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Saturday, July 12, 2014

Death commuted to Life Imprisonment - Murder of wife and children - Trial court imposed death penalty - High court confirmed the same - Apex court held that In the present case taking into the facts and circumstances of the case in hand and reasons stated above, we hold that the imposition of death sentence to the accused Amar Singh Yadav was not warranted. Accordingly we commute the sentence to life imprisonment. Further, we hold that the accused Amar Singh Yadav must serve a minimum of 30 years in jail without remissions before consideration of his case for premature release.= AMAR SINGH YADAV … APPELLANTS VERSUS STATE OF U.P. … RESPONDENTS = 2014 – July. Part -http://judis.nic.in/supremecourt/filename=41713

 Death commuted to Life Imprisonment - Murder of wife and children - Trial court imposed death penalty - High court confirmed the same - Apex court held that In the present case taking into the facts  and  circumstances  of  the
case in hand and reasons stated above, we hold that the imposition of  death
sentence to the accused Amar Singh Yadav was not warranted.  Accordingly  we
commute the sentence  to  life  imprisonment.  Further,  we  hold  that  the
accused Amar Singh Yadav must serve a minimum of 30 years  in  jail  without
remissions before consideration of his case for premature release.=

the High Court  dismissed  the  appeal  and  confirmed  the
conviction and sentence for the offence punishable under  Section  302,  307
and 436 IPC and thereby answered  the  Reference  in  confirming  the  death
sentence.=
Amar Singh had developed illicit relationship  with
two other women, namely, Shashi of Kanpur and  Rani  of  Bharthana,  causing
differences in the family. Urmila got effected deduction of half  salary  of
the accused from the Department directly to pull  on  the  expenses  of  the
family. On account of such deductions of salary  and  illicit  relationship,
the accused became determined to cause the death of  his  wife,  Urmila  and
all four children. =
  In Swamy Shraddananda vs. State of Karnataka, (2008) 13 SCC 767,  even
while setting  aside  the  sentence  of  death  penalty  and  awarding  life
imprisonment in order to serve the ends of justice, the Court  ordered  that
the appellant should not be released from the prison till  the  end  of  his
life. Likewise, in Ramraj v. State of Chhattisgarh, (2010) 1 SCC  573,  this
Court, while setting aside the death sentence, directed that  the  appellant
therein should serve a minimum period of 20 years including  the  remissions
and would not be released on completion of 14 years of imprisonment.

29.   In Sandeep’s (supra) taking into  note  the  aforesaid  decisions  and
facts and circumstances of the case,  this  Court  while  holding  that  the
imposition of death sentence to the accused Sandeep was  not  warranted  and
while awarding life imprisonment, the Court held that  the  accused  Sandeep
must serve  a  minimum  of  30  years  in  jail  without  remissions  before
consideration of his case for premature release.

30.   In the present case taking into the facts  and  circumstances  of  the
case in hand and reasons stated above, we hold that the imposition of  death
sentence to the accused Amar Singh Yadav was not warranted.  Accordingly  we
commute the sentence  to  life  imprisonment.  Further,  we  hold  that  the
accused Amar Singh Yadav must serve a minimum of 30 years  in  jail  without
remissions before consideration of his case for premature release.  Criminal
Appeals and Reference thus stand disposed of, modifying the sentence of  the
accused Amar Singh Yadav as one of the life and he should  undergo  sentence
for a fixed period of 30 years without any remissions.

31.    The  criminal  appeals  stand  disposed   of   with   the   aforesaid
observations.
  

2014 – July. Part -http://judis.nic.in/supremecourt/filename=41713



                                                            REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                     CRIMINAL APPEAL NOS.967-968 OF 2010

