would meet if they are awarded the sentence of 30 years
without remission.
21. With the aforesaid modification, the appeals stand disposed of.
.........................………………..J.
(DR. B.S.
CHAUHAN)
.............………………………J.
(S.A. BOBDE)
New Delhi,
November 28, 2013
death sentence awarded to the appellants should be affirmed.= ends of
justice would meet if they are awarded the sentence of 30 years
without remission.
The facts and circumstances involved in the instant case do not
meet the requirement of rarest of rare cases as explained hereinabove
and we are of the considered view that it is not a fit case where the
death sentence awarded to the appellants should be affirmed.
Considering the current trend in view of the judgment of this Court in
Swamy Shraddanand (2) @ Murali Manohar Mishra v. State of Karnataka,
(2008) 13 SCC 767 which has subsequently been followed by this Court
as is evident from the judgments in State of Uttar Pradesh v. Sanjay
Kumar, (2012) 8 SCC 537; and Gurvail Singh @ Gala v. State of Punjab,
(2013) 2 SCC 713, we are of the considered opinion that ends of
justice would meet if they are awarded the sentence of 30 years
without remission.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs.1357-1358 of 2011
Madhu @ Madhuranatha & Anr. …Appellants
Versus
State of Karnataka …Respondent
With
Criminal Appeal No.109 of 2013
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. These criminal appeals have been preferred against the impugned
judgment and order dated 8.9.2010, passed by the High Court of
Karnataka at Bangalore in Criminal Appeal Nos.833, 855 and 864 of 2008
by which the High Court has affirmed the death sentence and confirmed
the judgment and orders of the learned District & Sessions Judge dated
11/17.7.2008, passed in Sessions Case No.152 of 2005 with certain
observation about the charging Sections of the Indian Penal Code 1860
(hereinafter referred to as ‘IPC’) by which and whereunder the
appellants have been convicted under Sections 364/302/201 r/w Section
34 IPC and for the offences punishable under Section 364 r/w Section
34 IPC, sentenced to undergo RI for 7 years and a fine of Rs.25,000/-
each and in default of payment of fine to undergo a further
imprisonment for a period of 18 months. They have been further
convicted under Section 201 r/w Section 34 IPC and sentenced to
undergo RI for 5 years and a fine of Rs.10,000/- each and in default
to undergo further RI for a period of 12 months. All the three
appellants have been further convicted under Section 302 r/w Section
34 IPC and awarded death penalty.
2. Facts and circumstances giving rise to these appeals are that:
A. Madhusudhan, deceased had gone from Anandpura to Sagar on being
asked by his uncle Prahlad (PW.1) to collect the outstanding dues in
respect of sale and purchase of ginger from K.B. Sreenath (PW.2) and
K.S. Kiran (PW.12). As Madhusudhan did not turn up, Prahlad (PW.1)
got worried and contacted K.B. Sreenath (PW.2) and K.S. Kiran (PW.12)
to find out the whereabouts of Madhusudhan. Both K.B. Sreenath (PW.2)
and K.S. Kiran (PW.12) informed Prahlad (PW.1) that Madhusudhan had
collected Rs.2,50,000/- and Rs.1,50,000/- respectively from them at
about 12.30 P.M. and left for Anandpura. Prahlad (PW.1) contacted
all his relatives and friends to find out the whereabouts of
Madhusudhan but all in vain.
B. K.B. Sreenath (PW.2) and K.S. Kiran (PW.12) filed a complaint
FIR No. 148/2005 (Ex.P-84) in the Police Station, Sagar against
unnamed persons suspecting that Madhusudhan had been kidnapped. In the
meanwhile there were rumors in Anandpura that the appellants had
looted the money and killed Madhusudhan as some persons i.e. Nagesh
(PW.4); Sirajuddin (PW.5); Nagendra (PW.3); and Chandrashekar (PW.6)
had come forward and informed that they had seen Madhusudhan,
deceased in the company of appellants on 8.8.2005 at 12.45 P.M.
C. In view of this, an FIR was lodged on 11.8.2005 against the
appellants and one Lakshmeesha under Section 365 r/w Section 34 IPC at
Police Station Anandpura. The Police tried to trace Madhusudhan as
well as the appellants. It came to the knowledge of the investigating
agency that the deceased was seen in the company of the appellants in
a Maruti van bearing Registration No.KA-15-3112 on which “Kadala
Muttu” had been written on the back side. Thus, the Investigating
Officer tried to search for the said vehicle and came to know that it
belonged to Jayanna @ P. Aya (A.3).
