REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 143 OF 2007
OMA @ Omprakash & Anr. .. Appellant(s)
Versus
State of Tamil Nadu .. Respondent(s)
J U D G M E N T
K. S. Radhakrishnan, J.
1. Appellants, herein, were awarded death sentence by the trial court
after having found them guilty under Sections 395, 396 and 397 of Indian
Penal Code (for short ‘IPC’).
They were sentenced to death by hanging
under subsection 5 of Section 354 of Criminal Procedure Code for offences
committed under Section 396 IPC.
The trial court after noticing that, the
accused persons came from a State about 2000 k.m. away from Tamil Nadu,
held as follows:
“In this case, the accused came from a state about 2000 k.m. from
our state and they did not think that the victims were also human
like them but they thought only about the well being of their
family and their own life and committed the fear of death amongst
the common public of our state by committing robbery and murder for
about 11 years. Therefore, this court is of the opinion that the
death sentence that would be imposed on them would create a fear
amongst the criminals who commit such crime and further this case
is a rarest of rare case that calls for the imposition of death
sentence.”
2. We have noticed that the trial Court, among other grounds, was also
influenced by a speech made by the then Chief Justice of Tamil Nadu as well
as a judgment delivered by another learned Judge of Madras High Court on
rowdy panchayat system.
Following that judgment and the provision under
Section 396 IPC, the trial court held that the accused deserves no sympathy
and he be sent to the gallows.
3. The trial court then placed the matter before the Madras High Court
for confirmation of the death sentence awarded to the accused persons.
Meanwhile, the accused persons also preferred criminal appeal No. 566 of
2006 against the award of death sentence.
The appeal was partly allowed
and conviction against Accused Nos. 1 and 2 under Sections 395, 396 and 397
IPC were confirmed but the sentence under Section 396 IPC was modified to
that of life imprisonment instead of death sentence.
Against which,
accused Nos. 1 and 2 came up with this appeal.
While this appeal was
pending, the first appellant (A1) died and the second appellant (A2) has
prosecuted this appeal.
4. The prosecution case is as follows:
The appellants and nine other absconding accused persons entered the house
of one Lakshmi (PW 2) at 1 O’ clock in the night of 07.06.1995 with the
intention of committing burglary with iron rods in their hands and burgled
17 tolas of gold and Rs.5,000/- in cash.
In that process, it was alleged
that they had strangulated Doctor Mohan Kumar, husband of PW 2 with a rope
and thereby killed him.
It was alleged that the accused assaulted PW 2,
her son Sudhakar (PW 5) and other son Sakthivel (PW 6).
While escaping,
they had also attacked Bormin Varghese (PW 1) with iron rod.
FIR Cr. No.
403 of 1995 under Sections 396, 397 IPC was registered at 5.30 am on
07.06.1995 at Police Station Walajapet on the statement of one Patrick
Varghese recorded by PW 7.
Post Mortem of the deceased was conducted at
2.30 p.m. on 07.06.1995.
5. The prosecution could not nab the accused persons for over ten years.
A2 was arrested on 26.02.2005 in connection with some other case in Cr.
No. 59 of 1996.
It is the prosecution case that
his finger prints tallied
with the ones lifted from the place of occurrence in that other case.
Further, it was also stated, as per the investigation, A2 made a disclosure
and pursuant to that
the iron rod (M.O. 1) used 10 years back was
recovered.
6. A1 was arrested on 21.09.2005 by the special team in connection with
some other case in Cr. No. 352 of 2004 of Sri Perumbatoor Police Station.
An identification parade was conducted so far as A1 is concerned on
20.10.2005 in which PW 10, Karthik an Auto Driver said to have identified
A1.
Later, the charge-sheet was filed by PW 15 on 23.12.2005 and charges
under Sections 395, 396 and 397 IPC were framed against the accused persons
on 24.03.2006.
7. The prosecution examined 15 witnesses to prove the case against the
accused persons. Statements of the accused persons were recorded under
Section 313 Cr.P.C. on 17.04.2006.
8. The trial court, as already indicated, convicted both the accused
persons on 21.04.2006 for the offences under Sections 395, 396 and 397 IPC.
The trial court granted life imprisonment under Section 395 and fine of
Rs.1,000/- and they were sentenced to death for the offence under Section
396 IPC. They were also sentenced for RI for 7 years under Section 397
IPC.
9. The High Court, as already indicated, vide judgment dated 27.07.2006
converted the sentence of death to life imprisonment under Section 396 IPC
and rest of the sentence on other heads were confirmed.
10. Shri Sanjay Jain,
learned counsel appearing for the appellant (A2)
submitted that the trial court and the High Court had committed a grave
error in convicting the accused persons.
Learned counsel challenged his
conviction mainly on two grounds:
one on the ground of non-conducting the
identification parade so far as accused No.2 is concerned and
other on the
ground of recovery of alleged iron rod.
Learned counsel submitted that A2
was arrested after ten years of incident and was not properly identified by
any of the witnesses.
Learned counsel also highlighted the contradictions
in the evidence of PW1, PW2 and PW15 and brought out the lacuna in the
evidence of those witnesses.
It was pointed out that the identification
parade was conducted only in respect of A1 who is no more and
so far as A2
is concerned, no identification parade was conducted.
