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Saturday, May 9, 2015

It is true that any case of rape and murder would cause a shock to the society but all such offences may not cause revulsion in society. Certain offences shock the collective conscience of the court and community. The heinous offence of gang-rape of an innocent and helpless young woman by those in whom she had reposed trust, followed by a cold-blooded murder and calculated attempt of cover-up is one such instance of a crime which shocks and repulses the collective conscience of the community and the court. Therefore, in light of the aforesaid settled principle, this Court has no hesitation in holding that this case falls within the category of “rarest of rare”, which merits death penalty and none else. The collective conscience of the community is so shocked by this crime that imposing alternate sentence, i.e. a sentence of life imprisonment on the accused persons would not meet the ends of justice. Rather, it would tempt other potential offenders to commit such crime and get away with the lesser/lighter punishment of life imprisonment. In the result, after having critically appreciated the entire evidence on record as well as the judgments of the Courts below in great detail, we are in agreement with the reasons recorded by the trial court and approved by the High Court while awarding and confirming the death sentence of the accused-appellants. In our considered view, the judgment and order passed by the Courts below does not suffer from any error whatsoever. Therefore, this appeal is rejected and the sentence of death awarded to the accused-appellants is confirmed. The judgment and order passed by the High Court is accordingly affirmed. The appeal is disposed of in the aforesaid terms. Ordered accordingly.

                                                       REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL No. 1439 OF 2013

PURUSHOTTAM DASHRATH BORATE & ANR.           …Appellant(s)
                                   VERSUS
STATE OF MAHARASHTRA                        …Respondent(s)

                               J U D G M E N T
H.L. DATTU, CJI.
This appeal is directed against the judgment and order, passed by  the  High
Court of Judicature for Maharashtra at Bombay in Confirmation Case  No.1  of
2012 and Criminal Appeal  No.632  of  2012,  dated  12.09.2012,  13.09.2012,
24.09.2012 and 25.09.2012. By the impugned  judgment  and  order,  the  High
Court has confirmed the judgment of conviction and order of sentence  passed
by the Court of Sessions Judge, Pune in Sessions Case No.284 of 2008,  dated
20.03.2012, whereby the learned Sessions Judge has  convicted  the  accused-
appellants for the offence under Sections 302, 376(2)(g), 364 and  404  read
with Section 120-B of the Indian Penal Code, 1860  (for  short,  “the  IPC”)
and consequently awarded death sentence.

The Prosecution case in a nutshell is:
The deceased was residing with her brother-in-law and sister,  namely  PW-12
and PW-13 respectively, along with their minor son, in a flat in Pune  City.
She was serving as an Associate in the BPO Branch of Wipro Company  in  Pune
(for short, “the Company”) for about a year, where she used to work  in  the
night-shift, i.e. from 11:00 p.m. to 09:00 a.m. The fateful day  was  to  be
her last day since she had tendered her resignation  one  month  prior.  The
Company had arranged for and hired a private cab service  to  transport  its
employees from their residence to the workplace and back at  the  conclusion
of their respective work-shifts. Further, to ensure the safety and  security
of its female employees the Company imposed a mandatory condition, upon  the
owner of the cab, that a security guard be present in the said  vehicle,  if
a female employee was being transported.

On the fateful day, being 01.11.2007, the cab was deputed  to  pick  up  the
deceased from her residence at 10:30 p.m., following  which  the  cab  would
collect three other employees of the Company. As per the usual practice,  at
about 10:15 p.m., the deceased received a missed call  from  the  driver  of
the cab, Purushottam Borate, namely Accused No.1, informing her of the pick-
up. The deceased called back the Accused No.1 to pick her up in  10  minutes
to take her to the workplace, upon which PW-12 and his son  went  down  from
their flat to drop her to the cab. At  the  time  of  the  pick-up,  Pradeep
Kokade, namely Accused No.2,  was  sitting  in  the  rear  seat  behind  the
driver. The next employee to be collected by the cab was one  Sagar  Bidkar,
i.e. PW-11, and the expected time of the said pick up was at  about    10:45
p.m.

During the  journey,  between  10:30  p.m.  and  11:00  p.m.,  the  deceased
received calls on her mobile phone by one Jeevan  Baral,  a  friend  of  the
deceased  residing  in  Bangalore,  namely  PW-14,  who  heard  the   former
questioning the Accused No.1 as to where he was taking the cab, why  he  had
stopped in a jungle and what  he  was  doing.  Thereafter,  the  phone  call
between the deceased and PW-14  was  abruptly  disconnected  and  subsequent
attempts by the latter to call the deceased  were  rendered  futile  as  her
mobile phone was found to be switched off.  Further,  PW-14  was  unable  to
contact either the Pune Police or the relatives  of  the  deceased  in  Pune
till the following day.

