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Sunday, February 16, 2014

Whether death sentence or life imprisonment - Killing of a child and an old man for Rs.100/- at gunpoint - committed 23 crimes - Three for murder and two for attempt to murder - Trial court awarded death sentence as it is cold blooded murder - High court confirmed - Apex court converted to life imprisonment and awarded 20 years of rigorous imprisonment with out any remission of the sentence already under gone = Birju …. Appellant Versus State of M.P. …. Respondent= 2014 ( Feb. Part)judis.nic.in/supremecourt/filename=41222

Whether death sentence or life imprisonment -  Killing  of a child and an old man for Rs.100/- at gunpoint - committed 23 crimes - Three for murder and two for attempt to murder - Trial court awarded death sentence as it is cold blooded murder - High court confirmed - Apex court converted to life imprisonment  and awarded 20 years of rigorous imprisonment with out  any remission  of the sentence already under gone = 
R-R TEST=
(1)  the
     offences relating to the commission of heinous crime like murder, rape,
     armed dacoity, kidnapping etc. by the accused with a  prior  record  of
     conviction for capital felony  or  offences  committed  by  the  person
     having  a  substantial  history  of  serious  assaults   and   criminal
     conviction; and 
(2)  the offence was committed while the  offender  was
     engaged in the commission of another serious offence.   First  criteria
     may be a relevant factor while applying  the  R-R  test,  provided  the
     offences relating to heinous crimes like  murder,  rape,  dacoity  etc.
     have ended in conviction.

 whether the instant case falls within the category of rarest  in
           rare case, we visualize the following circumstances :-


              i) The offence  was  not  committed  under  the  influence  of
                 extreme mental or emotional disturbance.


             ii) Appellant is a quite matured person aged  about  45  years.
                 He is neither young nor old.


            iii) Looking to his  criminal  antecedent  i.e.  he  was  charge
                 sheeted for commission of 24 criminal cases, out of which 3
                 were under Section 302  of  “the  IPC”  and  2  were  under
                 Section  307  of  “the  IPC”,  therefore,   there   is   no
                 probability that the  accused  would  not  commit  acts  of
                 violence in future and his presence in society would  be  a
                 continuing threat to society.


             iv) There is no probability or possibility  of  reformation  or
                 rehabilitation of the appellant.


              v) In  the  facts  and  circumstances  of  the  present  case,
                 accused/appellant cannot morally justify the commission  of
                 murder of child aged one year by him.


             vi) There is no direct or indirect evidence  available  to  say
                 that accused  acted  under  the  duress  or  domination  of
                 another person.


            vii) The condition of appellant/accused was not such, which  may
                 show that he was mentally defective  and  the  said  defect
                 impaired his capacity to appreciate the criminality of  his
                 conduct.


           viii) It is purely a cold blooded murder and evidence  on  record
                 clearly showing the fact that appellant has  absolutely  no
                 regard for life and limb of others.”


     14.   One of the factors which weighed with the High  Court  to  affirm
     the  death  sentence  was  that  the  accused  was  charge-sheeted  for
     commissioning of 24 criminal cases,  out  of  which  three  were  under
     Section 302 IPC and two were under Section 307 IPC,  consequently,  the
     Court held that there was no probability that  the  accused  would  not
     commit the act of violence in  future  and  his  presence  would  be  a
     continuing threat to the society.  The Court also took  the  view  that
     there  was  no   possibility   or   probability   of   reformation   or
     rehabilitation of the accused.
=
Consequently,
     while affirming the conviction, we are not prepared to say that it is a
     rarest of rare case, warranting capital  punishment.    We,  therefore,
     set aside the death sentence awarded by the trial Court and affirmed by
     the High Court, and convert the same to imprisonment for life.
in Swami Shraddanand (2) alias  Murli
     Manohar Sharma v. State of Karnataka (2008) 13 SCC 767.  
In that  case,
     this Court took the view that there is a third  category  of  cases  in
     which Court can, while awarding the sentence for imprisonment of  life,
     fix a term  of  imprisonment  of  14  or  20  years  (with  or  without
     remission) instead of death penalty  and  can,  in  appropriate  cases,
     order that the sentences would run consecutively and not  concurrently.
     Above sentencing policy has been  adopted  by  this  Court  in  several
     cases, since then, 
the latest being Gurvail Singh v.  State  of  Punjab
     (2013) 10 SCC 631.  
We have  indicated  that  this  a  case  
where  the
     accused is involved in twenty four criminal cases, 
of which  three  are
     for the offence of murder and 
two are for attempting to commit  murder.
     In such circumstances, if the appellant is given  a  lesser  punishment
     and let free, he would be a menace to the society.