Further, it was
pointed out that the photograph of the appellant was shown to PW 1 which
was marked with the objection of the accused.
Further, learned counsel
pointed out that none of the witnesses in their deposition had stated that
they could identify A2.
Learned counsel pointed out that it was the
prosecution case that a rod was used for committing the crime but was not
recovered and the one alleged to have recovered had nothing to do with the
crime. Learned counsel submitted that the prosecution miserably failed to
prove the case against the appellant beyond reasonable doubt and that this
is a fit case where this Court should have given the benefit of doubt and
the accused be acquitted.
11. Shri C. Paramasivam,
learned counsel appearing for the State
submitted that the High Court has rightly confirmed the conviction of the
appellant and reduced the sentence to life imprisonment.
Learned counsel
submitted that
there is no fixed rule with regard to the period within
which test identification parade be held.
Further, it was pointed out that
no motive was alleged against the prosecution for the delay in conducting
test identification parade.
Learned counsel also submitted that
even in
the absence of test identification parade, the identification of accused
persons by the witnesses in court is a substantive piece of evidence.
Further, it was also pointed out
that
the gang of dacoits from Haryana and
Rajasthan States used to come down to state of Tamil Nadu and commits
heinous crimes like dacoity and murder and after arrest of those accused
persons, several undetected cases could be detected and few of the accused
persons have been convicted.
Learned counsel submitted that the trial
court and the High Court have rightly convicted the accused persons relying
on the evidence of PW 1, PW 2, PW 5 and PW 10.
12. We are unhappy in the manner in which Sessions Court has awarded
death sentence in the instant case.
The tests laid down by this Court for
determining the rarest of rare cases in Bachan Singh v. State of Punjab
(1980) 2 SCC 684 and Machhi Singh & Ors. v. State of Punjab (1983) 3 SCC
470 and other related decisions like Jagmohan Singh v. State of U.P. (1973)
1 SCC 20, were completely overlooked by the Sessions Court.
The Sessions
Court had gone astray in referring to the views expressed by the then Chief
Justice of Madras in a lecture delivered at Madurai, which advice according
to the Sessions Judge was taken note of by another learned Judge in
delivering a judgment in rowdy panchayat system.
Sessions Judge has stated
that he took into consideration that judgment and the provision in Section
396 of the Indian Penal Code to hold that the accused had committed the
murder and deserved death sentence.
Further, the trial court had also
opined that the imposition of death sentence under Section 396 IPC is the
only weapon in the hands of the judiciary under the prevailing law to help
to eliminate the crime and the judgment of the trial court should be on
that ground.
13. It is apposite to refer to the special reasons which weighed with the
Sessions Judge to award the death sentence which reads as follows:
“36. In this case, it has been decided by this court to impose
the maximum sentence of death to be imposed on the accused No. 1 and
2, under Section 396 of the Indian Penal Code, under Section 354(3) of
the Criminal Procedure Code, the special reasons for awarding such
sentence to be given show that the case is a case of rarest of rare
cases. Therefore, this court gives the following reasons:
a) xxx xxx xxx
b) Before the enactment of Criminal Procedure Code, many years
ago, civilization has come into existence. From the rule of
Kingdom to the rule of people and the democracy and
constitution came into existence in many countries. In
these circumstances, the death sentence is prevailing in all
the countries in different from and that sentence is imposed
on such criminal who deserves for the same. We all know that
more particularly in the court in like America, the sentence
like ‘lynching’ has attained the legal form and given to the
deserving criminals and in Arab countries the law provide for
imposing sentence like ‘slashing’, ‘beheading’ taking the
organ for organ like ‘eye for eye’, ‘tooth for tooth’. The
above mentioned facts are the development of criminal
jurisprudence. Therefore, this court is of the opinion that
it is proper to impose death sentence to the accused in this
case.
(c) xxx xxx xxx
(d) xxx xxx xxx
(e) In this case, the accused came from a State about 2000
k.m. from our State and they did not think that the victims were also
human like them but they thought only about the wellbeing of their
family and their own life and committed the fear of death amongst the
common public of our State by committing robbery and murder for about
11 years. Therefore, this court is of the opinion that the death
sentence that would be imposed on them would create a fear amongst the
criminals who commit such crime and further this case is a rarest of
rare cases that call for the imposition of death sentence.
(f) The honorable Chief Justice of High Court of Madras,
Justice A. P. Shah while delivering a lecture at Madurai said strict
laws should be enacted as regard to Child abuse and the persons
committing the crime should be punished accordingly. This advise was
taken note of the honorable Justice Karpagavinayagm while delivering a
judgment on rowdy panchayat system. He ordered that the government
should enact suitable law to eliminate this menace. Taking this
judgment into consideration and that there is a provision in Section
396 of the Indian Penal Code that the people involved in dacoity can
be imposed with death sentence, the accused who have committed the
murder without any pity deserve to be imposed with the death sentence.
This court is also of the opinion that the imposition of death
sentence under Section 396 of the Indian Penal Code is the only weapon
in the hands of the judiciary under the prevailing law to help to
eliminate the crime. Accordingly this judgment should be. Therefore,
this court is of the view that the death sentence should be imposed on
the accused.”