It is the case of the prosecution that the Accused No.1 and 2,  being  aware
of the fact that the deceased would be  travelling  to  her  workplace  that
night and that she would be the first to be collected, under  the  guise  of
taking the deceased to the said workplace, hatched a  conspiracy  to  abduct
her and take her to a secluded spot. The prosecution has  alleged  that,  in
the time period between the abrupt end  to  the  aforementioned  phone  call
with PW-14 and the pick-up of PW-11 at about 12:45 a.m.,  the  Accused  No.1
and 2 committed the heinous offence of  gang-rape  and  thereafter  murdered
her by means of strangulating her with her own Odhani,  slashing  her  wrist
with a blade and smashing her head with a stone. Further, that the  accused-
appellants stripped the deceased of her possessions and money and then  left
her body in the field of one Kisan Bodke.

Thereafter, the cab in question, containing the Accused No.1 and 2,  arrived
at about 12:45 a.m., i.e. delayed by nearly two  hours,  to  pick  up  PW-11
from his residence. At the time, the deceased was no longer present  in  the
cab. The Accused No.1 informed the PW-11 that neither the deceased  nor  the
other employees had come for work that day and the cause of  the  delay  was
on account of a punctured tyre. The Accused No.2  vacated  the  cab  shortly
before the Accused No.1 brought the PW-11 to the workplace.

On the following morning, being 02.11.2007, one Pankaj  Laxman  Bodke,  i.e.
PW-8, noticed the dead  body  of a female on the boundary of  the  field  of
Kisan Bodke and therefore informed one Hiraman  Bodke,  i.e.  PW-1,  of  the
same. PW-1, after verifying the information, informed  the  Police  Station,
Talegaon Dabhade, where an FIR was promptly lodged.  Therefore,  an  offence
under Section 302 of the IPC was registered  and  the  spot  panchanama  was
prepared in the presence of PW-3. Inquest report  and  panchanama  was  also
prepared in the presence of PW-2 and thereafter the  body  of  the  deceased
was sent for post-mortem examination.  Furthermore,  bloodstained  stone,  a
pair of ladies sandal, bloodstained blade, soil mixed with blood and  sample
soil was seized from the spot of the incident.  The  clothes  found  on  the
body of the deceased, after the  post-mortem  examination,  were  also  duly
seized.  Dr.  Waghmare,  i.e.   PW-16,   who   performed   the   post-mortem
examination, gave the opinion that the cause of death was due to  shock  and
hemorrhage due to grievous injuries to  vital  organs  with  skull  fracture
involving frontal, left temporal, parietal bone  with  laceration  to  brain
with fractured ribs, right lung ruptured  with  strangulation.  Further,  on
the basis of the report of the Chemical Analyzer,  PW-16  gave  the  opinion
that the deceased was a victim of the offence of rape prior to her death.

In the meanwhile, on 02.11.2007 itself, due to the fact  that  the  deceased
had not returned home the next day, her sister, i.e. PW-13, started to  make
enquiries as to her whereabouts. PW-13 was informed by the Company that  the
deceased had not reported to the workplace on the previous  night.  Further,
PW-13 received information, from PW-14, about the events pertaining  to  the
telephonic conversation with the deceased between 10:30 p.m. and 11:00  p.m.
on that fateful night. Therefore, a missing persons report  was  immediately
filed that evening itself in the Chatushringi Police Station.

On 03.11.2007, PW-12 and PW-13 were informed  that  a  dead  body  has  been
recovered within the jurisdiction of the Talegaon  Dabhade  Police  Station.
Consequently, the said PW-12 and PW-13 reached the  Police  Station  and  on
the basis of a photograph of the body of the deceased and the  clothes  that
were seized, they confirmed the identity of the deceased.  Furthermore,  the
PW-12 and PW-13 also confirmed that the body at the morgue was that  of  the
deceased.

After the aforesaid FIR, dated 02.11.2007, was registered, the  Police  duly
initiated  an  investigation   and   made   inquires   with   the   Company.
Consequently, the Accused No.1 and 2  were  taken  into  custody,  at  about
05:30 a.m., on 03.11.2007. Thereafter, based on confessional  statements  of
the accused-appellants, the police were able to  recover  the  stolen  items
belonging to the deceased, from their respective houses,  namely  sim  card,
mobile phone, ear ring, watch, gold ring. The vehicle in which the  deceased
was taken by the accused-appellants was also seized and the  panchanama  was
prepared.  Further,  the  Test  Identification  Parade  was  conducted,   on
14.01.2008, wherein the PW-12 identified the Accused No.  1  and  2  as  the
persons in the cab with the deceased.