AMAR SINGH YADAV                                          … APPELLANTS

                                   VERSUS


STATE OF U.P.                                           … RESPONDENTS


                               J U D G M E N T


SUDHANSU JYOTI MUKHOPADHAYA,J

      These appeals are directed against  the  common  judgment  dated  16th
February, 2010 passed by the  High  Court  of  Judicature  at  Allahabad  in
Criminal Appeal No.1942 of 2009 and Reference No.5 of 2009. By the  impugned
common judgment, the High Court  dismissed  the  appeal  and  confirmed  the
conviction and sentence for the offence punishable under  Section  302,  307
and 436 IPC and thereby answered  the  Reference  in  confirming  the  death
sentence.
2.    The case of the prosecution in short is that Urmila Devi  was  married
to accused Amar Singh Yadav, who was posted as Constable  in  Police  Chowki
Gurdev Palace, Kanpur. Three daughters, Mamta, aged 24 years; Pooja aged  22
years; and Sudha 18 years and one son, Pankaj  Yadav,  aged  13  years  were
born from their wedlock. Amar Singh had developed illicit relationship  with
two other women, namely, Shashi of Kanpur and  Rani  of  Bharthana,  causing
differences in the family. Urmila got effected deduction of half  salary  of
the accused from the Department directly to pull  on  the  expenses  of  the
family. On account of such deductions of salary  and  illicit  relationship,
the accused became determined to cause the death of  his  wife,  Urmila  and
all four children.  Pursuant  to  that  determination,  accused  along  with
companion driving the Maruti Van No.UP 78 C 8262 came  to  his  wife  Urmila
and he had taken away his wife and  four  children  in  Maruti  Van  on  the
pretention of doing shopping for the  marriage  of  one  of  the  daughters.
Further case of the prosecution is that when the sun had set,  at  the  time
of return  the  accused  got  Maruti  Van  stopped  25-30  metres  ahead  of
Udharanpur bridge on Jahanganj road and he along with the  driver  came  out
of the Van. They sprinkled the petrol all around the Van after  locking  the
doors thereof. The accused along with companion  then  set  the  Maruti  Van
ablaze, with intention of burning all occupants of the Maruti Van to  death.
Thereafter, the accused and the driver tried to push  the  vehicle  down  in
the pit so that the occupants might  not  escape  but  meanwhile  Inspector,
Police Station Chhibramau along  his  companion  Police  Constables  luckily
arrived there and he without caring of his life broke open the doors of  the
burning vehicle and took out accused’s wife and all four children  from  the
burning car. He immediately removed them to the Hospital for treatment.  The
complainant having received  the  information,  rushed  to  Lohia  Hospital,
Farrukhabad where sister of the complainant i.e. Urmila  and  four  children
briefed the entire incident to him.
3.    Dhruv Narain, Constable Police No.286 (PW-14),  registered  the  First
Information Report at 1.30 a.m. being Crime No.310/2005 under  Section  436,
307 IPC. He received direction from Inspector Uma Shankar Yadav on R.T.  Set
to depute the additional force. On this, Sub-Inspector Pramod Kumar  Katiyar
along with other Constables proceeded to the spot. The  next  day  at  about
7.20 a.m.,  Sub-Inspector  Pramod  Kumar  Katiyar  returned  to  the  Police
Station; vide General Diary it is reported that  he  got  admitted  all  the
injured of the incident in Ram Manohar Lohia Hospital on  the  direction  of
Inspector, Uma Shankar Yadav.
4.    After registration of the case, its  investigation  was  entrusted  to
Pramod Kumar Katiyar, Sub-Inspector (PW-13), He proceeded to  the  spot  and
prepared  site  plan  Ext.Ka-20.  He  then  proceeded  to  Lohia   Hospital,
Farrukhabad and recorded the statement of  Urmila  Devi,  Ext.Ka-18;  Mamta,
Ext.Ka-15; Pooja, Ext.Ka-17; Sudha, Ext.Ka-16 and Pankaj  Singh,  Ext.Ka-19.
Out of injured persons Urmila Devi, Mamta and Pooja died. The  case  of  the
accused was forwarded for trial under Section 307/302/436 IPC.
5.    In support of prosecution case, as many as 15 witnesses were  examined
by the prosecution, out of them  Sudha(PW-5)   and  Pankaj  Singh(PW-6)  are
injured witnesses. In  the  defence  statement  under  Section  313  Cr.P.C.
accused  denied  the  allegation.  Total   17   exhibits   including   dying
declarations of Urmila Devi, Ext.Ka-18; Mamta, Ext.Ka-15;  Pooja,  Ext.Ka-17
were produced.
6.    On appreciation of the oral and documentary evidence and  hearing  the
parties, the Sessions Judge, Kanpur held the  appellant-accused  guilty  for
the offences under Section 302, 307 and 436 IPC. The accused  was  convicted
and sentenced to rigorous imprisonment for life  on  count  of  Section  307
IPC. He was further convicted and sentenced  to  rigorous  imprisonment  for
seven years on count of Section 436 IPC. The accused was  further  convicted
and sentenced to death and Rs.10,000/- fine on count of Section 302 IPC  and
it was directed that he  shall  be  hanged  by  the  neck  till  death.  All
sentences shall run concurrently. The High Court by  the  impugned  judgment
dated 16th February, 2010 upheld the conviction and death  sentence  of  the
accused. The Reference was answered accordingly.
7.    Learned  counsel  for  the  appellant  while  assailing  the  impugned
judgment submitted as follows:
           (i)   Deduction of 50% salary of the appellant for paying to his
           wife by the Department cannot be a motive  to  ruin  the  entire
           family.


