Death commuted to Life Imprisonment - Murder of wife and children - Trial court imposed death penalty - High court confirmed the same - Apex court held that In the present case taking into the facts and circumstances of the
case in hand and reasons stated above, we hold that the imposition of death
sentence to the accused Amar Singh Yadav was not warranted. Accordingly we
commute the sentence to life imprisonment. Further, we hold that the
accused Amar Singh Yadav must serve a minimum of 30 years in jail without
remissions before consideration of his case for premature release.=
the High Court dismissed the appeal and confirmed the
conviction and sentence for the offence punishable under Section 302, 307
and 436 IPC and thereby answered the Reference in confirming the death
sentence.=
Amar Singh had developed illicit relationship with
two other women, namely, Shashi of Kanpur and Rani of Bharthana, causing
differences in the family. Urmila got effected deduction of half salary of
the accused from the Department directly to pull on the expenses of the
family. On account of such deductions of salary and illicit relationship,
the accused became determined to cause the death of his wife, Urmila and
all four children. =
In Swamy Shraddananda vs. State of Karnataka, (2008) 13 SCC 767, even
while setting aside the sentence of death penalty and awarding life
imprisonment in order to serve the ends of justice, the Court ordered that
the appellant should not be released from the prison till the end of his
life. Likewise, in Ramraj v. State of Chhattisgarh, (2010) 1 SCC 573, this
Court, while setting aside the death sentence, directed that the appellant
therein should serve a minimum period of 20 years including the remissions
and would not be released on completion of 14 years of imprisonment.
29. In Sandeep’s (supra) taking into note the aforesaid decisions and
facts and circumstances of the case, this Court while holding that the
imposition of death sentence to the accused Sandeep was not warranted and
while awarding life imprisonment, the Court held that the accused Sandeep
must serve a minimum of 30 years in jail without remissions before
consideration of his case for premature release.
30. In the present case taking into the facts and circumstances of the
case in hand and reasons stated above, we hold that the imposition of death
sentence to the accused Amar Singh Yadav was not warranted. Accordingly we
commute the sentence to life imprisonment. Further, we hold that the
accused Amar Singh Yadav must serve a minimum of 30 years in jail without
remissions before consideration of his case for premature release. Criminal
Appeals and Reference thus stand disposed of, modifying the sentence of the
accused Amar Singh Yadav as one of the life and he should undergo sentence
for a fixed period of 30 years without any remissions.
31. The criminal appeals stand disposed of with the aforesaid
observations.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.967-968 OF 2010
AMAR SINGH YADAV … APPELLANTS
VERSUS
STATE OF U.P. … RESPONDENTS
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA,J
These appeals are directed against the common judgment dated 16th
February, 2010 passed by the High Court of Judicature at Allahabad in
Criminal Appeal No.1942 of 2009 and Reference No.5 of 2009. By the impugned
common judgment, the High Court dismissed the appeal and confirmed the
conviction and sentence for the offence punishable under Section 302, 307
and 436 IPC and thereby answered the Reference in confirming the death
sentence.
2. The case of the prosecution in short is that Urmila Devi was married
to accused Amar Singh Yadav, who was posted as Constable in Police Chowki
Gurdev Palace, Kanpur. Three daughters, Mamta, aged 24 years; Pooja aged 22
years; and Sudha 18 years and one son, Pankaj Yadav, aged 13 years were
born from their wedlock. Amar Singh had developed illicit relationship with
two other women, namely, Shashi of Kanpur and Rani of Bharthana, causing
differences in the family. Urmila got effected deduction of half salary of
the accused from the Department directly to pull on the expenses of the
family. On account of such deductions of salary and illicit relationship,
the accused became determined to cause the death of his wife, Urmila and
all four children. Pursuant to that determination, accused along with
companion driving the Maruti Van No.UP 78 C 8262 came to his wife Urmila
and he had taken away his wife and four children in Maruti Van on the
pretention of doing shopping for the marriage of one of the daughters.
Further case of the prosecution is that when the sun had set, at the time
of return the accused got Maruti Van stopped 25-30 metres ahead of
Udharanpur bridge on Jahanganj road and he along with the driver came out
of the Van. They sprinkled the petrol all around the Van after locking the
doors thereof. The accused along with companion then set the Maruti Van
ablaze, with intention of burning all occupants of the Maruti Van to death.