Pursuant to the  investigations,  a  charge-sheet  was  duly  filed  by  the
police.  On  05.03.2009,  the  charges  were  framed  under  Sections   364,
376(2)(g) and 302 read with  34  and  404  read  with  34  of  the  IPC.  On
03.04.2010, the charge was altered and the independent charge of  conspiracy
under Section 120-B of the IPC was added.  Additionally,  the  charge  under
Section 120-B of the IPC was added  with  the  charge  under  Sections  302,
376(2)(g), 364 and 404  of  the  IPC.  The  accused-appellants  pleaded  not
guilty to the aforesaid charges and thus, the case was committed to trial.
During the course of the Trial, the prosecution  examined  29  witnesses  of
which 11 were examined on the aspect of circumstantial evidence and  2  were
doctors to establish the factum of rape and murder. PW-1, the  Police  Patil
who registered the complaint personally, maintained his  version  as  stated
in the FIR, dated 02.11.2007, that PW-8 was the person who  found  the  body
of the deceased and  informed  the  complainant  of  the  same.  PW-12,  the
brother-in-law of the deceased, deposed that he was the last person  to  see
the latter alive and that too in the company of the accused-appellants.  The
statement of PW-14, that he was the last person  to  talk  to  the  deceased
between 10:30 p.m. and 11:00 p.m., was supported  by  documentary  evidence,
i.e. call records. The evidence of PW-12, PW-13 and  PW-14,  in  respect  of
the whereabouts of the deceased on the fateful night,  and  with  regard  to
the identity of the  accused-appellants  was  found  to  be  consistent  and
trustworthy. Furthermore,  based  on  the  confessional  statements  of  the
accused-appellants, the police were able to recover the vehicle,  the  items
stolen from the body of the deceased as well as the Odhani of the  deceased,
which was found to be one of the tools used to commit murder,  i.e.  by  way
of  strangulation.  The  Odhani  and  clothes  of  the  deceased  that   was
recovered, after chemical analysis, was found to  contain  semen  stains  of
both the accused-appellants. Further that, on the basis of the vaginal  swab
taken during the post-mortem examination and  the  report  of  the  Chemical
Analyzer, it has been shown that semen of both  the  accused-appellants  was
found in the said swab as well.

The Sessions Court, upon meticulous consideration of the material on  record
and the submissions made by the parties, observed that the evidence  of  the
prosecution formed a chain so  complete  that  it  excluded  any  hypothesis
other than the guilt  of  the  accused-appellants.  It  concluded  that  the
testimonies of PW-12, PW-13, PW-14, PW-1 and PW-11  are  true  and  reliable
and that the same along with the evidence of PW-16, the  post-mortem  report
and  the  report  of  the  Chemical  Analyzer  support  the  case   of   the
prosecution. The Sessions Court has noticed  that  the  evidence  of  PW-12,
which states that the deceased was last seen  in  the  company  of  accused-
appellants, coupled with the  lack  of  explanation  for  the  same  by  the
accused-appellants in their  statements  under  Section  313  of  the  Code,
provides a firm link in the  chain  of  circumstances.  The  Sessions  Court
observed that the accused-appellants have failed  miserably  in  discharging
their burden of proving that the deceased was not in their company  or  that
their cab suffered a punctured tyre. Further, that the  recoveries  made  at
the instance of the accused-appellants, including the vehicle  in  question,
the belongings of the deceased in the  respective  houses  of  the  accused-
appellants, the Odhani of the deceased which was used as a weapon of  murder
along with the medical evidence and testimony of PW-16 establish the  factum
of commission  of  the  crime  by  the  accused-appellants.  The  subsequent
conduct of the accused-appellants, where they  continued  to  pick-up  PW-11
and lied to him about the cause of the delay  and  the  whereabouts  of  the
deceased,  has  been  found  to  be  compatible  with  their  guilt  and  in
consonance with their meticulously chalked out plan for  the  commission  of
the offence of gang-rape and murder. Therefore, in light of  the  aforesaid,
the Sessions Court concluded that the chain of circumstances  evince  beyond
any reasonable doubt that the accused-appellants have committed the  heinous
offence of rape and murder of the deceased.