(emphasis added)
14. We cannot countenance any of the reasons which weighed with the
Sessions Judge in awarding the death sentence. Reasons stated in para
36(b) and (e) in awarding death sentence in this case exposes the ignorance
of the learned judge of the criminal jurisprudence of this country.
15. Section 354(3) of the Code states whenever a Court awards death
sentence, it shall record special reasons.
Going by the current
penological thought, imprisonment of life is the rule and death sentence is
an exception.
The legislator’s intent behind enacting Section 354(3)
clearly demonstrates the concern of the legislature.
This principle has
been highlighted in several judgments of this Court apart from the
judgments already referred to.
Reference may also be made to few of the
judgments of this Court, such as Ronal James v. State of Maharashtra,
(1998) 3 SCC 625; Allauddin Mian v. State of Bihar, (1989) 3 SCC 5; Naresh
Giri v. State of M.P., (2001) 9 SCC 615 etc.
We are disturbed by the
casual approach made by the Sessions Court in awarding the death sentence.
The ‘special reasons’ weighed with the trial judge to say the least, was
only one’s predilection or inclination to award death sentence, purely
judge-centric. Learned judge has not discussed the aggravating or
mitigating circumstances of this case, the approach was purely ‘crime-
centric’.
16. We are really surprised to note the “special reasons” stated by the
trial judge in para 36(b) of the judgment.
We fail to see why we import
the criminal jurisprudence of America or the Arab countries to our system.
Learned trial judge speaks of sentence like “lynching” and described that
it has attained legal form in America.
Lynching means kill someone for an
alleged offence without a legal trial, especially by hanging. Learned
judge failed to note that the constitutionality of death sentence came up
for consideration before the U.S. Supreme Court in William Henry Furman v.
State of Georgia 408 U.S. 238 (1972), which involved three persons under
death sentence, more than 600 prisoners on death row.
Five Judges
invalidated the death penalty, four dissented and the Court held that death
penalty to be cruel and unusual punishment in violation of the 8th and 14th
amendments.
Later in Gregg v. Georgia [ 428 U.S. 153 (1976)], the court
laid down the concern expressed in Furman.
In the United States, some
States have done away with death sentence as well. The judges’ inclination
to bring in alleged system of lynching to India and to show it as special
reason is unfortunate and shows lack of exposure to criminal laws of this
country.
Learned trial judge while showing special reasons referred to
law prevailing in Arab countries, like imposing sentence of ‘slashning’
beheading, taking organ for organ like “eye for eye”, “tooth for tooth” and
says those are the developments of criminal jurisprudence.
Learned judge
then says that the accused persons in the present case also deserve death
sentence.
Learned judge lost sight of the fact that the Criminal
Jurisprudence of this country or our society does not recognize those types
of barbaric sentences. We are surprised to see how those factors have gone
into one’s mind in awarding death sentence.
17. We are also not concerned with the question whether the criminals
have come from 20 km away or 2000 km away. Learned judge says that they
have come to “our state”, forgetting the fact that there is nothing like
‘our state’ or ‘your state’. Such parochial attitude shall not influence
or sway a judicial mind. Learned judge has further stated, since the
accused persons had come from a far away state, about 2000 km to “our
state” for committing robbery and murder, death sentence would be imposed
on them. Learned judge has adopted a very strange reasoning, needs fine
tuning and proper training..
18. Learned trial judge in para 36(f) has also referred to a judgment of
the High Court rendered by a learned Judge of the High Court on “rowdy
panchayat system”. Learned trial judge has stated that he has taken into
consideration that judgment also in reaching the conclusion that death
sentence be awarded. We are not in a position to know how that judgment is
relevant or applicable in awarding death sentence. Learned trial judge has
also not given the citation of that judgment or has given any explanation,
as to how that judgment is applicable to the case on hand.
19. Learned trial judge has also opined that the imposition of death
sentence under Section 396 of the IPC is the only weapon in the hands of
judiciary under the prevailing law to help to eliminate the crime.
Judiciary has neither any weapon in its hands nor uses it to eliminate
crimes. Duty of the judge is to decide cases which come before him in
accordance with the constitution and laws, following the settled judicial
precedents. A Judge is also part of the society where he lives and also
conscious of what is going on in the society. Judge has no weapon or
sword. Judge’s greatest strength is the trust and confidence of the
people, whom he serves. We may point out that clear reasoning and analysis
are the basic requirements in a judicial decision. Judicial decision is
being perceived by the parties and by the society in general as being the
result of a correct application of the legal rules, proper evaluation of
facts based on settled judicial precedents and judge shall not do anything
which will undermine the faith of the people.
20. We also fail to see how the reasons stated in para 36(f) be a guiding
factor to award death sentence. One of the Code of Conduct recognized at
the Bangalore Conference of the year 2001 reads as follows:
“A judge shall exercise the judicial function independently on the
basis of the judge’s assessment of the facts and in accordance with a
conscientious understanding of the law, free of any extraneous
influences, inducement, pressures, threats or interference, direct or
indirect, from any quarter or for any reason.”