Thereafter, the accused and the driver tried to push the vehicle down in
the pit so that the occupants might not escape but meanwhile Inspector,
Police Station Chhibramau along his companion Police Constables luckily
arrived there and he without caring of his life broke open the doors of the
burning vehicle and took out accused’s wife and all four children from the
burning car. He immediately removed them to the Hospital for treatment. The
complainant having received the information, rushed to Lohia Hospital,
Farrukhabad where sister of the complainant i.e. Urmila and four children
briefed the entire incident to him.
3. Dhruv Narain, Constable Police No.286 (PW-14), registered the First
Information Report at 1.30 a.m. being Crime No.310/2005 under Section 436,
307 IPC. He received direction from Inspector Uma Shankar Yadav on R.T. Set
to depute the additional force. On this, Sub-Inspector Pramod Kumar Katiyar
along with other Constables proceeded to the spot. The next day at about
7.20 a.m., Sub-Inspector Pramod Kumar Katiyar returned to the Police
Station; vide General Diary it is reported that he got admitted all the
injured of the incident in Ram Manohar Lohia Hospital on the direction of
Inspector, Uma Shankar Yadav.
4. After registration of the case, its investigation was entrusted to
Pramod Kumar Katiyar, Sub-Inspector (PW-13), He proceeded to the spot and
prepared site plan Ext.Ka-20. He then proceeded to Lohia Hospital,
Farrukhabad and recorded the statement of Urmila Devi, Ext.Ka-18; Mamta,
Ext.Ka-15; Pooja, Ext.Ka-17; Sudha, Ext.Ka-16 and Pankaj Singh, Ext.Ka-19.
Out of injured persons Urmila Devi, Mamta and Pooja died. The case of the
accused was forwarded for trial under Section 307/302/436 IPC.
5. In support of prosecution case, as many as 15 witnesses were examined
by the prosecution, out of them Sudha(PW-5) and Pankaj Singh(PW-6) are
injured witnesses. In the defence statement under Section 313 Cr.P.C.
accused denied the allegation. Total 17 exhibits including dying
declarations of Urmila Devi, Ext.Ka-18; Mamta, Ext.Ka-15; Pooja, Ext.Ka-17
were produced.
6. On appreciation of the oral and documentary evidence and hearing the
parties, the Sessions Judge, Kanpur held the appellant-accused guilty for
the offences under Section 302, 307 and 436 IPC. The accused was convicted
and sentenced to rigorous imprisonment for life on count of Section 307
IPC. He was further convicted and sentenced to rigorous imprisonment for
seven years on count of Section 436 IPC. The accused was further convicted
and sentenced to death and Rs.10,000/- fine on count of Section 302 IPC and
it was directed that he shall be hanged by the neck till death. All
sentences shall run concurrently. The High Court by the impugned judgment
dated 16th February, 2010 upheld the conviction and death sentence of the
accused. The Reference was answered accordingly.
7. Learned counsel for the appellant while assailing the impugned
judgment submitted as follows:
(i) Deduction of 50% salary of the appellant for paying to his
wife by the Department cannot be a motive to ruin the entire
family.
(ii) Due to extra marital relationship with two other women the
appellant has been implicated.
(iii)If at all there was any motive to kill his wife but there
was no reason to ruin the life of two daughters specially the
elder daughter who was going to be married and for that purpose
articles were purchased.
(iv) The person who informed PW-4 that the vehicle was set on
fire was not produced by the prosecution.
(v) Dying declaration cannot be relied because the Doctor who
examined, who gave the certificate of fitness was not examined.
Statements of PW-5 and PW-6 injured witnesses are contradictory
to the dying declaration.
(vi) That no one has deposed that they saw the appellant
spreading the petrol. Hence, there is doubtful of identity of
such person.
(vii) The driver of the van was not arrested and examined nor
the two women who had an extra marital affair with the appellant
were examined.
(viii) The alleged incident does not fall within the category of
“rarest of the rare case”, and, therefore, death penalty was
uncalled for. This is not a fit case to impose a death penalty.