D. The location of mobile phone of Jayanna @ P. Aya (A.3) was put
on surveillance/watch and thereby he was arrested on 12.8.2005 at
Anandpura and on the same day Rafiq @ Munna (A.2) was arrested by a
separate team of police at Bangalore from the house of Felix D’Costa
(PW.10). Madhuranatha (A.1) surrendered before the police on the same
day. They made certain voluntary statements, on the basis whereof,
recoveries were made. Jayanna @ P. Aya (A.3) took the police and
others persons (recovery witnesses) to the forest area and pointed out
to a place wherefrom the dead body was exhumated. Only the trunk of
the body was found as the head had been chopped off and thrown in the
nearby Nandi river. Prahlad (PW.1), Srinivasa (PW.15), Shivananda
(PW.16), Devaraja (PW.17) and K. Keshavamurthy (PW.22) witnessed the
said recovery and identified the corpse. However, in spite of the
efforts made by the police, the head could not be recovered.
Immediately thereafter recovery of most of the looted amount had been
made from the appellants. A mobile phone belonging to Jayanna @ P.
Aya (A.3) purchased from the loot amount was also recovered. A gold
ring belonging to the deceased was given to the Investigating Officer
by Felix D’Costa (PW.10) from whose house Rafiq (A.2) had been
arrested in Bangalore.
E. After completing the investigation, chargesheet was filed
against the appellants and trial commenced.
F. In the court Nagesh (PW.4) and Chandrashekar (PW.6) corroborated
the prosecution case to the extent that they had seen the deceased in
the company of all the three appellants on 8.8.2005 at about 12.45
P.M. Pranesh (PW.11) and Sadananda (PW.13) supported the case of
extra-judicial confession as made by Madhuranatha (A.1) before
(PW.11). A.1 had also approached PW.13 for help to contact the
police and disclosed that he had committed the murder of Madhusudhan
alongwith Rafiq (A.2) and Jayanna @ P. Aya (A.3).
G. Recovery of the dead body was supported by Shivananda (PW.16)
and Devaraja (PW.17). K.B. Sreenath (PW.2) and K.S. Kiran (PW.12) had
supported the prosecution case deposing about payment of money to
Madhusudhan on 8.8.2005 at about 12.45 P.M. to the tune of
Rs.4,00,000/-. The issue of motive was proved by Prahlad (PW.1),
K.B. Sreenath (PW.2), Felix D’Costa (PW.10), Pranesh (PW.11), K.S.
Kiran (PW.12) and Sadananda (PW.13). The dead body was identified and
the evidence in respect of recovery of the dead body was given by
PWs.1 and 22. The same stood affirmed by the report of the DNA test.
The Investigating Officer Bhaskar Rai (PW.47) proved all the
recoveries and furnished the details as to how the investigation was
carried out and how the arrest of the appellants was made.
H. On the basis of the above, the Trial Court convicted and
sentenced the appellants under Sections 364, 302, 201 read with
Section 34 IPC. No conviction was made under Sections 120A or B IPC.
I. Aggrieved, the appellants preferred appeals before the High
Court which have been dismissed by the impugned judgment and order
with respect to death sentences while maintaining the other sentences
as well. However, the court made a passing observation that the charge
should have been framed under Section 364A IPC instead of Section 302
IPC.
Hence, these appeal.
3. Mr. N.D.B. Raju and Mr. Amit Kumar, learned counsel appearing
for the appellants have agitated all the issues which had been raised
on behalf of the appellants before the Trial Court as well as before
the High Court and have taken us through the evidence recorded before
the Trial Court. According to them there is nothing on record to show
that the death of the deceased was homicidal or he was even abducted
by the appellants, what to talk of causing death of deceased
Madhusudhan. In the absence of any material on record to prove that
his head was chopped off by any of the appellants, their conviction is
bad, particularly in view of the fact that there is no evidence to
show that the appellants had buried the lower portion of the corpse in
the forest and threw the head in the flowing river. More so, the High
Court had taken a view that the conviction under particular provisions
of IPC by the Trial Court was not justified, meaning thereby that the
Trial Court did not frame the charges properly. Even the money shown
to have been recovered from the appellants had been planted and not
actually recovered. Most of the witnesses examined by the prosecution
are relatives of the deceased. There are material contradictions in
the deposition of the witnesses and a large number of witnesses to
some of the recoveries have been withheld. Only the police personnel
have been made the recovery witnesses though large number of persons
had gathered and were available for being made the recovery witnesses.