21. Criminal Court while deciding criminal cases shall not be guided or
influenced by the views or opinions expressed by Judges on a private
platform. The views or opinions expressed by the Judges, jurists,
academicians, law teachers may be food for thought. Even the discussions
or deliberations made on the State Judicial Academies or National Judicial
Academy at Bhopal, only update or open new vistas of knowledge of judicial
officers. Criminal Courts have to decide the cases before them examining
the relevant facts and evidence placed before them, applying binding
precedents. Judges or academicians opinions, predilection, fondness,
inclination, proclivity on any subject, however eminent they are, shall not
influence a decision making process, especially when judges are called
upon to decide a criminal case which rests only on the evidence adduced by
the prosecution as well as by the defence and guided by settled judicial
precedents. National Judicial Academy and State Judicial Academies should
educate our judicial officers in this regard so that they will not commit
such serious errors in future.
22. The High Court of Madras heard the Criminal Appeal No. 566/2006 filed
by the accused Nos. 1 and 2, along with Referred Trial 1 of 2006. The High
Court, however, did not confirm the death sentence awarded by the trial
Court, but awarded life sentence to both the accused persons. As already
indicated, we are, in this case, concerned only with the conviction and
sentence awarded on the 2nd accused, since 1st accused is no more.
23. We may indicate at the outset that the accused persons were
apprehended after a period of ten years from the date of the incident and
nine other accused persons are still absconding. The incident had taken
place on 07.06.1995 and the accused persons were arrested on 26.02.2005
from Rajasthan in connection with some other case ie. Cr. No. 59 of 1996.
The prosecution version that A-2 finger prints tallied with ones lifted
from the place of occurrence in Cr. No. 59 of 1996. Further, it is also
the prosecution case that A2 made a disclosure and pursuant to that iron
rod (M.O. No.1) used 10 years back was recovered. An identification parade
was conducted so far as A1 is concerned on 20.10.2005, who is now no more.
However, no identification parade was conducted so far as A-2 is concerned.
It has come out in evidence that the photographs of A-2 was shown to PW 1
by the police on 30.10.2005 and asked him to identify the accused and on
identification by PW 1, the accused was interrogated by the police. In
cross-examination, PW1 has stated as follows:
“Accused No.2 attacked me before I could see him and make any
enquiry. He assaulted me with a rod. I could not see with which
hand he assaulted me. It is incorrect to suggest that the accused
did not assault me as stated by me.”
24. PW 1 also further stated in cross-examination as follows:
“There was light only after the neighbors switched on the light. It
was dark earlier. It is incorrect to suggest that it is not
possible to see the accused in the darkness.”
25. PW 2 – Lakshmi, wife of the deceased in her examination-in-chief
stated as follows:
“I opened my eyes and saw. When I saw, accused Nos. 1 and 2 were
present amongst the persons. I fainted immediately. There was
commotion in my house.”
26. In cross-examination, she has stated as follows:
“In the police interrogation, I did not tell that the accused Nos. 1
and 2 were present in the incident that took place in my house.”
27. PW 5, brother of PW 1, in his examination-in-chief has stated as
follows:
“At that time accused Nos. 1 and 2 attacked me with the rod. I fell
down and fainted. When I regained consciousness I was in the room
of my father. My father, my mother and younger brother sustained
injuries. I asked my mother to wake up my father. Myself and my
mother tried to wake up my father. After that neighbors admitted us
in the hospital. I remember it was in the C.M.C. hospital. The
accused attacked me similar rod that is being showed to me by you.
Material object No. 1 is the rod.”
28. In cross-examination, PW 5 stated as follows:
“In the police enquiry I told that I did not know what happened as I
was sleeping. I do not remember whether I told the doctor in the
hospital at Valajah that I was assaulted by unknown persons……………….In
the police interrogation, I did not tell that I had seen the accused
No. 1 and 2…………….”
29. The investigation officer stated that he did not receive any
documents about the arrest of the appellant (A2) and he had not mentioned
in the final report about the crimes that had taken place in other States.
30. We may indicate that in the instant case, FIR was registered against
unknown persons. A2, as already stated, was arrested after ten years on
26.02.2005 in connection with some other crime. We fail to see how PW1 and
PW2 could identify A2 in the court at this distance of time. They were
guided by the photographs repeatedly shown by the police.
31. Evidently, the witnesses did not know the accused earlier, hence the
accused could be identified only through a test identification parade which
was not done in this case, so far as A-2 is concerned. In this
connection, we may refer to the judgment of this court in Mohd. Iqbal M.
Shaikh v. State of Maharashtra (1998) 4 SCC 494 wherein this Court held
that:
“If the witness did not know the accused persons by name but could
only identify from their appearance then a test identification
parade was necessary, so that, the substantive evidence in court
about the identification, which is held after fairly a long period
could get corroboration from the identification parade. But
unfortunately the prosecution did not take any steps in that regard
and no test identification parade had been held.”
32. This Court in Ravindra Alias Ravi Bansi Gohar v. State of Maharashtra
and Others (1998) 6 SCC 609 deprecated the practice of showing the
photographs for indentifying the culprits and held as follows:
“The identification parade belongs to the investigation stage and
they serve to provide the investigating authority with materials to
assure themselves if the investigation is proceeding on the right
lines. In other words, it is through these identification parades
that the investigating agency is required to ascertain whether the
persons whom they suspect to have committed the offence were the
real culprits – and not by showing the suspects or their
photographs. Such being the purpose of identification parades, the
investigating agency, by showing the photographs of the suspects
whom they intended to place in the TI parade, made it farcical. If
really the investigating agency was satisfied that PWs 2 and 12 did
know the appellants from before and they were in fact amongst the
miscreants, the question of holding the TI parade in respect of
them for their identification could not have arisen.”