8. Complainant, Satendra Singh (PW-1), brother of the deceased-Urmila,
has proved the contents of the FIR. He is not the eye-witness of the
incident in question. He deposed that on 29th April, 2005, he received the
information from the Police Station at 9 p.m. that his sister and four
children were put to fire while confined in the Maruti Van. He arrived at
Lohia Hospital at 11 a.m. and found all the persons in burn condition. His
sister recognised him and briefed the entire incident. He reported the same
to the Police. The accused-Amar Singh Yadav and driver straightaway ran
awayfrom the scene. The Police had taken them out of the burn Maruti Van
after breaking open the door.
9. This witness has told the motive of Amar Singh to cause the incident
that his sister obtained the order of half of salary of Amar Singh payable
to him by the order of the Superintendent of Police, Kanpur because Amar
Singh was maintaining the illicit affairs with two women. The marriage of
Mamta was settled on 11th May, 2005 and on pretend of purchase for marriage
of Mamta accused Amar Singh had taken his wife and all the children to the
market.
10. Uma Shankar Yadav, Inspector (PW-4), has testified in the Court that
on 29th April, 2005 at about 8.30 p.m. when he was in search the wanted
accused, he noticed a Maruti Van being blown near Udharanpur bridge. He
immediately arrived there. Two persons standing there who immediately fled
away from the scene. He and accompanying Home Guard, tried to extinguish
the fire by throwing sand on fire and as soon as the fire receded, he broke
open the window panes and had taken all the five occupants out of the
Maruti Van. This witness further informed that all the injured were removed
to Primary Health Centre, Chhibramau for treatment by him. Urmila then had
briefed the matter to him about the accused maintaining illicit
relationship with two women and she also told that in what manner the
accused had pretended to take them away to the market and blew up the
Maruti Van.
11. Sudha (PW-5), aged 18 years deposed on oath that on the day of the
incident, i.e., 29th April, 2005, her father (accused) had taken her mother
Urmila, elder sister Mamta, younger sister Pooja and brother Pankaj in
Maruti Van to Chhibramau for purchasing material for the marriage of sister
Mamta. No purchase was made from Chhibramau. They started returning to the
house; at about 6.30 p.m. The vehicle was being driven at very slow speed.
Her father stopped the vehicle at Chhibramau bus stand where he passed on
time for one hour. In between 7.15 p.m. to 7.30 p.m. all of them driven
towards the village, the Maruti Van was caused to be stopped where a board
containing the information, ”stop there is a school here”. The driver
stopped the vehicle saying that “the car has become hot”. Her father then
told that, “Let him bring the wet cloth so that the engine may be cooled
down”. The Van was again made to drive and ultimately her father and driver
had come out of the Van after locking the windows. Her father had already
sprinkled the petrol in the Van. He torched the Van at once and the Van
started burning. Meanwhile, the Police had arrived there to their rescue
and they were taken out of the vehicle by the Police after breaking open
the window. She also proved the fact of her father having maintained extra
marital relationship with two other women due to which, her mother got
deduction of half salary from the salary of her father.
12. Likewise, Pankaj (PW-6) corroborated the statement of Sudha. He
stated that on 29th April, 2005 his father Amar Singh and the driver took
all of them to Chhibramau to purchase materials. At the time of return
near the river Kali, the car was stopped then petrol was poured on them and
set on fire. They tried to come out but their father and the driver just
watched the fire. He further stated his father was working in Police and
posted at Kalyanpur in Kanpur. He stated that his father and driver set all
of them on fire.
13. Anil Kumar Katiyar (PW-12), Nayab Tehsildar, having received the
instruction from the District Magistrate, recorded the dying declaration of
injured Sudha, Pooja, Mamta, Urmila and Pankaj, out of whom, Urmila and
Pooja died. Mamta, whose dying declaration was recorded by Sub-Divisional
Magistrate(PW-10) also died. The dying declaration of Urmila, which is
Ext.Ka-18, is reproduced in English version as under:
“My husband-Amar Singh is in Police department and is
posted at Police Station-Kalyanpur in Kanpur. My husband has
soleminsed two marriages after me. My children and I had started
getting half of his salaries and by which allowance (we were)
maintaining. Due to all these reasons, my husband was angry with
me and the children. But yesterday on 29.04.2005 by saying that
articles were to be purchased for the marriage of daughter, all
of us were taken to Chhibramau. Deliberately (we were) taken to
Chhibramau and despite of our repeated requests delay was caused
and (we) left late. While coming back the driver and my husband-
Amar Singh stopped the car near the bridge of river Kali by
saying that the car had become hot. After that oil was sprinkled
on all of us and set on fire. When we tried to leave the car,
then again we were pushed into the car. They kept on watching at
us in flames from outside. I do not know the name of the driver,
my husband set me and my children on fire and the driver fully
co-operated in it.”