           (ii)  Due to extra marital relationship with two other women the
           appellant has been implicated.


           (iii)If at all there was any motive to kill his wife  but  there
           was no reason to ruin the life of two  daughters  specially  the
           elder daughter who was going to be married and for that  purpose
           articles were purchased.


           (iv)  The person who informed PW-4 that the vehicle was  set  on
           fire was not produced by the prosecution.


           (v)   Dying declaration cannot be relied because the Doctor  who
           examined, who gave the certificate of fitness was not  examined.
           Statements of PW-5 and PW-6 injured witnesses are  contradictory
           to the dying declaration.


           (vi)  That no one  has  deposed  that  they  saw  the  appellant
           spreading the petrol. Hence, there is doubtful  of  identity  of
           such person.


           (vii) The driver of the van was not arrested  and  examined  nor
           the two women who had an extra marital affair with the appellant
           were examined.


           (viii) The alleged incident does not fall within the category of
           “rarest of the rare case”, and,  therefore,  death  penalty  was
           uncalled for. This is not a fit case to impose a death penalty.


8.    Complainant, Satendra Singh (PW-1), brother  of  the  deceased-Urmila,
has proved the contents of the  FIR.  He  is  not  the  eye-witness  of  the
incident in question. He deposed that on 29th April, 2005, he  received  the
information from the Police Station at 9 p.m.   that  his  sister  and  four
children were put to fire while confined in the Maruti Van.  He  arrived  at
Lohia Hospital at 11 a.m. and found all the persons in burn  condition.  His
sister recognised him and briefed the entire incident. He reported the  same
to the Police. The accused-Amar Singh  Yadav  and  driver  straightaway  ran
awayfrom the scene. The Police had taken them out of  the  burn  Maruti  Van
after breaking open the door.
9.    This witness has told the motive of Amar Singh to cause  the  incident
that his sister obtained the order of half of salary of Amar  Singh  payable
to him by the order of the Superintendent of  Police,  Kanpur  because  Amar
Singh was maintaining the illicit affairs with two women.  The  marriage  of
Mamta was settled on 11th May, 2005 and on pretend of purchase for  marriage
of Mamta accused Amar Singh had taken his wife and all the children  to  the
market.
10.   Uma Shankar Yadav, Inspector (PW-4), has testified in the  Court  that
on 29th April, 2005 at about 8.30 p.m. when he  was  in  search  the  wanted
accused, he noticed a Maruti Van being  blown  near  Udharanpur  bridge.  He
immediately arrived there. Two persons standing there who  immediately  fled
away from the scene. He and accompanying Home  Guard,  tried  to  extinguish
the fire by throwing sand on fire and as soon as the fire receded, he  broke
open the window panes and had taken  all  the  five  occupants  out  of  the
Maruti Van. This witness further informed that all the injured were  removed
to Primary Health Centre, Chhibramau for treatment by him. Urmila  then  had
briefed  the  matter  to  him  about   the   accused   maintaining   illicit
relationship with two women and she  also  told  that  in  what  manner  the
accused had pretended to take them away  to  the  market  and  blew  up  the
Maruti Van.
11.   Sudha (PW-5), aged 18 years deposed on oath that on  the  day  of  the
incident, i.e., 29th April, 2005, her father (accused) had taken her  mother
Urmila, elder sister Mamta, younger  sister  Pooja  and  brother  Pankaj  in
Maruti Van to Chhibramau for purchasing material for the marriage of  sister
Mamta. No purchase was made from Chhibramau. They started returning  to  the
house; at about 6.30 p.m. The vehicle was being driven at very  slow  speed.
Her father stopped the vehicle at Chhibramau bus stand where  he  passed  on
time for one hour. In between 7.15 p.m. to 7.30  p.m.  all  of  them  driven
towards the village, the Maruti Van was caused to be stopped where  a  board
containing the information, ”stop  there  is  a  school  here”.  The  driver