33. In Ravi alias Ravichandran v. State represented by Inspector of
Police (2007) 15 SCC 372, this Court held that:
“A judgment of conviction can be arrived at even if no test
identification parade has been held. But when a first information
report has been lodged against unknown persons, a test
identification parade in terms of Section 9 of the Evidence Act, is
held for the purpose of testing the veracity of the witness in
regard to his capability of identifying persons who were unknown to
him.”
34. Further, it is also held that:
“It was incumbent upon the prosecution to arrange a test
identification parade. Such test identification parade was
required to be held as early as possible so as to exclude the
possibility of the accused being identified either at the police
station or at some other place by the witnesses concerned or with
reference to the photographs published in the newspaper. A
conviction should not be based on a vague identification.”
35. A-2, it may be noted, was not named in the FIR, nor any
identification parade was conducted to identify him by the witnesses. It
is rather impossible to identify the accused person when he is produced for
the first time in the court i.e. after ten years since he was unknown to
the witnesses. We are of the view that it is a glaring defect which goes
to the root of the case since none of the witnesses had properly identified
the accused.
36. We may notice that it is the case of prosecution that one rod was
also used for the murder of the deceased persons in this case, but that rod
was not recovered. One rod stated to have been recovered at the instance
of A2 could not be connected with the crime. PW 5 in his examination-in-
chief had stated that the accused had attacked him with a similar rod that
was being shown to him which would indicate that the witness could not
conclusively connect the rod which was used for committing the crime.
Further, the rod was recovered after a period of ten years of the incident
and it is highly doubtful, whether it was used for the commission of the
offence. Further, the prosecution case is that a rope was used for the
strangulation causing death to Dr. Mohan Kumar, but the rope was not
recovered.
37. In Dwarkadas Gehanmal v. State of Gujarat (1999) 1 SCC 57, this Court
has held that it is for the prosecution to prove that the object recovered
has nexus with the crime. This Court in Mustkeem alias Sirajudeen v. State
of Rajasthan (2011) 11 SCC 724 held, “what is admissible under Section 27
of the Act is the information leading to discovery and not any opinion
formed on it by the prosecution.” This Court held as follows:
“With regard to Section 27 of the Act, what is important is
discovery of the material object at the disclosure of the accused
but such disclosure alone would not automatically lead to the
conclusion that the offence was also committed by the accused. In
fact, thereafter, burden lies on the prosecution to establish a
close link between discovery of the material object and its use in
the commission of the offence. What is admissible under Section
27 of the Act is the information leading to discovery and not any
opinion formed on it by the prosecution.”
38. In this case, the prosecution could not prove that the rod recovered
has any nexus with the crime alleged to have been committed by A-2. We are
of the view that the prosecution, therefore, could not establish the guilt
of the second accused beyond reasonable doubt. The High Court, therefore,
committed a gross error in awarding life sentence to A2.
39. This appeal is, therefore, allowed and the conviction and sentence
awarded to A-2 is set aside. We are informed that the accused has already
served the jail sentence for more than eight years now. A-2 is, therefore,
set at liberty, unless he is wanted in any other case.
…………………………………..J.
(K.S. Radhakrishnan)
…………………………………..J.
(Dipak Misra)
New Delhi,
December 11, 2012
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 143 OF 2007
OMA @ Omprakash & Anr. ... Appellants
Versus
State of Tamil Nadu ...Respondent
J U D G M E N T
Dipak Misra, J.
I respectfully concur with the conclusion and views expressed by my
learned Brother Radhakrishnan, J. However, with regard to the
ratiocination made by the learned Sessions Judge while imposing the death
sentence, I propose to record my views in addition especially in the
context of the reasons which have already been reproduced by my learned
brother.
2. Article 141 of the Constitution of India stipulates that the law
declared by the Supreme Court shall be binding on all Courts within the
territory of India. The reasons ascribed by the learned trial Judge are
required to be tested on the bedrock of precedents in their conceptual and
perceptual eventuality.
3. In Bachan Singh v. State of Punjab[1], the majority, after
deliberating many an aspect, came to hold that the provision under Section
302 of the Indian Penal Code which provides for imposition of death penalty
neither violates the letter nor the ethos and Article 19 of the
Constitution. Testing the said provision on the anvil of Articles 14 and
21 of the Constitution, it reaffirmed the view taken by this Court in
Jagmohan Singh v. State of U.P.[2] and held that death penalty does not
violate Articles 14, 19 and 21 of the Constitution.