14. The dying declaration of the deceased-Pooja made to PW-12, which is
Ext.Ka-17, in English version is as under:
“Yesterday on 29.04.05 my father-Amar singh and the driver
took me, my mother and both the sisters and brother with them to
Chhibramau by Maruti by saying this that articles were to be
purchased for the marriage of ‘Didi’ (elder sister) and clothes
etc. were to be got purchased for us. Some articles were
purchased for ‘Didi’ at Chhibramau and much delay was caused
there. Left Chhibramanu in the evening and stopped the car near
the river Kali while saying that the car had become hot and was
to be cooled down. By stopping the Maruti, father-Amar Singh and
the driver put oil upon us and set us on fire and when (we)
tried to come out of the car, then again we were pushed into the
car. Do not know the name of the driver who was with the father.
Mother had started getting half amount of the salary of father
and due to this reason father was angry from all of us. Father
and the driver after setting us on fire ran away. After sometime
the Police got us admitted here.”
15. The verbatim reproduction of dying declaration of deceased-Mamta made
to City Magistrate (PW-10), Raj Pal singh, which is Ext.Ka-15, is as under:
“I, Mamta daughter of Amar Singh, resident of Vida, village-
Mohammadabad, Farrukkhabad, age about 20 years, am in full
senses and state of mind, my father-Amar Singh along with the
driver was taking me, mother-Urmila, Shobha and Pankaj to
Chhibramau as articles(relating to) my marriage were to be
purchased from there. At about 7.30 p.m. on 29.04.05 while
coming back from Chhibramau I, my mother-Urmila, Shobha, Pankaj
and Pooja were closed in Maruti Van near the river Kali, before
closing the car father said that car had become hot up and on
the pretext of sprinkling water, sprinkled the petrol inside the
car and set on fire. The door was closed from outside, my father
set on fire, the driver was helping him. My father was desiring
to kill me and as well as to all those who were closed inside by
setting on fire. My father had soleminsed second marriage. My
mother had got made his salary half and since then he used to
quarrel.”
16. In the initial stage dying declarations of Sudha and Pankaj were also
recorded by Nayab Tahseeldar (PW-12), but as both of them survived so their
statements were only treated as exhibits. The statement of Sudha, which is
Ext.Ka-16, is as under:
“Yesterday on 29.04.05 in the evening at about 7.00 hours, my
father and the driver closed my mother, me and my two sisters
and my brother in the car and set on fire. Before closing the
car firstly the oil was poured on us. Father took all of us on
the pretext of purchasing goods for the marriage of sister-Mamta
and clothes etc. for all of us, from Chhibramau. In chhibramau
only some cream and powder etc. were purchased for sister. After
that left Chhibramau very late. At the time of coming back
stopped the car near the bridge that the car had become hot and
it was to be cooled down and suddenly set us on fire. When we
started burning at that time father and the driver kept on
looking at us from outside and when sister tried to go out of
the car, then father once again pushed me inside the car. My
father is in Police department. He is posted at Kalyanpur in
Kanpur. I was set on fire by my father and the driver. All of us
have been set on fire by these people only.”
17. The statement of Pankaj Singh, which is Ext.Ka-19, is reproduced as
under:
“Yesterday on 29.04.05 my father-Amar Singh and the driver took
me and my three sisters and mother in Maruti to Chhibramau for
purchasing. While coming back, the car was stopped near the
river Kali, oil was poured on us and set on fire. We tried to
come out, then again (we were) pushed inside the car. My father
and driver kept on watching us while standing outside and we
kept on crying and screaming, but that did not put any effect on
them. My father is in Police department and is posted at
Kalyanpur in Kanpur. Father and the driver set all of us on
fire.”