     21.    We are of the view that this is a fit case  where  20  years  of
     rigorous imprisonment, without remission, to the  appellant,  over  the
     period which he has already undergone, would be  an  adequate  sentence
     and will render substantial justice.  Ordered accordingly.


     22.    The appeals stand disposed of as above.   

2014 ( Feb. Part)judis.nic.in/supremecourt/filename=41222
K.S. RADHAKRISHNAN, VIKRAMAJIT SEN

                                                        REPORTABLE


                        IN THE SUPREME COURT OF INDIA


                       CRIMINAL APPELLATE JURISDICTION


                    CRIMINAL APPEAL NOs.1352-1353 OF 2012


     Birju                                    …. Appellant


                                   Versus


     State of M.P.                           …. Respondent




                               J U D G M E N T




     K.S. Radhakrishnan, J.




     1.     We are, in this case, concerned with the killing of a child aged
     one year who was in the arms of PW1, the grand-father,  for  which  the
     accused was awarded death  sentence  by  the  trial  court,  which  was
     affirmed by the High Court and these appeals have been preferred by the
     accused against the judgment of conviction and sentence awarded to  him
     for the offences under Section 302 of the Indian Penal Code, read  with
     Section 27 of the Arms Act, 1959.


     2.     The prosecution case, in short, is as follows:
      PW1, the complainant was standing at the grocery shop of Kamal  Bansal
     (PW2) on 13.12.2009 at about 8.15 PM for purchasing some goods.  He was
     holding his grandson, Arman, aged one year in his arms.  PW4,  Jagdish,
     was also standing in  front  of  the  said  shop.   The  accused-Birju,
     resident of the same locality, known as Rustam  Ka  Bagicha,  came  out
     there on a motorcycle.   After  parking  the  motorcycle,  he  went  to
     Babulal and questioned him as to why he was  standing  there.   Babulal
     replied that he had come  to  purchase  some  kirana.   While  so,  the
     accused-appellant demanded  Rs.100/-  for  consuming  liquor.   Babulal
     expressed his inability to give the money, on which, the accused abused
     him in the name of his mother and took out a country made  pistol  from
     his pocket and shot, which hit on the right temporal  area  of  infant-
     Arman.  Persons of the locality, which included Rakhi, daughter of  the
     complainant, her aunt-in-law Sharda Bai and few  other  inhabitants  of
     the area, reached the spot after hearing the sound.  Son-in-law of  the
     complainant, Jeevan, took Arman to the  hospital  and  PW1  immediately
     reached the police station and lodged the first information report.


     3.     PW 12, the Station House Officer, reached the spot and  prepared
     a spot map (Ext.P/2) and seized the blood stained shirt of  complainant
     Babulal vide seizure memo (Ext.P/3).  Empty cartridge,  motorcycle  and
     used bullet were seized from the  spot  vide  seizure  memo  (Ext.P/6).
     Inquest report (Ext.P/8) was prepared on the dead body, which was  then
     sent for post-mortem examination.  PW10 Dr. A.K. Langewar conducted the
     post-mortem examination.


     4.     The accused was later nabbed and from his possession pistol  was
     recovered and seized articles were sent for examination to the Forensic
     Science Laboratory, Tamil  Nadu  vide  Ext.P/18-A.   The  investigation
     officer  recorded  the  statements  of  witnesses  and  completed   the
     investigation and the accused was charge-sheeted  under  Sections  302,
     327 and 398 of the IPC and Sections 25 and 27 of the Arms Act, 1959.