With regard to the quantum of sentence, the Sessions Court noticed the well-
settled principles laid down by this Court  in  Bachan  Singh  v.  State  of
Punjab, (1980) 2 SCC 684; Macchi Singh and Ors. v. State of  Punjab,  (1983)
3 SCC 470; Dhananjoy Chatterjee v. State of West Bengal, (1994) 2  SCC  220;
Devender Pal Singh v. State of NCT of Delhi, (2002) 5 SCC 234;  Aqeel  Ahmed
v. State of UP, (2008) 16 SCC 372 and Atbir Singh v. Govt. of NCT of  Delhi,
(2010) 9 SCC 1.  Further,  on  due  consideration  to  the  aggravating  and
mitigating circumstances present in the facts  of  the  case,  the  Sessions
Court observed that the balance was clearly  tilting  against  the  accused-
appellants. After affording  an  opportunity  of  hearing  to  the  accused-
appellants on the question of sentence, the Sessions Court has awarded  them
death sentence and fine of Rs.5,000/- each for the offence punishable  under
Section 120-B of the IPC, death sentence and fine  of  Rs.5,000/-  each  for
the offence punishable under Section 302 read  with  Section  120-B  of  the
IPC;  imprisonment  for  life  and  fine  of  Rs.5,000/-  for  the   offence
punishable under Section 376(2)(g) read  with  Section  120-B  of  the  IPC;
imprisonment  for  life  and  fine  of  Rs.5,000/-  each  for  the   offence
punishable under Section 364  read  with  Section  120-B  of  the  IPC;  and
rigorous imprisonment for two years and a fine of Rs.10,000/- each  for  the
offence punishable under Section 404 read with Section  120-B  of  the  IPC.
The Sessions Court, in its order of sentence, has noticed that the  accused-
appellants committed and executed the heinous offences in a pre-planned  and
meticulous manner which showed the determination  of  both  the  accused  to
complete the crime and take away the  life  of  the  accused.  The  Sessions
Court observed that the extreme  depravity  with  which  the  offences  were
committed and the merciless manner in which the deceased was raped and  done
to death, coupled with the gross abuse of the position of trust held by  the
Accused No.1 and the  lack  of  remorse  or  repentance  for  any  of  their
actions, would clearly indicate that the given case was  fit  to  be  placed
within  the  category  of  “rarest  of  rare”  and   the   only   punishment
proportionate to the brutality exhibited by the accused-appellants would  be
the death penalty.

Aggrieved by the aforesaid judgment and order, the accused-appellants  filed
an appeal before the High Court which was heard  along  with  the  Reference
for confirmation of death  sentence  under  Section  366  Code  of  Criminal
Procedure, 1973 (for  short,  “the  Code”)  and  disposed  of  by  a  common
judgment  and  order,   dated   12.09.2012,   13.09.2012,   24.09.2012   and
25.09.2012.

The High Court has, vide the impugned judgment and order, elaborately  dealt
with the entire evidence on record and extensively  discussed  the  judgment
and order of the Sessions Court in order to  ascertain  the  correctness  or
otherwise of the conviction and sentence awarded to the  accused-appellants.
The High Court has carefully  examined  the  evidence  on  record  including
testimonies of the Prosecution Witnesses and recorded the finding  that  the
said statements do not reflect any discrepancy  or  inconsistency  of  facts
and therefore must be considered as cogent,  reliable  and  incontrovertible
evidence. Further, that the medical evidence and the  deposition  by  PW-16,
i.e.  the  doctor  who  conducted  the  post-mortem   examination,   clearly
indicates the commission of the offence of rape and  the  brutal  murder  of
the deceased. The High Court has taken note of the statement  of  the  PW-16
that the probable cause of death was shock and hemorrhage  due  to  grievous
injury  to  vital  organs  with  skull  fracture  involving  frontal,   left
temporal, parietal bone with laceration to brain, fracture to the  ribs  and
right lung rupture with strangulation, and further  that  the  strangulation
was committed by overpowering the deceased  suddenly  from  behind.  On  the
basis of the medical report as well as the Chemical Analyzer’s  report,  the
High Court has observed that the factum of  commission  of  the  offence  of
rape by the Accused No.1 and 2 has been conclusively proved. The High  Court
has recorded that the recovery of weapons of murder  from  the  place  where
the body of the deceased was located as  well  as  from  the  house  of  the
Accused No.1, the latter being at the instance of a confession by  the  said
accused, has also been established beyond any shadow of doubt. In  light  of
the chain of circumstantial evidence  having  been  established  beyond  any
reasonable doubt, the High Court has concluded towards the guilt of accused-
appellants and confirmed the judgment of conviction passed by  the  Sessions
Court.

With respect of the quantum of sentence, the  High  Court  has  noticed  the
well-settled law laid down by this Court  and  concluded  that  the  present
case falls under the category of  “rarest  of  rare”.  The  High  Court  has
observed  that  the  heinous  acts  have  been  committed  by  the  accused-
appellants in a diabolical and cold-blooded manner  without  any  hesitation
and undeterred by its consequences. Further, that the manner  of  commission
of the offence coupled with their subsequent conduct obliterates any  chance
of reformation and that there is no guarantee  that  the  accused-appellants
would not commit  the  same  or  similar  offence  if  they  were  released.
Therefore, the High Court  confirmed  the  death  sentence  awarded  by  the
Sessions Court.