18. The facts brought out in the dying declarations of Urmila, Ext.Ka-18;
Pooja, Ext.Ka-17 and Mamta,Ka-15 has corroborated the statements of injured
eye-witnesses, Sudha (PW-5) and Pankaj Singh (PW-6).There is no room but to
suggest that the accused caused the death of the deceased. The dying
declarations clearly implicate the accused. There are no suspicious
features which affect the credibility of the dying declarations
particularly the deceased being related to the accused. There is no
apparent reason as to why the deceased Urmila(wife), Mamta(daughter), Pooja
(daughter) were connecting their husband/father with the murderer attack.
Mere fact that Doctor in whose presence the dying declaration was recorded
and/or who endorsed it, is not examined, does not affect the evidentiary
value of the dying declaration. The evidence of Uma Shankar Yadav,
Inspector (PW-4) is also corroborated by the evidence of eye-witnesses
Sudha (PW-5) and Pankaj (PW-6). There is no discrepancy in the statements
of the eye-witnesses to disbelieve them. The Trial Court rightly convicted
the appellant for the offence under Section 302, 307 and 436 IPC as
affirmed by the High Court.
19. The next question is whether the death sentence awarded to the
appellant is excessive, disproportionate on the facts and circumstances of
the case, i.e. whether the present case can be termed to be a “rarest of
the rare case".
20. The Guidelines emerged from Bachan Singh vs. State of Punjab, 1980 (2)
SCC 684 were followed in Machhi Singh and others vs. State of Punjab, 1983
(3) SCC 470. In the said case the Court observed:
“38. In this background the guidelines indicated in Bachan
Singh case, 1980 (2) SCC 684 will have to be culled out and
applied to the facts of each individual case where the question
of imposing of death sentence arises. The following propositions
emerge from Bachan Singh case(supra):
“(i) The extreme penalty of death need not be inflicted
except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of
the ‘offender’ also require to be taken into consideration along
with the circumstances of the ‘crime’.
(iii) Life imprisonment is the rule and death sentence is an
exception. In other words death sentence must be imposed only
when life imprisonment appears to be an altogether inadequate
punishment having regard to the relevant circumstances of the
crime, and provided, and only provided, the option to impose
sentence of imprisonment for life cannot be conscientiously
exercised having regard to the nature and circumstances of the
crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so the mitigating
circumstances have to be accorded full weightage and a just
balance has to be struck between the aggravating and the
mitigating circumstances before the option is exercised.
39. In order to apply these guidelines inter alia the
following questions may be asked and answered:
(a) Is there something uncommon about the crime which renders
sentence of imprisonment for life inadequate and calls for a
death sentence?
(b) Are the circumstances of the crime such that there is no
alternative but to impose death sentence even after according
maximum weightage to the mitigating circumstances which speak in
favour of the offender?
40. If upon taking an overall global view of all the
circumstances in the light of the aforesaid proposition and
taking into account the answers to the questions posed
hereinabove, the circumstances of the case are such that death
sentence is warranted, the court would proceed to do so.”
21. In Ronny alias Ronald James Alwaris and others vs. State of
Maharashtra, 1998 (3) SCC 625, this Court noted the law laid-down in
Allauddin Mian & Ors. Vs. State of Bihar, (1989) 3 SCC 5, that unless the
nature of the crime and circumstances of the offender reveal that criminal
is a menace to the society and the sentence of life imprisonment would be
altogether inadequate, the Court should ordinarily pass a lesser punishment
and not punishment of death which should be reserved for exceptional cases
only. Considering the cumulative effect of all the factors, like the
offences committed under the influence of extreme mental or emotional
disturbance, the young age of the accused, the possibility of reform and
rehabilitation, etc. the Court may convert the sentence into life
imprisonment.
22. This Court noticed the aggravating and mitigating circumstances in
Ramnaresh and others vs. State of Chattisgarh, 2012 (4) SCC 257, and held
as follows:
“76. The law enunciated by this Court in its recent
judgments, as already noticed, adds and elaborates the
principles that were stated in Bachan Singh,(1980) 2 SCC 684,
and thereafter, in Machhi Singh,(1983) 3 SCC 470. The aforesaid
judgments, primarily dissect these principles into two different
compartments—one being the “aggravating circumstances” while the
other being the “mitigating circumstances”. The court would
consider the cumulative effect of both these aspects and
normally, it may not be very appropriate for the court to decide
the most significant aspect of sentencing policy with reference
to one of the classes under any of the following heads while
completely ignoring other classes under other heads. To balance
the two is the primary duty of the court. It will be appropriate
for the court to come to a final conclusion upon [pic]balancing
the exercise that would help to administer the criminal justice
system better and provide an effective and meaningful reasoning
by the court as contemplated under Section 354(3) CrPC.