4. The majority proceeded to answer the question whether the Court can
lay down standards or norms restricting the area of imposition of death
penalty to narrow the categories of murders and, in that context, it opined
that standardisation of the sentencing process would tend to sacrifice at
the altar of blind uniformity, in fact, indeed there is a real danger of
such mechanical standardisation degenerating into a bed of procrustean
cruelty. Thereafter, the Bench proceeded to state thus:-
“As Judges, we have to resist the temptation to substitute our own
value-choices for the will of the people. Since substituted judicial
“made-to-order” standards, howsoever painstakingly made, do not bear
the people's imprimatur, they may not have the same authenticity and
efficacy as the silent zones and green belts designedly marked out and
left open by Parliament in its legislative planning for fair play of
judicial discretion to take care of the variable, unpredictable
circumstances of the individual cases, relevant to individualised
sentencing. When Judges, acting individually or collectively, in their
benign anxiety to do what they think is morally good for the people,
take upon themselves the responsibility of setting down social norms
of conduct, there is every danger, despite their effort to make a
rational guess of the notions of right and wrong prevailing in the
community at large and despite their intention to abide by the
dictates of mere reason, that they might write their own peculiar view
or personal predilection into the law, sincerely mistaking that
changeling for what they perceive to be the community ethic. The
perception of “community” standards or ethics may vary from Judge to
Judge.”
[Emphasis added]
5. The majority referred to the decision in Gurbaksh Singh Sibbia v.
State of Punjab[3] and stated that the observations made therein aptly
applied to the desirability and feasibility of laying down standards in the
area of sentencing discretion. In the case of Gurbaksh Singh (supra), the
Constitution Bench had observed thus:-
“Judges have to decide cases as they come before them, mindful of the
need to keep passions and prejudices out of their decisions.”
6. After stating broad guidelines relating to the mitigating
circumstances, the majority ultimately ruled thus:-
“Judges should never be bloodthirsty. Hanging of murderers has never
been too good for them. Facts and Figures, albeit incomplete,
furnished by the Union of India, show that in the past, courts have
inflicted the extreme penalty with extreme infrequency — a fact which
attests to the caution and compassion which they have always brought
to bear on the exercise of their sentencing discretion in so grave a
matter. It is, therefore, imperative to voice the concern that courts,
aided by the broad illustrative guide-lines indicated by us, will
discharge the onerous function with evermore scrupulous care and
humane concern, directed along the highroad of legislative policy
outlined in Section 354(3) viz. that for persons convicted of murder,
life imprisonment is the rule and death sentence an exception. A real
and abiding concern for the dignity of human life postulates
resistance to taking a life through law's instrumentality. That ought
not to be done save in the rarest of rare cases when the alternative
option is unquestionably foreclosed.”
7. In Machhi Singh and Others v. State of Punjab[4], a three-Judge Bench
explained the concept of rarest of rare cases by stating that the reasons
why the community as a whole does not endorse the humanistic approach
reflected in “death sentence-in-no-case” doctrine are not far to seek. In
the first place, the very humanistic edifice is constructed on the
foundation of “reverence for life” principle. When a member of the
community violates this very principle by killing another member, the
society may not feel itself bound by the shackles of this doctrine.
Secondly, it has to be realized that every member of the community is able
to live with safety without his or her own life being endangered because of
the protective arm of the community and on account of the rule of law
enforced by it. The very existence of the rule of law and the fear of being
brought to book operates as a deterrent for those who have no scruples in
killing others if it suits their ends. Every member of the community owes a
debt to the community for this protection.
8. After stating about the feeling of the community and its desire for
self preservation, the Court observed that the community may well withdraw
the protection by sanctioning the death penalty. Thereafter, it ruled
thus:-
“But the community will not do so in every case. It may do so “in
rarest of rare cases” when its collective conscience is so shocked
that it will expect the holders of the judicial power centre to
inflict death penalty irrespective of their personal opinion as
regards desirability or otherwise of retaining death penalty.”
9. Emphasis was laid on certain aspects, namely, manner of commission of
murder, motive for commission of murder, anti social or socially abhorrent
nature of the crime, magnitude of crime and personality of the victim of
murder. After so stating, the propositions emerged from Bachan Singh
(supra) were culled out which are as follows:-
“(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.”
10. Thereafter, the Court stated that to apply the said guidelines, the
following questions are required to 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?”
11. In Lehna v. State of Haryana[5] a three-Judge Bench, after referring
to the pronouncements in Bachan Singh (supra) and Machhi Singh (supra),
ruled under what circumstances the collective conscience of the community
is likely to be shocked. We may fruitfully quota a passage from the same:-
“A convict hovers between life and death when the question of gravity
of the offence and award of adequate sentence comes up for
consideration. Mankind has shifted from the state of nature towards a
civilized society and it is no longer the physical opinion of the
majority that takes away the liberty of a citizen by convicting him
and making him suffer a sentence of imprisonment. Award of punishment
following conviction at a trial in a system wedded to the rule of law
is the outcome of cool deliberation in the court room after adequate
hearing is afforded to the parties, accusations are brought against
the accused, the prosecuted is given an opportunity of meeting the
accusations by establishing his innocence. It is the outcome of cool
deliberations and the screening of the material by the informed man
i.e. the Judge that leads to determination of the lis.
The principle of proportion between crime and punishment is a
principle of just desert that serves as the foundation of every
criminal sentence that is justifiable. As a principle of criminal
justice it is hardly less familiar or less important than the
principle that only the guilty ought to be punished. Indeed, the
requirement that punishment not be disproportionately great, which is
a corollary of just desert, is dictated by the same principle that
does not allow punishment of the innocent, for any punishment in
excess of what is deserved for the criminal conduct is punishment
without guilt.”