     5.     The prosecution examined 12 witnesses and produced 19  documents
     and none was examined on the side of the defence.


     6.      As  already  indicated,  after  appreciating   the   oral   and
     documentary evidence, the trial court found the accused guilty and held
     that the case of the accused falls under “rarest of rare” category  and
     awarded capital punishment, which was affirmed by the High Court.   The
     accused was also convicted under Section 27 of the  Arms  Act  and  was
     sentenced to rigorous imprisonment  for  three  years  and  a  fine  of
     Rs.1000/-, which was also affirmed by the High Court.


     7.     Mr.  Rana  Ranjit  Singh,  learned  counsel  appearing  for  the
     appellant, submitted that the case on hand is not the one  which  falls
     in the category of “rarest  of  rare”  warranting  capital  punishment.
     Learned counsel pointed out that even if the entire prosecution case is
     accepted, the offence would be covered under Section 304 Part  II  IPC.
     Learned counsel also pointed out that the accused had no  intention  to
     kill either PW1 or the child.  The accused, at best, was under  extreme
     mental or emotional disturbance and there will be no occasion  for  him
     to indulge in similar offence in future, and the possibility of accused
     being reformed could not be ruled out.  Learned counsel also  submitted
     that the trial court and the High Court  have  committed  an  error  in
     awarding the death sentence on the ground that the accused was involved
     in various other criminal cases which, according to the counsel, cannot
     be an aggravating factor to be taken into consideration for the purpose
     of awarding the death sentence.


     8.     Mr. C.D. Singh, learned counsel appearing for the State, on  the
     other hand, pointed out that the prosecution has proved the case beyond
     reasonable doubt.  Learned counsel referred to the evidence of PW4  and
     PW7 and stated that they were eye-witnesses to the incident  and  there
     is no reason to discard their oral evidence.  Learned counsel submitted
     that the murder was committed in cold blooded manner  and  evidence  on
     record clearly shows that the accused has absolutely no regard for  the
     life or limb of others.  Learned counsel also submitted that  there  is
     no  probability  of  reformation  or  rehabilitation  of  the  accused.
     Learned counsel also submitted that, in the instant case,  crime  test,
     criminal test and R-R test have been fully satisfied and  there  is  no
     reason to interfere with the death sentence awarded by the trial  court
     and affirmed by the High Court.


     9.     PWs 1 to 4 and 7 fully and completely supported the case of  the
     prosecution.  PW1, the grand-father of the child, PWs 2,  3,  4  and  7
     have depicted an eye-to-eye picture of what transpired on  the  fateful
     day.   Their version is consistent and highly reliable.  Eye witnesses’
     version is fully corroborated with post-mortem and FSL  reports.   PW6,
     of course, has been declared as hostile, but the evidence of a  hostile
     witness cannot be discarded as a whole and the relevant parts  thereof,
     which are admissible in law, can be used, either by the prosecution  or
     the defence.  Reference may be made to the judgment of this Court in C.
     Muniappan and Others v. State of Tamil Nadu (2010) 9 SCC 567.  PW6,  in
     his statement under Section 164 Cr.P.C. has stated that, on the date of
     the incident, he heard PW1 shouting “goli mar di”, “goli mar di”, which
     indicates that, to that extent, the statement supports the prosecution.
        The incident, as already stated, happened in front of a grocery shop
     at about 8.15 PM on 13.12.2009 when PW1 was standing in  front  of  the
     grocery shop of PW2.  Accused, at  that  time,  reached  the  spot  and
     demanded Rs.100/-, which PW1 refused to pay and, for that sole  reason,
     he took out the pistol from his pocket and shot, which hit the temporal
     region of Arman, aged one year and he died.