stopped the vehicle saying that “the car has become hot”.  Her  father  then
told that, “Let him bring the wet cloth so that the  engine  may  be  cooled
down”. The Van was again made to drive and ultimately her father and  driver
had come out of the Van after locking the windows. Her  father  had  already
sprinkled the petrol in the Van. He torched the Van  at  once  and  the  Van
started burning. Meanwhile, the Police had arrived  there  to  their  rescue
and they were taken out of the vehicle by the  Police  after  breaking  open
the window. She also proved the fact of her father having  maintained  extra
marital relationship with two other women  due  to  which,  her  mother  got
deduction of half salary from the salary of her father.
12.   Likewise, Pankaj  (PW-6)  corroborated  the  statement  of  Sudha.  He
stated that on 29th April, 2005 his father Amar Singh and  the  driver  took
all of them to Chhibramau to purchase materials.   At  the  time  of  return
near the river Kali, the car was stopped then petrol was poured on them  and
set on fire. They tried to come out but their father  and  the  driver  just
watched the fire. He further stated his father was  working  in  Police  and
posted at Kalyanpur in Kanpur. He stated that his father and driver set  all
of them on fire.
13.   Anil Kumar Katiyar  (PW-12),  Nayab  Tehsildar,  having  received  the
instruction from the District Magistrate, recorded the dying declaration  of
injured Sudha, Pooja, Mamta, Urmila and Pankaj,  out  of  whom,  Urmila  and
Pooja died. Mamta, whose dying declaration was  recorded  by  Sub-Divisional
Magistrate(PW-10) also died. The  dying  declaration  of  Urmila,  which  is
Ext.Ka-18, is reproduced in English version as under:
                 “My husband-Amar Singh  is  in  Police  department  and  is
           posted at Police Station-Kalyanpur in  Kanpur.  My  husband  has
           soleminsed two marriages after me. My children and I had started
           getting half of his salaries and by which  allowance  (we  were)
           maintaining. Due to all these reasons, my husband was angry with
           me and the children. But yesterday on 29.04.2005 by saying  that
           articles were to be purchased for the marriage of daughter,  all
           of us were taken to Chhibramau. Deliberately (we were) taken  to
           Chhibramau and despite of our repeated requests delay was caused
           and (we) left late. While coming back the driver and my husband-
           Amar Singh stopped the car near the  bridge  of  river  Kali  by
           saying that the car had become hot. After that oil was sprinkled
           on all of us and set on fire. When we tried to  leave  the  car,
           then again we were pushed into the car. They kept on watching at
           us in flames from outside. I do not know the name of the driver,
           my husband set me and my children on fire and the  driver  fully
           co-operated in it.”

14.   The dying declaration of the deceased-Pooja made to  PW-12,  which  is
Ext.Ka-17, in English version is as under:
                 “Yesterday on 29.04.05 my father-Amar singh and the  driver
           took me, my mother and both the sisters and brother with them to
           Chhibramau by Maruti by saying this that  articles  were  to  be
           purchased for the marriage of ‘Didi’ (elder sister) and  clothes
           etc. were to  be  got  purchased  for  us.  Some  articles  were
           purchased for ‘Didi’ at Chhibramau and  much  delay  was  caused
           there. Left Chhibramanu in the evening and stopped the car  near
           the river Kali while saying that the car had become hot and  was
           to be cooled down. By stopping the Maruti, father-Amar Singh and
           the driver put oil upon us and set us  on  fire  and  when  (we)
           tried to come out of the car, then again we were pushed into the
           car. Do not know the name of the driver who was with the father.
           Mother had started getting half amount of the salary  of  father
           and due to this reason father was angry from all of  us.  Father
           and the driver after setting us on fire ran away. After sometime
           the Police got us admitted here.”