Aggravating circumstances
(1) The offences relating to the commission of heinous crimes
like murder, rape, armed dacoity, kidnapping, etc. by the
accused with a prior record of conviction for capital felony or
offences committed by the person having a substantial history of
serious assaults and criminal convictions.
(2) The offence was committed while the offender was engaged
in the commission of another serious offence.
(3) The offence was committed with the intention to create a
fear psychosis in the public at large and was committed in a
public place by a weapon or device which clearly could be
hazardous to the life of more than one person.
(4) The offence of murder was committed for ransom or like
offences to receive money or monetary benefits.
(5) Hired killings.
(6) The offence was committed outrageously for want only
while involving inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful
custody.
(8) The murder or the offence was committed to prevent a
person lawfully carrying out his duty like arrest or custody in
a place of lawful confinement of himself or another. For
instance, murder is of a person who had acted in lawful
discharge of his duty under Section 43 CrPC.
(9) When the crime is enormous in proportion like making an
attempt of murder of the entire family or members of a
particular community.
(10) When the victim is innocent, helpless or a person relies
upon the trust of relationship and social norms, like a child,
helpless woman, a daughter or a niece staying with a
father/uncle and is inflicted with the crime by such a trusted
person.
(11) When murder is committed for a motive which evidences
total depravity and meanness.
(12) When there is a cold-blooded murder without provocation.
(13) The crime is committed so brutally that it pricks or
shocks not only the judicial conscience but even the conscience
of the society.
Mitigating circumstances
(1) The manner and circumstances in and under which the
offence was committed, for example, extreme mental or emotional
disturbance or extreme provocation in contradistinction to all
these situations in normal course.
(2) The age of the accused is a relevant consideration but
not a determinative factor by itself.
[pic]
(3) The chances of the accused of not indulging in commission
of the crime again and the probability of the accused being
reformed and rehabilitated.
(4) The condition of the accused shows that he was mentally
defective and the defect impaired his capacity to appreciate the
circumstances of his criminal conduct.
(5) The circumstances which, in normal course of life, would
render such a behaviour possible and could have the effect of
giving rise to mental imbalance in that given situation like
persistent harassment or, in fact, leading to such a peak of
human behaviour that, in the facts and circumstances of the
case, the accused believed that he was morally justified in
committing the offence.
(6) Where the court upon proper appreciation of evidence is
of the view that the crime was not committed in a preordained
manner and that the death resulted in the course of commission
of another crime and that there was a possibility of it being
construed as consequences to the commission of the primary
crime.
(7) Where it is absolutely unsafe to rely upon the testimony
of a sole eyewitness though the prosecution has brought home the
guilt of the accused.
While determining the questions relating to sentencing policy, the
Court laid down the Principles at paragraph 77 which reads as follows:
“77. While determining the questions relatable to sentencing
policy, the court has to follow certain principles and those
principles are the loadstar besides the above considerations in
imposition or otherwise of the death sentence.
Principles
(1) The court has to apply the test to determine, if it was
the “rarest of rare” case for imposition of a death sentence.
(2) In the opinion of the court, imposition of any other
punishment i.e. life imprisonment would be completely inadequate
and would not meet the ends of justice.
(3) Life imprisonment is the rule and death sentence is an
exception.
(4) The option to impose sentence of imprisonment for life
cannot be cautiously exercised having regard to the nature and
circumstances of the crime and all relevant considerations.
(5) The method (planned or otherwise) and the manner (extent
of brutality and inhumanity, etc.) in which the crime was
committed and the circumstances leading to commission of such
heinous crime.”
23. In Shankar Kisanrao Khade vs. State of Maharashtra, 2013 (5) SCC 546,
dealing with a case of death sentence, this Court observed:
“52. Aggravating circumstances as pointed out above, of
course, are not exhaustive so also the mitigating circumstances.