     10.    Motive for committing the murder was evidently for  getting  the
     money to consume liquor for which, unfortunately, a child of  one  year
     became the casualty.  The country made pistol used for  committing  the
     offence was subsequently recovered.   PW10,  who  conducted  the  post-
     mortem on the dead body of the  child,  noticed  various  injuries  and
     reiterated that the bullet had pierced through the meningeal  membranes
     and both the lobes of the brain.  PW10 Doctor opined that the wound was
     caused by firearm and the deceased died within 24 hours of  post-mortem
     examination.  The prosecution has  successfully  proved  the  cause  of
     death and the use of the firearm by the accused  and  we  fully  concur
     with the findings of the trial court, affirmed by the High  Court  that
     offences under Section 302 IPC and Section 27 of the  Arms  Act,  1959,
     have been made out.


     11.    We are now concerned with the question whether  the  case  falls
     under the category of “rarest of rare”, warranting the death sentence.


     12.    We have held in Shankar Kisnrao Khade v.  State  of  Maharashtra
     (2013) 5 SCC 546 that even if the crime test  and  criminal  test  have
     been fully satisfied, to award the death sentence, the prosecution  has
     to satisfy the R-R Test.  We have noticed that one of the factors which
     weighed with the trial court as well as the High Court to  award  death
     sentence to the accused was his criminal antecedents.  The  High  Court
     while dealing with the criminal antecedents of the  accused  stated  as
     follows:
           “14.  The appellant is  having  criminal  antecedent,  which  is
           clear from the statement of investigating officer (PW-12)  Mohan
           Singh in paragraph 12, wherein he has deposed that the appellant
           is a notified bully in the concerned police station and as  many
           as 24 criminal cases were registered against him by the  police,
           out of which three cases of  murder  and  two  were  attempt  to
           commit  murder.   In  all  these  cases,  after   investigation,
           appellant was charge sheeted for trial before the court of  law.
           In cross-examination, this statement has been challenged by  the
           defence. In paragraph 13 only question was put to  this  witness
           that along with the charge sheet list of criminal cases were not
           filed, on which witness replied that same is  available  in  the
           case diary.  After this answer, counsel for  the  appellant  did
           not ask the Court to verify this fact and also no suggestion was
           given to this witness that appellant was not facing  prosecution
           in all the above mentioned  criminal  cases.   These  facts  are
           sufficient to hold that appellant was fully aware about the  use
           and consequence of the deadly weapon like pistol, and  when  his
           demand was not satisfied; he  used  the  same  intentionally  to
           commit murder of child, Arman.  The injuries  show  that  pistol
           was fired very accurately and bullet pierced through and through
           at the vital part of the body i.e. skull.   When  appellant  was
           using firearm for causing injury to infant  Arman,  he  must  be
           knowing the consequence that  because  of  use  of  such  deadly
           weapon, there would be no chance for survival of  a  child  aged
           one year.”




     13.    Further, the High Court also, after  referring  to  the  various
     cases, where this Court had  awarded  death  sentence,  considered  the
     present case as rarest of rare one and stated as follows:
           “26.  In the light of aforesaid legal position  for  considering
           whether the instant case falls within the category of rarest  in
           rare case, we visualize the following circumstances :-


              i) The offence  was  not  committed  under  the  influence  of
                 extreme mental or emotional disturbance.


             ii) Appellant is a quite matured person aged  about  45  years.
                 He is neither young nor old.


            iii) Looking to his  criminal  antecedent  i.e.  he  was  charge
                 sheeted for commission of 24 criminal cases, out of which 3
                 were under Section 302  of  “the  IPC”  and  2  were  under
                 Section  307  of  “the  IPC”,  therefore,   there   is   no
                 probability that the  accused  would  not  commit  acts  of
                 violence in future and his presence in society would  be  a
                 continuing threat to society.


             iv) There is no probability or possibility  of  reformation  or
                 rehabilitation of the appellant.


              v) In  the  facts  and  circumstances  of  the  present  case,
                 accused/appellant cannot morally justify the commission  of
                 murder of child aged one year by him.


             vi) There is no direct or indirect evidence  available  to  say
                 that accused  acted  under  the  duress  or  domination  of
                 another person.


            vii) The condition of appellant/accused was not such, which  may
                 show that he was mentally defective  and  the  said  defect
                 impaired his capacity to appreciate the criminality of  his
                 conduct.


           viii) It is purely a cold blooded murder and evidence  on  record
                 clearly showing the fact that appellant has  absolutely  no
                 regard for life and limb of others.”