15.   The verbatim reproduction of dying declaration of deceased-Mamta  made
to City Magistrate (PW-10), Raj Pal singh, which is Ext.Ka-15, is as under:
           “I, Mamta daughter of Amar Singh,  resident  of  Vida,  village-
           Mohammadabad, Farrukkhabad, age  about  20  years,  am  in  full
           senses and state of mind, my father-Amar Singh  along  with  the
           driver was  taking  me,  mother-Urmila,  Shobha  and  Pankaj  to
           Chhibramau as articles(relating  to)  my  marriage  were  to  be
           purchased from there. At  about  7.30  p.m.  on  29.04.05  while
           coming back from Chhibramau I, my mother-Urmila, Shobha,  Pankaj
           and Pooja were closed in Maruti Van near the river Kali,  before
           closing the car father said that car had become hot  up  and  on
           the pretext of sprinkling water, sprinkled the petrol inside the
           car and set on fire. The door was closed from outside, my father
           set on fire, the driver was helping him. My father was  desiring
           to kill me and as well as to all those who were closed inside by
           setting on fire. My father had soleminsed  second  marriage.  My
           mother had got made his salary half and since then  he  used  to
           quarrel.”

16.   In the initial stage dying declarations of Sudha and Pankaj were  also
recorded by Nayab Tahseeldar (PW-12), but as both of them survived so  their
statements were only treated as exhibits. The statement of Sudha,  which  is
Ext.Ka-16, is as under:
            “Yesterday on 29.04.05 in the evening at about  7.00  hours,  my
            father and the driver closed my mother, me and  my  two  sisters
            and my brother in the car and set on fire.  Before  closing  the
            car firstly the oil was poured on us. Father took all of  us  on
            the pretext of purchasing goods for the marriage of sister-Mamta
            and clothes etc. for all of us, from Chhibramau.  In  chhibramau
            only some cream and powder etc. were purchased for sister. After
            that left Chhibramau very late.  At  the  time  of  coming  back
            stopped the car near the bridge that the car had become hot  and
            it was to be cooled down and suddenly set us on  fire.  When  we
            started burning at that time  father  and  the  driver  kept  on
            looking at us from outside and when sister tried to  go  out  of
            the car, then father once again pushed me  inside  the  car.  My
            father is in Police department. He is  posted  at  Kalyanpur  in
            Kanpur. I was set on fire by my father and the driver. All of us
            have been set on fire by these people only.”

17.   The statement of Pankaj Singh, which is Ext.Ka-19,  is  reproduced  as
under:
            “Yesterday on 29.04.05 my father-Amar Singh and the driver  took
            me and my three sisters and mother in Maruti to  Chhibramau  for
            purchasing. While coming back, the  car  was  stopped  near  the
            river Kali, oil was poured on us and set on fire.  We  tried  to
            come out, then again (we were) pushed inside the car. My  father
            and driver kept on watching us while  standing  outside  and  we
            kept on crying and screaming, but that did not put any effect on
            them. My father  is  in  Police  department  and  is  posted  at
            Kalyanpur in Kanpur. Father and the driver  set  all  of  us  on
            fire.”

18.   The facts brought out in the dying declarations of Urmila,  Ext.Ka-18;
Pooja, Ext.Ka-17 and Mamta,Ka-15 has corroborated the statements of  injured
eye-witnesses, Sudha (PW-5) and Pankaj Singh (PW-6).There is no room but  to
suggest that the accused caused  the  death  of  the  deceased.   The  dying
declarations  clearly  implicate  the  accused.  There  are  no   suspicious
features  which  affect  the   credibility   of   the   dying   declarations
particularly the  deceased  being  related  to  the  accused.  There  is  no
apparent reason as to why the deceased Urmila(wife), Mamta(daughter),  Pooja
(daughter) were connecting their husband/father with  the  murderer  attack.
Mere fact that Doctor in whose presence the dying declaration  was  recorded
and/or who endorsed it, is not examined, does  not  affect  the  evidentiary
value  of  the  dying  declaration.  The  evidence  of  Uma  Shankar  Yadav,
Inspector (PW-4) is also  corroborated  by  the  evidence  of  eye-witnesses
Sudha (PW-5) and Pankaj (PW-6). There is no discrepancy  in  the  statements
of the eye-witnesses to disbelieve them. The Trial Court  rightly  convicted
the appellant for the  offence  under  Section  302,  307  and  436  IPC  as
affirmed by the High Court.
19.   The next question  is  whether  the  death  sentence  awarded  to  the
appellant is excessive, disproportionate on the facts and  circumstances  of
the case, i.e. whether the present case can be termed to  be  a  “rarest  of
the rare case".