In my considered view, the tests that we have to apply, while
awarding death sentence are “crime test”, “criminal test” and
the “R-R test” and not the “balancing test”. To award death
sentence, the “crime test” has to be fully satisfied, that is,
100% and “criminal test” 0%, that is, no mitigating circumstance
favouring the accused. If there is any circumstance favouring
the accused, like lack of intention to commit the crime,
possibility of reformation, young age of the accused, not a
menace to the society, no previous track record, etc. the
“criminal test” may favour the accused to avoid the capital
punishment. Even if both the tests are satisfied, that is, the
aggravating circumstances to the fullest extent and no
mitigating circumstances favouring the accused, still we have to
apply finally the rarest of the rare case test (R-R test). R-R
test depends upon the perception of the society that is “society-
centric” and not “Judge-centric”, that is, whether the society
will approve the awarding of death sentence to certain types of
crimes or not. While applying that test, the court has to look
into variety of factors like society’s abhorrence, extreme
indignation and antipathy to certain types of crimes like sexual
assault and murder of intellectually challenged minor girls,
suffering from physical disability, old and infirm women with
those disabilities, etc. Examples are only illustrative and not
exhaustive. The courts award death sentence since situation
demands so, due to constitutional compulsion, reflected by the
will of the people and not the will of the Judges.”
24. On the question of sentence of death the principle in nutshell has
been stated in Haresh Mohandas Rajput vs. State Of Maharashtra, 2011 (12)
SCC 56, which reads as under:
“The rarest of the rare case” comes when a convict would be
a menace and threat to the harmonious and peaceful coexistence
of the society. The crime may be heinous or brutal but may not
be in the category of “the rarest of the rare case”. There must
be no reason to believe that the accused cannot be reformed or
rehabilitated and that he is likely to continue criminal acts of
violence as would constitute a continuing threat to the society.
The accused may be a menace to the society and would continue to
be so, threatening its peaceful and harmonious coexistence. The
manner in which the crime is committed must be such that it may
result in intense and extreme indignation of the community and
shock the collective conscience of the society. Where an accused
does not act on any spur-of-the-moment provocation and indulges
himself in a deliberately planned crime and [pic]meticulously
executes it, the death sentence may be the most appropriate
punishment for such a ghastly crime. The death sentence may be
warranted where the victims are innocent children and helpless
women. Thus, in case the crime is committed in a most cruel and
inhuman manner which is an extremely brutal, grotesque,
diabolical, revolting and dastardly manner, where his act
affects the entire moral fibre of the society e.g. crime
committed for power or political ambition or indulging in
organised criminal activities, death sentence should be awarded.
(See C. Muniappan v. State of T.N.(2010) 9 SCC 567, Dara Singh
v. Republic of India. (2011) 2 SCC 490, Surendra Koli v. State
of U.P, (2011) 4 SCC 80, Mohd. Mannan, (2011) 5 SCC 317 and
Sudam v. State of Maharashtra, (2011) 7 SCC 125.)
25. In Sandeep vs. State of Uttar Pradesh, (2012) 6 SCC 107, this Court
observed:
“72. It is, therefore, well settled that awarding of life
sentence is the rule, death is an exception. The application of
“the rarest of the rare case” principle is dependent upon and
differs from case to case. However, the principles laid down
earlier and restated in the various decisions of this Court
referred to above can be broadly stated that a deliberately
planned crime, executed meticulously in a diabolic manner,
exhibiting inhuman conduct in a ghastly manner, touching the
conscience of everyone and thereby disturbing the moral fibre of
society would call for imposition of capital punishment in order
to ensure that it acts as a deterrent.”
26. Though we are convinced that the prosecution has proved the guilt of
the accused beyond all reasonable doubt, the accused committed the crime in
a most cruel and inhuman manner. The helpless wife and young children, who
fell victims to the avaricious conduct and lust of the appellant still the
case does not fall within the four corners of the principle of “the rarest
of the rare case”, though no leniency can be shown to the appellant.
27. There is no reason to believe that the accused cannot be reformed or
rehabilitated and that he is likely to continue criminal acts of violence
as would constitute a continuing threat to the society.