     14.   One of the factors which weighed with the High  Court  to  affirm
     the  death  sentence  was  that  the  accused  was  charge-sheeted  for
     commissioning of 24 criminal cases,  out  of  which  three  were  under
     Section 302 IPC and two were under Section 307 IPC,  consequently,  the
     Court held that there was no probability that  the  accused  would  not
     commit the act of violence in  future  and  his  presence  would  be  a
     continuing threat to the society.  The Court also took  the  view  that
     there  was  no   possibility   or   probability   of   reformation   or
     rehabilitation of the accused.


     15.    We have in Shankar Kisanrao Khade’s case (supra) dealt with  the
     question as to whether the previous  criminal  record  of  the  accused
     would be an aggravating circumstance to be taken note of while awarding
     death sentence and held that the mere pendency of few  criminal  cases,
     as such, is not an aggravating circumstance to be taken note  of  while
     awarding death sentence, since the accused  is  not  found  guilty  and
     convicted in those cases.  In the instant case, it was stated, that the
     accused was involved in 24 criminal cases,  out  of  which  three  were
     registered against the accused for murder and two cases  of  attempting
     to commit murder and, in all  those  cases,  the  accused  was  charge-
     sheeted for trial before the court of  law.   No  materials  have  been
     produced before us to show that the accused stood convicted in  any  of
     those cases.  Accused has only been charge-sheeted and  not  convicted,
     hence, that factor is not a relevant factor to be taken note  of  while
     applying the R-R test so as to award capital punishment.  May be, in  a
     given case, the pendency of large number of criminal cases against  the
     accused person might be a factor  which  could  be  taken  note  of  in
     awarding a sentence but,  in  any  case,  not  a  relevant  factor  for
     awarding capital punishment. True, when there are more than  two  dozen
     cases, of which three relate to the offence of murder, the  usual  plea
     of false implication by the defence has to be put on the back seat, and
     may have an impact on the sentencing policy, since the presence of  the
     accused could be a continuing threat to the society and hence calls for
     longer period of incarceration.


     16.     We  also  notice,  while  laying  down  various   criteria   in
     determining the aggravating  circumstances,  two  aspects,  often  seen
     referred to in Bachan Singh v. State of Punjab (1980) 2 SCC 684, Machhi
     Singh and others  v. State of Punjab (1983)  3  SCC  470  and  Rajendra
     Pralhadrao Wasnik v. State of Maharashtra (2012) 4 SCC 37, are
(1)  the
     offences relating to the commission of heinous crime like murder, rape,
     armed dacoity, kidnapping etc. by the accused with a  prior  record  of
     conviction for capital felony  or  offences  committed  by  the  person
     having  a  substantial  history  of  serious  assaults   and   criminal
     conviction; and 
(2)  the offence was committed while the  offender  was
     engaged in the commission of another serious offence.   First  criteria
     may be a relevant factor while applying  the  R-R  test,  provided  the
     offences relating to heinous crimes like  murder,  rape,  dacoity  etc.
     have ended in conviction.


     17.    We may first examine whether  “substantial  history  of  serious
     assaults and criminal conviction” is an aggravating  circumstance  when
     the court is dealing with the offences relating to the  heinous  crimes
     like murder, rape, armed docoity etc.  Prior record of the  conviction,
     in our view, will be a relevant factor, but that conviction should have
     attained finality so as to treat it  as  aggravating  circumstance  for
     awarding death sentence.  The second  aspect  deals  with  a  situation
     where an offence was committed, while the offender was engaged  in  the
     commission of another serious offence.   This is a situation where  the
     accused is engaged in the commission of another serious  offence  which
     has not ended in conviction and attained finality.