20. The Guidelines emerged from Bachan Singh vs. State of Punjab,  1980  (2)
SCC 684 were followed in Machhi Singh and others vs. State of  Punjab,  1983
(3) SCC 470. In the said case the Court observed:
              “38. In this background the guidelines  indicated  in  Bachan
           Singh case, 1980 (2) SCC 684 will have  to  be  culled  out  and
           applied to the facts of each individual case where the  question
           of imposing of death sentence arises. The following propositions
           emerge from Bachan Singh case(supra):
              “(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 require to be taken into consideration along
           with the circumstances of the ‘crime’.
              (iii) Life imprisonment is the rule and death sentence is  an
           exception. In other words 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 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.


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


              40. If  upon  taking  an  overall  global  view  of  all  the
           circumstances in the light  of  the  aforesaid  proposition  and
           taking  into  account  the  answers  to  the   questions   posed
           hereinabove, the circumstances of the case are such  that  death
           sentence is warranted, the court would proceed to do so.”


21.    In  Ronny  alias  Ronald  James  Alwaris  and  others  vs.  State  of
Maharashtra, 1998 (3) SCC  625,  this  Court  noted  the  law  laid-down  in
Allauddin Mian & Ors. Vs. State of Bihar, (1989) 3 SCC 5,  that  unless  the
nature of the crime and circumstances of the offender reveal  that  criminal
is a menace to the society and the sentence of life  imprisonment  would  be
altogether inadequate, the Court should ordinarily pass a lesser  punishment
and not punishment of death which should be reserved for  exceptional  cases
only. Considering the  cumulative  effect  of  all  the  factors,  like  the
offences committed under  the  influence  of  extreme  mental  or  emotional
disturbance, the young age of the accused, the  possibility  of  reform  and
rehabilitation,  etc.  the  Court  may  convert  the  sentence   into   life
imprisonment.

22.   This Court noticed the aggravating  and  mitigating  circumstances  in
Ramnaresh and others vs. State of Chattisgarh, 2012 (4) SCC  257,  and  held
as follows:

              “76.  The  law  enunciated  by  this  Court  in  its   recent
           judgments,  as  already  noticed,  adds   and   elaborates   the
           principles that were stated in Bachan Singh,(1980)  2  SCC  684,
           and thereafter, in Machhi Singh,(1983) 3 SCC 470. 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 appropriate
           for the court to come to a final conclusion upon  [pic]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) CrPC.


           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.
              (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 CrPC.
              (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
           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.
           [pic]
              (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.
              (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 behaviour 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 behaviour 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  preordained
           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 eyewitness though the prosecution has brought home the
           guilt of the accused.



      While determining the questions relating  to  sentencing  policy,  the
Court laid down the Principles at paragraph 77 which reads as follows:
              “77. While determining the questions relatable 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 and the circumstances leading to  commission  of  such
           heinous crime.”



23.   In Shankar Kisanrao Khade vs. State of Maharashtra, 2013 (5) SCC  546,
dealing with a case of death sentence, this Court observed:

              “52. Aggravating  circumstances  as  pointed  out  above,  of
           course, are not exhaustive so also the mitigating circumstances.
           In my considered view, the tests that we have  to  apply,  while
           awarding death sentence are “crime test”,  “criminal  test”  and
           the “R-R test” and not the  “balancing  test”.  To  award  death
           sentence, the “crime test” has to be fully satisfied,  that  is,
           100% and “criminal test” 0%, that is, no mitigating circumstance
           favouring the accused. If there is  any  circumstance  favouring
           the accused,  like  lack  of  intention  to  commit  the  crime,
           possibility of reformation, young age  of  the  accused,  not  a
           menace to the  society,  no  previous  track  record,  etc.  the
           “criminal test” may favour the  accused  to  avoid  the  capital
           punishment. Even if both the tests are satisfied, that  is,  the
           aggravating  circumstances  to  the  fullest   extent   and   no
           mitigating circumstances favouring the accused, still we have to
           apply finally the rarest of the rare case test (R-R  test).  R-R
           test depends upon the perception of the society that is “society-
           centric” and not “Judge-centric”, that is, whether  the  society
           will approve the awarding of death sentence to certain types  of
           crimes or not. While applying that test, the court has  to  look
           into variety  of  factors  like  society’s  abhorrence,  extreme
           indignation and antipathy to certain types of crimes like sexual
           assault and murder of  intellectually  challenged  minor  girls,
           suffering from physical disability, old and  infirm  women  with
           those disabilities, etc. Examples are only illustrative and  not
           exhaustive. The courts  award  death  sentence  since  situation
           demands so, due to constitutional compulsion, reflected  by  the
           will of the people and not the will of the Judges.”