The accused-appellants, aggrieved by the  aforesaid  confirmation  of  death
sentence awarded to them, are before us in this appeal.
At the outset, it would be pertinent to note  that  this  Court  has  issued
notice on the limited issue of the  sentence,  by  order  dated  04.07.2013.
Therefore, the learned counsel would limit her case only to the question  of
determination of quantum of sentence awarded by the Courts  below  and  seek
for commutation of the said sentence.

Learned counsel for the accused-appellants would vehemently argue in  favour
of commutation of the death sentence awarded to the appellants as  the  case
did not fall within the purview of “rarest  of  rare”  cases.  Further,  she
would submit  that,  in  the  present  case,  the  mitigating  circumstances
outweighed the  aggravating  circumstances,  namely  that  the  age  of  the
accused-appellants,  the  absence  of  any  criminal  antecedents  and   the
possibility that they could be  reformed  and  rehabilitated  would  reflect
that a sentence of life imprisonment would suffice the ends of justice.  Per
contra, the learned counsel for the respondent-State would seek  to  support
the judgment and order passed by the High Court and Sessions Court.

We have given  our  anxious  consideration  to  the  arguments  advanced  by
learned  counsel  for  the  parties  to  the  appeal  and   also   carefully
scrutinized the evidence on record as well as the judgment(s)  and  order(s)
passed by the Courts below.


We do not intend to saddle the judgment with the settled position of law  in
respect of the sentencing policy and the principles evolved  by  this  Court
for weighing the aggravating and mitigating factors  in  specific  facts  of
the case. However, it would be apposite  to  notice  the  decision  of  this
Court in the case  of  Bachan  Singh  (supra),  wherein  the  constitutional
validity of the provisions that authorize the Trial  Court  to  award  death
sentence for the offence punishable under Section 302 of the IPC  and  other
offences was upheld. However, this Court  observed  that  there  can  be  no
strait jacket formula which can be applied  in  each  case  and  that  while
considering the sentence to  be  awarded,  the  Court  must  look  into  the
aggravating and mitigating circumstances.  The  ratio  of  the  decision  in
Bachan Singh (supra) has been followed in the case of Machhi  Singh  (supra)
wherein  this  Court  held  that  the  manner  of  commission,  motive   for
commission, anti-social nature of crime, magnitude of crime and  personality
of victim ought to be kept in mind while awarding an  appropriate  sentence.
It  was  held  that  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  balance  has  to  be
struck.

It is an established  position  that  law  regulates  social  interests  and
arbitrates  conflicting  claims  and  demands.  Security  of  persons  is  a
fundamental  function  of  the  State  which   can   be   achieved   through
instrumentality of criminal law. The society today has been infected with  a
lawlessness that has gravely undermined social order. Protection of  society
and stamping out criminal proclivity must be the object of law which may  be
achieved by imposing appropriate sentence. Therefore, in this  context,  the
vital function that this Court is required to  discharge  is  to  mould  the
sentencing system to meet this challenge. The facts and given  circumstances
in each case, the nature of the crime, the manner in which  it  was  planned
and committed, the motive for commission of the crime, the  conduct  of  the
accused and all other  attending  circumstances  are  relevant  facts  which
would enter into the area of consideration. Based on the facts of the  case,
this Court is required to be stern where it  should  be  and  tempered  with
mercy where warranted.

In this context, it would be profitable to notice the manner in  which  this
Court has considered the sentencing  policy  vis-à-vis  certain  aggravating
and mitigating circumstances.

In the case of Ramnaresh v. State of Chhattisgarh, (2012) 4  SCC  257,  this
Court referred to the Bachan  Singh  case  (supra)  and  Machhi  Singh  case
(supra) to cull out certain principles governing aggravating and  mitigating
circumstances. It would be beneficial to refer to the same hereinbelow:

“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.”

Further, it has been held by  this  Court  that  undue  sympathy  to  impose
inadequate sentence would do more harm to the justice system by  undermining
the public [pic]confidence in the efficacy of law [See Mahesh  v.  State  of
M.P., (1987) 3 SCC 80; Sevaka Perumal v. State of T.N.,  (1991)  3  SCC  471
and Mofil Khan v. State of Jharkhand, (2015) 1 SCC 67]. To give  the  lesser
punishment for the accused would be to render the  judicial  system  of  the
country suspect. If the courts do  not  protect  the  injured,  the  injured
would then resort to private vengeance. It is, therefore, the duty of  every
court to award proper sentence having regard to the nature  of  the  offence
and the manner in which it was executed or committed etc.