The video prepared at the time of exhumation of the dead body was not
presented in the Trial Court and that Jayanna (A.3) on whose behest it
is alleged that the dead body was recovered is not shown in the
photographs taken at the time of exhumation. One of the alleged
witnesses of recovery i.e. Pranesh (PW.11) had been dis-believed by
the Trial Court and another witness i.e. Sadananda (PW.13) has been
dis-believed by the High Court. They are the witnesses of extra-
judicial confession as well. In such a fact-situation, none of the
said witnesses are trustworthy. Under no circumstance the appellants
could have been awarded the death sentence. Thus, the appeals deserve
to be allowed.
4. On the contrary, learned counsel appearing for the State had
opposed the appeals contending that the Investigating Officer was not
asked in cross-examination any of the question raised before this
Court for the first time, either in respect of the videography
prepared at the time of exhumation or about the absence of Jayanna
(A.3) in the photographs taken at that time. Law does not prohibit
making the police personnel as recovery witnesses and most of the
discrepancies raised by the appellants are of trivial nature which do
not materially affect the merit of the case. Thus, in view of the
above, the appeals are liable to be dismissed.
5. We are of the considered opinion that both the courts below have
taken into consideration the evidence and appreciated the same
meticulously. The prosecution has relied on the following
circumstances to prove its case:
I. The motive of the offence was robbery and in pursuance to
which the accused persons murdered the deceased, robbed
him, chopped off the head and buried the trunk of the body.
The head and the weapon of offence were thrown in Nandi
River.
II. PW-11 deposed about the motive and produced cash amounting
to Rs. 39000/- and a mobile phone along with its SIM
purchased from the total cash of Rs. 50000/- deposited by A-
1 with him.
III. A-1 made an extra-judicial confession before PW-13,
requesting PW-13 to save him and on his advice, surrendered
before the police.
IV. Voluntary disclosure by A-3 about the location of the dead
body and wherefrom, the dead body was exhumed.
V. PW-1 identified the trunk of the dead body from the tattoo.
The D.N.A. report confirmed the body to be that of the
deceased/son of PW-22.
VI. The Post Mortem Report and the manner in which the body was
found irrefutably point to a homicidal death.
VII. A-2 was arrested from the house of PW-10 who had produced
two worthless articles and a gold chain-MO5 before the
police left by A-2. PW-1 had identified the said gold chain
to be that of the deceased.
VIII. Recovery of Rs. 1,01,000/- from the house of A-1 and Rs.
2,02,700/- from the house of A-2 concealed in the cattle
shed which is un-explained and un-accounted.
IX. Recovery of a mobile set MO14 from A-3 identified by PW-1
as that of the deceased.
X. Last seen circumstance of the deceased being in the company
of the accused persons on 8.8.2005 around 12:30 PM as
deposed by PW-4 who is acquainted with the deceased as well
as the accused persons.
6. This Court has dealt with the case of circumstantial evidence
time and again. It has consistently been held that a conviction can
be based solely on circumstantial evidence. The prosecution's case
must stand or fall on its own legs and cannot derive any strength from
the weakness of the defence put up by the accused. However, a false
defence may be called into aid only to lend assurance to the court
where various links in the chain of circumstantial evidence are
complete in themselves. The circumstances from which the conclusion of
guilt is to be drawn should be fully established. The facts so
established should be consistent only with the hypothesis of the guilt
of the accused, that is to say, they should not be explainable or
point to any other hypothesis except that the accused is guilty. The
circumstances should be of a conclusive nature and tendency. The
evidence produced by the prosecution should be of such a nature that
it makes the conviction of the accused sustainable.
(Vide: Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC
1622; State of Uttar Pradesh v. Satish, AIR 2005 SC 1000; and
Paramjeet Singh @ Pamma v. State of Uttarakhand, AIR 2011 SC 200).