24.   On the question of sentence of death the  principle  in  nutshell  has
been stated in Haresh Mohandas Rajput vs. State Of  Maharashtra,  2011  (12)
SCC 56, which reads as under:
               “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  [pic]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.
           (See C. Muniappan v. State of T.N.(2010) 9 SCC 567,  Dara  Singh
           v. Republic of India. (2011) 2 SCC 490, Surendra Koli  v.  State
           of U.P, (2011) 4 SCC 80, Mohd. Mannan,  (2011)  5  SCC  317  and
           Sudam v. State of Maharashtra, (2011) 7 SCC 125.)




25.   In Sandeep vs. State of Uttar Pradesh, (2012) 6 SCC  107,  this  Court
observed:
              “72. It is, therefore, well settled  that  awarding  of  life
           sentence is the rule, death is an exception. The application  of
           “the rarest of the rare case” principle is  dependent  upon  and
           differs from case to case. However,  the  principles  laid  down
           earlier and restated in the  various  decisions  of  this  Court
           referred to above can be  broadly  stated  that  a  deliberately
           planned crime,  executed  meticulously  in  a  diabolic  manner,
           exhibiting inhuman conduct in a  ghastly  manner,  touching  the
           conscience of everyone and thereby disturbing the moral fibre of
           society would call for imposition of capital punishment in order
           to ensure that it acts as a deterrent.”





26.   Though we are convinced that the prosecution has proved the  guilt  of
the accused beyond all reasonable doubt, the accused committed the crime  in
a most cruel and inhuman manner. The helpless wife and young  children,  who
fell victims to the avaricious conduct and lust of the appellant  still  the
case does not fall within the four corners of the principle of  “the  rarest
of the rare case”, though no leniency can be shown to the appellant.

27.   There is 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.

28.   In Swamy Shraddananda vs. State of Karnataka, (2008) 13 SCC 767,  even
while setting  aside  the  sentence  of  death  penalty  and  awarding  life
imprisonment in order to serve the ends of justice, the Court  ordered  that
the appellant should not be released from the prison till  the  end  of  his
life. Likewise, in Ramraj v. State of Chhattisgarh, (2010) 1 SCC  573,  this
Court, while setting aside the death sentence, directed that  the  appellant
therein should serve a minimum period of 20 years including  the  remissions
and would not be released on completion of 14 years of imprisonment.

29.   In Sandeep’s (supra) taking into  note  the  aforesaid  decisions  and
facts and circumstances of the case,  this  Court  while  holding  that  the
imposition of death sentence to the accused Sandeep was  not  warranted  and
while awarding life imprisonment, the Court held that  the  accused  Sandeep
must serve  a  minimum  of  30  years  in  jail  without  remissions  before
consideration of his case for premature release.

30.   In the present case taking into the facts  and  circumstances  of  the
case in hand and reasons stated above, we hold that the imposition of  death
sentence to the accused Amar Singh Yadav was not warranted.  Accordingly  we
commute the sentence  to  life  imprisonment.  Further,  we  hold  that  the
accused Amar Singh Yadav must serve a minimum of 30 years  in  jail  without
remissions before consideration of his case for premature release.  Criminal
Appeals and Reference thus stand disposed of, modifying the sentence of  the
accused Amar Singh Yadav as one of the life and he should  undergo  sentence
for a fixed period of 30 years without any remissions.

31.    The  criminal  appeals  stand  disposed   of   with   the   aforesaid
observations.


                                               ………………………………………………………………………J.
                                               (SUDHANSU JYOTI MUKHOPADHAYA)




                                               ………………………………………………………………………J.
                                (DIPAK MISRA)
NEW DELHI,
JULY 01, 2014.

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