In the case of B.A. Umesh v. High Court of Karnataka, (2011) 3 SCC  85,  the
appellant was accused of a brutal rape and murder of a lady. It  was  found,
by medical evidence, that the deceased therein was a  victim  of  a  violent
rape prior to death and  the  death  was  caused  due  to  as  asphyxiation.
Further, the medical report found that the body of the deceased has  several
abrasions and lacerations. This  Court,  noticing  the  brutal  and  violent
manner of commission of the offences confirmed the  death  sentence  to  the
accused therein. It was held that:

“84. As has been indicated by the  courts  below,  the  antecedents  of  the
appellant and his subsequent conduct indicates that he is a  menace  to  the
society and is incapable of rehabilitation. The offences  committed  by  the
appellant were neither under duress nor on provocation and an innocent  life
was snuffed out by him after committing violent rape on the victim. ...”

In the Sevaka Perumal case (supra), the counsel for the  appellants  therein
contended that considering the young age of the accused, the same  would  be
a strong mitigating factor in favour of commutation of  death  sentence.  It
was contended therein that  the  accused  were  the  breadwinners  of  their
family which consisted of a  young  wife,  minor  child  and  aged  parents.
However, this Court, finding no force in the said contention, observed  that
such compassionate grounds are present in most cases and  are  not  relevant
for interference in awarding death sentence. The  principle  that  when  the
offence is gruesome  and  was  committed  in  a  calculated  and  diabolical
manner, the age of the accused may not be a  relevant  factor,  was  further
affirmed by a three-Judge Bench of this Court in Mofil Khan case (supra).

In view of the aforesaid decisions highlighting the approach of this  Court,
we would now consider the decision of  the  Courts  below,  in  the  present
case. The Sessions Court has noticed a similarity with the present case  and
the decision of this Court in the  case  of  Dhananjoy  Chatterjee  (supra).
Therefore, in light of the same,  the  Sessions  Court  has  held  that  the
present case would merit a sentence  of  death  penalty  and  no  less.  The
Session Court has observed:
“... In present case, accused driver  alongwith  co-accused  committed  rape
and murder of helpless and defenceless young girl who was reposing  complete
faith and trust on them by carefully planning the crime and executing it  in
barbaric manner. Taking the verdict in the matter  of  Dhananjoy  Chatterjee
(supra) as yardstick, there is no hesitation to put on record that the  case
at hand is the rarest of rare case warranting nothing  else  but  the  death
penalty to the accused persons. ...”


The High Court, by the impugned judgment and order, has concurred  with  the
findings recorded  by  the  Sessions  Court  in  respect  of  the  chain  of
circumstances  being  clearly  and  incontrovertibly  established   by   the
prosecution. With regard to the balance sheet of aggravating and  mitigating
circumstances,  the  High  Court  has,  in  addition  to  the  finding   and
observations of the Sessions Court, held that the aggravating  circumstances
far outweigh the mitigating circumstances. Therefore,  the  High  Court  has
recorded that there is no alternative but to confirm the death  sentence  as
awarded by the Sessions Courts.

At this juncture, it would be pertinent to notice the  Dhananjoy  Chatterjee
case (supra). As noticed above, the  said  case  has  been  noticed  by  the
Sessions Court, in the present case, as  bearing  great  similarity  to  the
facts herein. In the Dhananjoy Chatterjee  case  (supra),  the  accused  was
convicted for the brutal rape and murder of  a  young  girl  aged  about  18
years. The accused-therein was employed as a security guard of the  building
where the deceased resided and therefore was entrusted with the  noble  task
of ensuring  her  safety  and  security.  The  reasoning  therein  has  been
instrumental in moulding the sentencing policy of this Court  and  therefore
it would be gainful to reproduce the relevant paragraphs from the said  case
below:

“15. In our opinion, the measure of punishment in a given case  must  depend
upon the atrocity of  the  crime;  the  conduct  of  the  criminal  and  the
defenceless and unprotected state of the victim. Imposition  of  appropriate
punishment is the manner in which the courts respond to  the  society’s  cry
for justice against  the  criminals.  Justice  demands  that  courts  should
impose punishment befitting the crime so  that  the  courts  reflect  public
abhorrence of the crime. The courts must not only keep in  view  the  rights
of the criminal but also the rights of the victim of crime and  the  society
at large while considering imposition of appropriate punishment.