7. Both the courts below have dismissed the aforesaid circumstances
in light of the aforesaid legal propositions and reached to a
conclusion that the appellants had committed the crime. We do not see
any reason to interfere with such concurrent finding of fact.
8. It has been canvassed on behalf of the appellants that there are
discrepancies and contradictions in the depositions of witnesses like
the timings when deceased was seen last with the appellants and the
distances of places etc. do not tally. Thus, their evidence cannot be
relied upon.
9. In Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181, this
Court considered the issue of discrepancies in the depositions. It is
a settled legal proposition that while appreciating the evidence of a
witness, minor discrepancies on trivial matters which do not affect
the core of the case of the prosecution must not prompt the court to
reject the evidence in its entirety. Therefore, irrelevant details
which do not in any way corrode the credibility of a witness should be
ignored. The court has to examine whether evidence read as a whole
appears to have a ring of truth. Once that impression is formed, it is
undoubtedly necessary for the court to scrutinize the evidence, more
particularly keeping in view the deficiencies, drawbacks and
infirmities pointed out in the evidence as a whole and evaluate them
to find out whether it is against the general tenor of the evidence
given by the witnesses and whether the earlier evaluation of the
evidence is shaken, so as to render it unworthy of belief. Thus, the
court is not supposed to give undue importance to omissions,
contradictions and discrepancies which do not go to the heart of the
matter, and shake the basic version of the prosecution witness.
A similar view has been re-iterated in State of U.P. v. M.K.
Anthony, AIR 1985 SC 48; State rep. by Inspector of Police v.
Saravanan & Anr., AIR 2009 SC 152; and Vijay @ Chinee v. State of
M.P., (2010) 8 SCC 191.
10. Learned counsel for the appellants has vehemently argued that in
some of the recoveries, though a large number of people were
available, but only police personnel were made recovery witnesses.
Thus, the whole prosecution case becomes doubtful.
The term ‘witness’ means a person who is capable of providing
information by way of deposing as regards relevant facts, via an oral
statement, or a statement in writing, made or given in Court, or
otherwise.
In Pradeep Narayan Madgaonkar & Ors. v. State of Maharashtra,
AIR 1995 SC 1930, this Court dealt with the issue of the requirement
of the examination of an independent witness, and whether the evidence
of a police witness requires corroboration. The Court held that though
the same must be subject to strict scrutiny, however, the evidence of
police officials cannot be discarded merely on the ground that they
belong to the police force and are either interested in the
investigation or in the prosecution. However, as far as possible the
corroboration of their evidence on material particulars should be
sought.
(See also: Paras Ram v. State of Haryana, AIR 1993 SC 1212; Balbir
Singh v. State, (1996) 11 SCC 139; Kalpnath Rai v. State (Through
CBI), AIR 1998 SC 201; M. Prabhulal v. Assistant Director, Directorate
of Revenue Intelligence, AIR 2003 SC 4311; and Ravinderan v.
Superintendent of Customs, AIR 2007 SC 2040).
11. Thus, a witness is normally considered to be independent unless
he springs from sources which are likely to be tainted and this
usually means that the said witness has cause to bear such enmity
against the accused so as to implicate him falsely. In view of the
above, there can be no prohibition to the effect that a policeman
cannot be a witness or that his deposition cannot be relied upon if it
inspires confidence.
12. This Court in Laxmibai (dead) Thr. L.Rs. & Anr. v. Bhagwantbuva
(dead) Thr. L.Rs. & Ors., AIR 2013 SC 1204 examined a similar issue
and held:
“Furthermore, there cannot be any dispute with respect to the
settled legal proposition, that if a party wishes to raise any
doubt as regards the correctness of the statement of a witness,
the said witness must be given an opportunity to explain his
statement by drawing his attention to that part of it, which has
been objected to by the other party, as being untrue. Without
this, it is not possible to impeach his credibility. Such a law
has been advanced in view of the statutory provisions enshrined
in Section 138 of the Evidence Act, 1872, which enable the
opposite party to cross-examine a witness as regards information
tendered in evidence by him during his initial examination in
chief, and the scope of this provision stands enlarged by
Section 146 of the Evidence Act, which permits a witness to be
questioned, inter-alia, in order to test his veracity.