[Emphasis added]
12. In Haresh Mohandas Rajput v State of Maharshtra[6], the Bench
referred to the principles in Bachan Singh (supra) and Machhi Singh (supra)
and proceeded to state as follows:-
“The rarest of the rare case” comes when a convict would be a menace
and threat to the harmonious and peaceful coexistence of the society.
The crime may be heinous or brutal but may not be in the category of
“the rarest of the rare case”. There must be no reason to believe that
the accused cannot be reformed or rehabilitated and that he is likely
to continue criminal acts of violence as would constitute a continuing
threat to the society. The accused may be a menace to the society and
would continue to be so, threatening its peaceful and harmonious
coexistence. The manner in which the crime is committed must be such
that it may result in intense and extreme indignation of the community
and shock the collective conscience of the society. Where an accused
does not act on any spur-of-the-moment provocation and indulges
himself in a deliberately planned crime and meticulously executes it,
the death sentence may be the most appropriate punishment for such a
ghastly crime. The death sentence may be warranted where the victims
are innocent children and helpless women. Thus, in case the crime is
committed in a most cruel and inhuman manner which is an extremely
brutal, grotesque, diabolical, revolting and dastardly manner, where
his act affects the entire moral fibre of the society e.g. crime
committed for power or political ambition or indulging in organised
criminal activities, death sentence should be awarded. (See C.
Muniappan v. State of T.N.[7], Dara Singh v. Republic of India[8],
Surendra Koli v. State of U.P.[9], Mohd. Mannan v. State of Bihar[10]
and Sudam v. State of Maharashtra[11].)”
13. In Sham Alias Kishore Bhaskarrao Matkari v. State of Maharashtra[12],
while dealing with the justifiability of imposition of death penalty, the
Court took note of the aggravating and mitigating circumstances and
eventually opined that though the appellant therein caused death of three
persons, he had no pre-plan to do away with the family of his brother and
the quarrel started due to the land dispute and, in fact, on the fateful
night, he was sleeping with the other victims in the same house and in
those circumstances and other material placed clearly showed that he had
no pre-plan or predetermination to eliminate the family of his brother.
The Bench also took note of his antecedents and did not agree with the view
expressed by the High Court which had enhanced the sentence from life to
death on the ground that it was a rarest of the rare case where extreme
penalty of death was called for.
14. Recently, in Mohammed Ajmal Mohammad Amir Kasab alias Abu Mujahid v.
State of Maharashtra[13], the Court referred to the earlier decisions and
taking note of the terrorist attack from across the border, the magnitude
of unprecedented enormity on all scales, the conspiracy behind the attack,
the preparation and training for the execution, and more importantly, its
traumatizing effect, opined that it was the rarest of rare case to come
before this Court since the birth of Republic. The Bench, in that context,
expressed thus:-
“Putting the matter once again quite simply, in this country death as
a penalty has been held to be constitutionally valid, though it is
indeed to be awarded in the “rarest of rare cases when the alternative
option (of life sentence) is unquestionably foreclosed”. Now, as long
as the death penalty remains on the statute book as punishment for
certain offences, including “waging war” and murder, it logically
follows that there must be some cases, howsoever rare or one in a
million, that would call for inflicting that penalty. That being the
position we fail to see what case would attract the death penalty, if
not the case of the appellant. To hold back the death penalty in this
case would amount to obdurately declaring that this Court rejects
death as lawful penalty even though it is on the statute book and held
valid by the Constitutional Benches of this Court.”
15. We have referred to the aforesaid decisions to highlight that this
Court, on number of occasions, has dealt with under what circumstances
death penalty could be imposed and what are the mitigating factors not to
impose such punishment. Illustrative guidelines have been provided, and,
needless to say, it would depend upon the facts of each case. No strait-
jacket scale can be provided as has been said in number of pronouncements.
16. As is obvious from the reasoning of the learned Sessions Judge, he
has referred to the prevalence of death sentence in certain countries and
observed that in certain countries where law provides “slashing”,
“beheading”, “taking the organ for organ” like ‘eye for eye’, ‘tooth for
tooth’ to the accused, it shows the growth of criminal jurisprudence.
That apart, he had referred to the speech of the then learned Chief Justice
of the High Court, and it is clearly demonstrable that the same has
influenced his appreciation, analysis and perception. Being influenced by
the erroneous notions of law and speech of the learned Chief Justice, may
be understanding it totally out of context, his passion and prejudices have
dominated over his reasoning faculties and the result, as I perceive, is
devastating.
17. In Hindustan Times Ltd. v. Union of India and Others[14], a two-Judge
Bench of this Court referred to an article On Writing Judgments, by Justice
Michael Kirby of Australia[15] wherein it has been highlighted, apart from
any facet that the legal profession is entitled to have, it demonstrated
that the Judge has the correct principles in mind, has properly applied
them and is entitled to examine the body of the judgment for the learning
and precedent that they provide and further reassurance of the quality of
the judiciary which is the centre-piece of our administration of justice.