16. The sordid episode of the security  guard,  whose  sacred  duty  was  to
ensure the protection and welfare of the inhabitants of  the  flats  in  the
apartment, should have subjected the deceased, a  resident  of  one  of  the
flats, to gratify his lust and murder her in retaliation  for  his  transfer
on her complaint, makes the crime even more heinous.  Keeping  in  view  the
medical evidence and the state in which the body of the deceased was  found,
it is obvious that a most heinous type  of  barbaric  rape  and  murder  was
committed on a helpless and defenceless school-going girl of  18  years.  If
the security guards behave in this manner who will  guard  the  guards?  The
faith of the society by such a barbaric  act  of  the  guard,  gets  totally
shaken and its cry for justice becomes loud and clear. The offence  was  not
only inhuman and barbaric but it  was  a  totally  ruthless  crime  of  rape
followed by cold blooded murder and an affront to the human dignity  of  the
society. The savage nature  [pic]of  the  crime  has  shocked  our  judicial
conscience. There are no extenuating or mitigating circumstances  whatsoever
in the case. We agree that a real and abiding concern  for  the  dignity  of
human life is required to be kept in mind by the  courts  while  considering
the confirmation of the sentence of death  but  a  cold  blooded  preplanned
brutal  murder,  without  any  provocation,  after  committing  rape  on  an
innocent and defenceless young girl of  18  years,  by  the  security  guard
certainly makes this case a “rarest of the rare” cases which  calls  for  no
punishment other than the capital punishment and we accordingly confirm  the
sentence of death imposed upon the appellant for the offence  under  Section
302 IPC. The order of sentence imposed on the appellant by the courts  below
for offences under Sections 376 and 380 IPC are also  confirmed  along  with
the directions relating thereto as in the event  of  the  execution  of  the
appellant, those sentences would only  remain  of  academic  interest.  This
appeal fails and is hereby dismissed.”

It would now be necessary for this Court to consider the  balance  sheet  of
aggravating and mitigating circumstances. In the instant case,  the  learned
counsel for the accused-appellants has laid  stress  upon  the  age  of  the
accused persons, their family background and lack of  criminal  antecedents.
Further, the learned counsel  has  fervently  contended  that  the  accused-
appellants are capable of reformation and therefore should  be  awarded  the
lighter punishment of life imprisonment.

In our considered view, in the facts of the present case, age  alone  cannot
be a  paramount  consideration  as  a  mitigating  circumstance.  Similarly,
family background of the accused also could not be said to be  a  mitigating
circumstance. Insofar as Accused No.1 is concerned, it  has  been  contended
that he was happily married and his wife was pregnant at the relevant  time.
However, the Accused No.1 did not take into consideration the  condition  of
his wife or his mother while committing the said offence and, as  a  result,
his wife deserted him and his widowed mother is being looked  after  by  his
nephew and niece. Insofar as Accused No.2 is concerned, he has  two  sisters
who are looking after his widowed mother. Lack of criminal antecedents  also
cannot be considered as mitigating circumstance,  particularly  taking  into
consideration, the nature of heinous offence and cold and calculated  manner
in which it was committed by the accused persons.

In our considered view, the  “rarest  of  the  rare”  case  exists  when  an
accused would be a menace or, threat to and  incompatible  with  harmony  in
the society. In a case where the accused does not act on provocation  or  on
the spur of the  moment,  but  meticulously  executes  a  deliberate,  cold-
blooded and pre-planned crime, giving scant regard to  the  consequences  of
the same, the precarious balance in the sentencing  policy  evolved  by  our
criminal jurisprudence would tilt heavily towards the death  sentence.  This
Court is mindful of the settled principle that criminal law requires  strict
adherence to the rule of proportionality in  awarding  punishment,  and  the
same must be in  accordance  with  the  culpability  of  the  criminal  act.
Furthermore, this Court is also conscious to the  effect,  of  not  awarding
just punishment, on the society.