Thereafter, the unchallenged part of his evidence is to be
relied upon, for the reason that it is impossible for the
witness to explain or elaborate upon any doubts as regards the
same, in the absence of questions put to him with respect to the
circumstances which indicate that the version of events provided
by him, is not fit to be believed, and the witness himself, is
unworthy of credit. Thus, if a party intends to impeach a
witness, he must provide adequate opportunity to the witness in
the witness box, to give a full and proper explanation. The same
is essential to ensure fair play and fairness in dealing with
witnesses. (See: Khem Chand v. State of Himachal Pradesh, AIR
1994 SC 226; State of U.P. v. Nahar Singh (dead) & Ors., AIR
1998 SC 1328; Rajinder Pershad (Dead) by L.Rs. v. Darshana Devi
(Smt.), AIR 2001 SC 3207; and Sunil Kumar & Anr. v. State of
Rajasthan, AIR 2005 SC 1096)”.
13. It has been canvassed on behalf of the appellants that the
provisions of Sections 174 and 176(3) Cr.P.C. had not been complied
with and the body had been exhumed by the IO without the permission of
the Executive Magistrate and therefore, the investigation had not been
conducted in accordance with law. Sub-section (1) of Section 174
Cr.P.C. only puts an obligation on the part of the IO to intimate the
Executive Magistrate empowered to hold inquest but there is nothing in
law which provides that investigation cannot be carried out without
his permission in writing or in his absence. Even otherwise, the
provision stands qualified “unless otherwise directed by any rule
prescribed by the State Government, or by any general or special order
of the District or Sub-divisional Magistrate.” The object of the
inquest proceeding is merely to ascertain whether a person has died
under unnatural circumstances or an unnatural death and if so, what is
the cause of death. More so, the inquest report is not a piece of
substantive evidence and can be utilised only for contradicting the
witnesses to the inquest examined during the trial. Neither the
inquest report nor the post-mortem report can be termed as basic or
substantive evidence and thus, any discrepancy occurring therein
cannot be termed as fatal or suspicious circumstance which would
warrant benefit of doubt to the accused.
(Vide: Pooda Narayan & Ors. v. State of A.P., AIR 1975 SC 1252;
Rameshwar Dayal & Ors. v. State of U.P., AIR 1978 SC 1558; Kuldeep
Singh v. State of Punjab, AIR 1992 SC 1944; George & Ors. v. State of
Kerala & Anr., AIR 1998 SC 1376; Suresh Rai & Ors. v. State of Bihar,
AIR 2000 SC 2207; and Munshi Prasad & Ors. v. State of Bihar, AIR 2001
SC 3031).
14. So far as the provisions of Section 176 Cr.P.C. are concerned,
the said provisions are attracted when a person dies in police custody
and there is suspicion that death had been caused by the police
itself. In other eventualities also, as provided in Section 176
Cr.P.C., the Magistrate may hold the enquiry. Even if the submission
of the appellants is considered to have some substance it will not
tilt the balance in their favour. It is a settled legal proposition
that evidence collected even by improper or illegal means is
admissible if it is relevant and its genuineness stands proved.
However, the court may be cautious while scrutinizing such evidence.
In such a fact-situation, it may be considered a case of procedural
lapse on the part of the Investigating Officer and it should not be
discarded unless the appellant satisfies the court that any prejudice
has been caused to him.
(Vide: Umesh Kumar v. State of Andhra Pradesh, JT 2013 (12) SC 213;
and Pooran Mal v. Director of Inspection, Income-Tax, New Delhi &
Ors., AIR 1974 SC 348).
15. A number of witnesses have deposed of seeing the deceased in the
company of the appellants before the incident. In cases where the
accused was last seen with the deceased victim (last seen-together
theory) just before the incident, it becomes the duty of the accused
to explain the circumstances under which the death of the victim
occurred. (Vide: Nika Ram v. State of Himachal Pradesh, AIR 1972 SC
2077; and Ganeshlal v. State of Maharashtra, (1992) 3 SCC 106).
16. It is obligatory on the part of the accused while being
examined under Section 313 Cr.P.C., to furnish some explanation with
respect to the incriminating circumstances associated with him, and
the court must take note of such explanation even in a case of
circumstantial evidence, to decide whether or not the chain of
circumstances is complete. [Vide: Musheer Khan @ Badshah Khan & Anr.
v. State of Madhya Pradesh, AIR 2010 SC 762; and Dr. Sunil Clifford
Daniel (supra)].