     18.    In the instant case, the Court took the view that there  was  no
     probability that the accused would not commit criminal acts of violence
     and would constitute a continuing threat to the society and there would
     be no probability that the accused could be reformed or  rehabilitated.
     In Shankar Kisanrao  Khade’s  case  (supra),  while  dealing  with  the
     criminal test (mitigating circumstances), this Court noticed one of the
     circumstances to be considered by the trial Court, while  applying  the
     test, is with regard to the chances of the  accused  not  indulging  in
     commission of the crime again and the probability of the accused  being
     reformed and rehabilitated.   We find,  in  several  cases,  the  trial
     Court while applying the criminal test, without any material  on  hand,
     either will hold that there would be  no  possibility  of  the  accused
     indulging in commission of crime or  that  he  would  indulge  in  such
     offences in future and, therefore, it would not be possible  to  reform
     or rehabilitate him.   Courts  used  to  apply  reformative  theory  in
     certain  minor  offences  and  while  convicting  persons,  the  Courts
     sometimes release the accused on probation  in  terms  of  Section  360
     Cr.P.C. and Sections 3 and 4 of the Probation of Offenders  Act,  1958.
     Sections 13 and 14 of the Act  provide  for  appointment  of  Probation
     Officers and the nature of duties to be performed.  Courts also,  while
     exercising power under Section 4, call for a report from the  Probation
     Officer.  In our view, while awarding sentence, in  appropriate  cases,
     while hearing the accused under Section 235(2) Cr.P.C., Courts can also
     call for a report from the Probation Officer, while applying the  Crime
     Test guideline No.3, as laid down in   Shankar  Kisanrao  Khade’s  case
     (supra).  Court can then examine  whether  the  accused  is  likely  to
     indulge in commission of any crime or there is any probability  of  the
     accused being reformed and rehabilitated.


     19.    We have no doubt in our mind  that  the  accused  had  the  full
     knowledge, if he fires the shot on the temporal area, that  is  between
     the forehead and the ear, it would result in death of the child of  one
     year who was in the  arms  of  PW1.   Appellant,  of  course,  demanded
     Rs.100/- from PW1, which he refused and then he took out the pistol and
     fired at the right temporal area of the child, as  retaliation  of  not
     meeting his demand and there is nothing to show that, at  the  time  of
     the incident, he was under  the  influence  of  liquor.   Consequently,
     while affirming the conviction, we are not prepared to say that it is a
     rarest of rare case, warranting capital  punishment.    We,  therefore,
     set aside the death sentence awarded by the trial Court and affirmed by
     the High Court, and convert the same to imprisonment for life.


     20.    We are, however, of the view that this is a fit  case  where  we
     can apply the principle laid down 
in Swami Shraddanand (2) alias  Murli Manohar Sharma v. State of Karnataka (2008) 13 SCC 767.  
In that  case,
     this Court took the view that there is a third  category  of  cases  in
     which Court can, while awarding the sentence for imprisonment of  life,
     fix a term  of  imprisonment  of  14  or  20  years  (with  or  without
     remission) instead of death penalty  and  can,  in  appropriate  cases,
     order that the sentences would run consecutively and not  concurrently.
     Above sentencing policy has been  adopted  by  this  Court  in  several
     cases, since then, the latest being Gurvail Singh v.  State  of  Punjab
     (2013) 10 SCC 631.  
We have  indicated  that  this  a  case  where  the
     accused is involved in twenty four criminal cases, of which  three  are
     for the offence of murder and two are for attempting to commit  murder.
     In such circumstances, if the appellant is given  a  lesser  punishment
     and let free, he would be a menace to the society.


     21.    We are of the view that this is a fit case  where  20  years  of
     rigorous imprisonment, without remission, to the  appellant,  over  the
     period which he has already undergone, would be  an  adequate  sentence
     and will render substantial justice.  Ordered accordingly.


     22.    The appeals stand disposed of as above.








                                                              ……..……………………J.
                                        (K.S. Radhakrishnan)




                                                              ……..……………………J.
                                        (Vikramajit Sen)
     New Delhi,
     February 14, 2014.

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