Thus, the fundamental requirement is that a Judge presiding over a criminal
trial has the sacrosanct duty to demonstrate that he applies the correct
principles of law to the facts regard being had to the precedents in the
field. A Judge trying a criminal case has a sacred duty to appreciate the
evidence in a seemly manner and is not to be governed by any kind of
individual philosophy, abstract concepts, conjectures and surmises and
should never be influenced by some observations or speeches made in certain
quarters of the society but not in binding judicial precedents. He should
entirely ostracise prejudice and bias. The bias need not be personal but
may be an opinionated bias.
18. It is his obligation to understand and appreciate the case of the
prosecution and the plea of the defense in proper perspective, address to
the points involved for determination and consider the material and
evidence brought on record to substantiate the allegations and record his
reasons with sobriety sans emotion. He must constantly keep in mind that
every citizen of this country is entitled to a fair trial and further if a
conviction is recorded it has to be based on the guided parameters of law.
And, more importantly, when sentence is imposed, it has to be based on
sound legal principles, regard being had to the command of the statute,
nature of the offence, collective cry and anguish of the victims and, above
all, the “collective conscience” and doctrine of proportionality. Neither
his vanity nor his pride of learning in other fields should influence his
decision or imposition of sentence. He must practise the conscience of
intellectual honesty and deal with the matter with all the experience and
humility at his command. He should remind himself that some learning does
not educate a man and definitely not a Judge. The learning has to be
applied with conviction which is based on proper rationale and without
forgetting that human nature has imperfect expression when founded bereft
of legal principle. He should not usher in his individual satisfaction but
adjudge on objective parameters failing which the whole exercise is likely
to be named “monstrous legalism”. In this context, I may profitably
reproduce the profound saying of Sir P. Sidney :-
“In forming a judgment, lay your hearts void of fore-taken opinions;
else, whatsoever is done or said will be measured by a wrong rule;
like them who have the jaundice, to whom everything appeareth
yellow.”
19. In this context, I may usefully refer to the pronouncement in State
of W. B. Others v. Shivanand Pathak and Others[16], wherein the High Court
had affirmed the death sentence imposed by the learned Sessions Judge. The
High Court had commenced the judgment with the expression that it was one
of the most sensational trials of the recent years and the murder is a
diabolical one because the innocent persons have been killed by the police
officers who were supposed to be the protectors of law-abiding citizens.
Commenting on the said expression, this Court observed thus:-
“We are constrained to observe that the High Court has not kept in
view the several decisions of this Court and has not examined the
circumstances proved while considering the question of sentence but on
the other hand, have been swayed away with the fact that the trial is
a sensational one, and therefore, the officials must be awarded the
extreme penalty of death. We do not find that it is a correct
appreciation of the law on the subject dealing with the award of death
penalty, even if a conviction under Sections 302/34 IPC is sustained.
The learned Sessions Judge also came to the conclusion that the case
can be treated to be the rarest of rare cases as police officials on
whose shoulders the safety of citizens lies and being the protectors
of the society are accused for killing of three civilians without any
provocation and resistance.”
[Underlining is ours]
From the aforesaid, it is graphically clear that a judge, while imposing
sentence, should not be swayed away with any kind of sensational aspect and
individual predilections. If it is done, the same would tantamount to
entering into an area of emotional labyrinth or arena of mercurial
syllogism.
20. In the case at hand, as is perceptible, the learned trial Judge has
primarily been guided by some kind of notion and connected them with
civilized world and democracy which, in my considered opinion, should not
have been at all referred to. He should remember the language of Article
302 of IPC and the precedents that govern the field for imposition of death
penalty. In that event, the perception might have been wrong but it could
not have been said that it is based on some kind of personal philosophy.
Thus, the view expressed does not sustain the concept of law and rather, on
the contrary, exhibits a sanctuary of errors. Speeches or deliberations in
any academic sphere are not to be taken recourse to unless they are in
consonance with binding precedents. A speech sometimes may reflect a
personal expression, a desire and, where a view may not be appositely
governed by words, is likely to confuse the hearers. It is a matter of
great remorse that the learned trial Judge had ventured to enter into such
kind of adventure. It can be stated with certitude that in a criminal
trial, while recording the sentence, he should have been guided and
governed by established principles and not by personal notions or even
ideas of eminent personalities Binding judgments should be the Bible of a
Judge and there should not be any deviation. I have said so, so that the
trial Court judges are appositely guided and refrain themselves from
engaging in innovative creativity or “borrowed creativity” which has no
sanction in Law.
21. Consequently, the appeal stands allowed, the judgment of conviction
and order of sentence are set aside and the appellant is directed to be set
at liberty forthwith unless he is required to be detained in any other
case.
……………………………….J.
[Dipak Misra]
New Delhi;
December 11, 2012.
-----------------------
[1] (1980) 2 SCC 684
[2] (1973) 1 SCC 20
[3] (1980) 2 SCC 565
[4] (1983) 3 SCC 470
[5] (2002) 3 SCC 76
[6] (2011) 12 SCC 56
[7] (2010) 9 SCC 567
[8] (2011) 2 SCC 490
[9] (2011) 4 SCC 80
[10] (2011) 5 SCC 509
[11] (2011) 7 SCC 125
[12] (2011) 10 SCC 389
[13] (2012) 9 SCC 1
[14] (1998) 2 SCC 242
[15] * [(1990) (Vol. 64. Australian Law Journal, p. 691)]
[16] (1998) 5 SCC 513