17. The High Court regarding Sadananda (PW.13) has observed as
under:
“It may be that PW11 may appear as accomplice but
nonetheless the evidence of PW13 clinchingly establish the extra-
judicial confession of A1. The analysis of the above evidence
would clinchingly establish the guilt of A1 to A3. Therefore,
the order of conviction is sound and proper.”
Similarly, the Trial Court in respect of PW.11 observed as
under:
“Even if the extra-judicial confession said to have been
made by the first accused before PW.13 is eschewed, the
statement made before PW.11 shows that immediately after the
incident the first accused Madhuranatha who had earlier sought
the assistance of PW.11 for the same crime has met him in his
house during night and handed over Rs.50,000/- for safe custody
and also requested him not to disclose it to any one.”
If the aforesaid findings of the courts below are read together,
none of them has disbelieved either of the witnesses. Therefore, we do
not find any force in the submissions advanced by learned counsel for
the appellants that one of the said witnesses had been disbelieved by
the Trial Court and another by the High Court and thus, none of them
could be relied upon. The courts below opined that even if evidence of
one of them is eschewed, deposition of another is enough to lend
support to the prosecution case.
18. However, the facts of the case did not warrant death penalty.
The extreme penalty of death need not be inflicted except in
gravest cases of extreme culpability. Before opting for the death
penalty the circumstances of the offender are also required to be
taken into consideration along with the circumstances of the crime for
the reason that life imprisonment is the rule and death sentence is an
exception. The penalty of death sentence may be warranted only in a
case where the court comes to the conclusion that imposition of life
imprisonment is totally inadequate having regard to the relevant
circumstances of the crime. The 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 mitigating
circumstances before the option is exercised. 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. (Vide: Bachan Singh v. State of Punjab, AIR 1980 SC 898;
Machhi Singh v. State of Punjab, AIR 1983 SC 957; Devender Pal Singh
v. State of NCT of Delhi, AIR 2002 SC 1661; State of Maharashtra v.
Goraksha Ambaji Adsul, AIR 2011 SC 2689; and Neel Kumar v. State of
Haryana, (2012) 5 SCC 766).
19. In Haresh Mohandas Rajput v. State of Maharashtra, (2011) 12 SCC
56, this court held as under:
“20. ‘The rarest of the rare case’ comes when a convict would be
a menace and threat to the harmonious and peaceful coexistence
of the society. The crime may be heinous or brutal but may not
be in the category of ‘the rarest of the rare case’. There must
be no reason to believe that the accused cannot be reformed or
rehabilitated and that he is likely to continue criminal acts of
violence as would constitute a continuing threat to the society.
The accused may be a menace to the society and would continue to
be so, threatening its peaceful and harmonious coexistence. The
manner in which the crime is committed must be such that it may
result in intense and extreme indignation of the community and
shock the collective conscience of the society. Where an accused
does not act on any spur-of-the-moment provocation and indulges
himself in a deliberately planned crime and meticulously
executes it, the death sentence may be the most appropriate
punishment for such a ghastly crime. The death sentence may be
warranted where the victims are innocent children and helpless
women. Thus, in case the crime is committed in a most cruel and
inhuman manner which is an extremely brutal, grotesque,
diabolical, revolting and dastardly manner, where his act
affects the entire moral fibre of the society e.g. crime
committed for power or political ambition or indulging in
organised criminal activities, death sentence should be
awarded.”
20. The facts and circumstances involved in the instant case do not
meet the requirement of rarest of rare cases as explained hereinabove
and we are of the considered view that it is not a fit case where the
death sentence awarded to the appellants should be affirmed.
Considering the current trend in view of the judgment of this Court in
Swamy Shraddanand (2) @ Murali Manohar Mishra v. State of Karnataka,
(2008) 13 SCC 767 which has subsequently been followed by this Court
as is evident from the judgments in State of Uttar Pradesh v. Sanjay
Kumar, (2012) 8 SCC 537; and Gurvail Singh @ Gala v. State of Punjab,
(2013) 2 SCC 713, we are of the considered opinion that ends of
justice would meet if they are awarded the sentence of 30 years
without remission.
21. With the aforesaid modification, the appeals stand disposed of.
.........................………………..J.
(DR. B.S.
CHAUHAN)
.............………………………J.
(S.A. BOBDE)
New Delhi,
November 28, 2013