In the present factual matrix, Accused No.1 abducted the deceased with  help
of Accused No.2, and subsequently they raped and murdered her. They did  not
show any regret, sorrow or repentance  at  any  point  of  time  during  the
commission of the heinous offence, nor thereafter, rather they  acted  in  a
disturbingly  normal  manner  after  commission  of  crime.  It   has   been
established by strong and cogent evidence that after the commission  of  the
gruesome crime, Accused No.2 accompanied Accused No.1 for  the  second  pick
up and exited the cab only prior  to  reaching  the  gate  of  the  Company.
Further, it has been brought on record that the Accused  No.1  attempted  to
create false record of the whereabouts of the  cab  and  the  cause  of  the
delay in arriving at the workplace. In addition, it has  been  noticed  that
even though the accused-appellants were seen by  PW-12,  that  the  deceased
repeatedly questioned them of the unusual route, or that  the  deceased  was
talking to a friend on the phone during the journey, nothing  deterred  them
from committing the  heinous  offences.  In  fact  the  Sessions  Court  has
noticed that during the commission of the offences,  the  accused-appellants
were contacted by PW-11 seeking an explanation for the delay in picking  him
up, however even this did not deter them.
Thus, the manner in which the commission of the offence was so  meticulously
and carefully planned coupled  with  the  sheer  brutality  and  apathy  for
humanity in the execution of the offence, in  every  probability  they  have
potency to commit similar offence in future.  It  is  clear  that  both  the
accused persons have been proved to be a menace to  society  which  strongly
negates the probability that they can be reformed or rehabilitated.  In  our
considered opinion, the mitigating circumstances are wholly  absent  in  the
present factual matrix. This appeal is not a  case  where  the  offence  was
committed by the accused  persons  under  influence  of  extreme  mental  or
emotional disorder, nor is it a case where the offence may be argued  to  be
a crime of passion or one committed at the spur of the moment. There  is  no
question of accused persons believing that they were  morally  justified  in
committing the offence on helpless and defenceless young woman.
Therefore, in view of the above  and  keeping  the  aforesaid  principle  of
proportionality of sentence in mind, this Court is  in  agreement  with  the
reasoning of the Courts below that the  extreme  depravity  with  which  the
deceased was done to death coupled with  the  other  factors  including  the
position of trust held by the Accused No.1, would tilt the  balance  between
the aggravating and mitigating circumstances greatly  against  the  accused-
appellants. The gruesome act of raping a victim who had  reposed  her  trust
in the accused followed by a cold-blooded and  brutal  murder  of  the  said
victim coupled with the calculated and remorseless conduct  of  the  accused
persons  after  the  commission  of  the  offence,  we  cannot  resist  from
concluding that the depravity of the appellants’ offence  would  attract  no
lesser sentence than the death penalty.

In addition to the above, it would be necessary for  this  Court  to  notice
the impact of the crime on the community and particularly women  working  in
the night shifts at Pune, which  is  considered  as  a  hub  of  Information
Technology Centre. In recent years,  the  rising  crime  rate,  particularly
violent crimes against women has made the criminal sentencing by the  Courts
a subject of concern. The sentencing policy adopted by the Courts,  in  such
cases, ought to have a stricter yardstick so  as  to  act  as  a  deterrent.
There are  a  shockingly  large  number  of  cases  where  the  sentence  of
punishment awarded to the accused is not in proportion to  the  gravity  and
magnitude of the  offence  thereby  encouraging  the  criminal  and  in  the
ultimate making justice suffer by weakening the  system’s  credibility.  The
object of sentencing policy should be to see that  the  crime  does  not  go
unpunished and the victim of crime as also the society has the  satisfaction
that justice has been done to it. In the case of Machhi Singh (supra),  this
Court observed that the extreme punishment of death would be  justified  and
necessary in cases where the collective conscience of society is so  shocked
that it will expect the holders of judicial power to inflict  death  penalty
irrespective of their personal opinion.

It is true that any case of rape and murder  would  cause  a  shock  to  the
society but all such offences may not cause revulsion  in  society.  Certain
offences shock the collective conscience of the  court  and  community.  The
heinous offence of gang-rape of an innocent  and  helpless  young  woman  by
those in whom she had reposed trust, followed by a cold-blooded  murder  and
calculated attempt of cover-up is one such instance of a crime which  shocks
and repulses the collective conscience  of  the  community  and  the  court.
Therefore, in light of the aforesaid settled principle, this  Court  has  no
hesitation in holding that this case falls within the  category  of  “rarest
of  rare”,  which  merits  death  penalty  and  none  else.  The  collective
conscience of the community is  so  shocked  by  this  crime  that  imposing
alternate sentence, i.e. a sentence of  life  imprisonment  on  the  accused
persons would not meet the ends of justice. Rather,  it  would  tempt  other
potential  offenders  to  commit  such  crime  and   get   away   with   the
lesser/lighter punishment of life imprisonment.

In the result, after having critically appreciated the  entire  evidence  on
record as well as the judgments of the Courts below in great detail, we  are
in agreement with the reasons recorded by the trial court  and  approved  by
the High Court while awarding and  confirming  the  death  sentence  of  the
accused-appellants. In our considered view, the judgment  and  order  passed
by the Courts below does not suffer from any error whatsoever.

Therefore, this appeal is rejected and the sentence of death awarded to  the
accused-appellants is confirmed. The judgment and order passed by  the  High
Court is accordingly affirmed.

The appeal is disposed of in the aforesaid terms.

      Ordered accordingly.


                                                           .............CJI.
                                                                (H.L. DATTU)


                                                           ...............J.
                                                                (S.A. BOBDE)


                                                           ...............J.
                                                               (ARUN MISHRA)
NEW DELHI
May 08, 2015.








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