28. In Swamy Shraddananda vs. State of Karnataka, (2008) 13 SCC 767, even
while setting aside the sentence of death penalty and awarding life
imprisonment in order to serve the ends of justice, the Court ordered that
the appellant should not be released from the prison till the end of his
life. Likewise, in Ramraj v. State of Chhattisgarh, (2010) 1 SCC 573, this
Court, while setting aside the death sentence, directed that the appellant
therein should serve a minimum period of 20 years including the remissions
and would not be released on completion of 14 years of imprisonment.
29. In Sandeep’s (supra) taking into note the aforesaid decisions and
facts and circumstances of the case, this Court while holding that the
imposition of death sentence to the accused Sandeep was not warranted and
while awarding life imprisonment, the Court held that the accused Sandeep
must serve a minimum of 30 years in jail without remissions before
consideration of his case for premature release.
30. In the present case taking into the facts and circumstances of the
case in hand and reasons stated above, we hold that the imposition of death
sentence to the accused Amar Singh Yadav was not warranted. Accordingly we
commute the sentence to life imprisonment. Further, we hold that the
accused Amar Singh Yadav must serve a minimum of 30 years in jail without
remissions before consideration of his case for premature release. Criminal
Appeals and Reference thus stand disposed of, modifying the sentence of the
accused Amar Singh Yadav as one of the life and he should undergo sentence
for a fixed period of 30 years without any remissions.
31. The criminal appeals stand disposed of with the aforesaid
observations.
………………………………………………………………………J.
(SUDHANSU JYOTI MUKHOPADHAYA)
………………………………………………………………………J.
(DIPAK MISRA)
NEW DELHI,
JULY 01, 2014.
case in hand and reasons stated above, we hold that the imposition of death
sentence to the accused Amar Singh Yadav was not warranted. Accordingly we
commute the sentence to life imprisonment. Further, we hold that the
accused Amar Singh Yadav must serve a minimum of 30 years in jail without
remissions before consideration of his case for premature release.=
the High Court dismissed the appeal and confirmed the
conviction and sentence for the offence punishable under Section 302, 307
and 436 IPC and thereby answered the Reference in confirming the death
sentence.=
Amar Singh had developed illicit relationship with
two other women, namely, Shashi of Kanpur and Rani of Bharthana, causing
differences in the family. Urmila got effected deduction of half salary of
the accused from the Department directly to pull on the expenses of the
family. On account of such deductions of salary and illicit relationship,
the accused became determined to cause the death of his wife, Urmila and
all four children. =
In Swamy Shraddananda vs. State of Karnataka, (2008) 13 SCC 767, even
while setting aside the sentence of death penalty and awarding life
imprisonment in order to serve the ends of justice, the Court ordered that
the appellant should not be released from the prison till the end of his
life. Likewise, in Ramraj v. State of Chhattisgarh, (2010) 1 SCC 573, this
Court, while setting aside the death sentence, directed that the appellant
therein should serve a minimum period of 20 years including the remissions
and would not be released on completion of 14 years of imprisonment.
29. In Sandeep’s (supra) taking into note the aforesaid decisions and
facts and circumstances of the case, this Court while holding that the
imposition of death sentence to the accused Sandeep was not warranted and
while awarding life imprisonment, the Court held that the accused Sandeep
must serve a minimum of 30 years in jail without remissions before
consideration of his case for premature release.
30. In the present case taking into the facts and circumstances of the
case in hand and reasons stated above, we hold that the imposition of death
sentence to the accused Amar Singh Yadav was not warranted. Accordingly we
commute the sentence to life imprisonment. Further, we hold that the
accused Amar Singh Yadav must serve a minimum of 30 years in jail without
remissions before consideration of his case for premature release. Criminal
Appeals and Reference thus stand disposed of, modifying the sentence of the
accused Amar Singh Yadav as one of the life and he should undergo sentence
for a fixed period of 30 years without any remissions.
31. The criminal appeals stand disposed of with the aforesaid
observations.
2014 – July. Part -http://judis.nic.in/supremecourt/filename=41713
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.967-968 OF 2010
AMAR SINGH YADAV … APPELLANTS
VERSUS
STATE OF U.P. … RESPONDENTS
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA,J
These appeals are directed against the common judgment dated 16th
February, 2010 passed by the High Court of Judicature at Allahabad in
Criminal Appeal No.1942 of 2009 and Reference No.5 of 2009. By the impugned
common judgment, the High Court dismissed the appeal and confirmed the
conviction and sentence for the offence punishable under Section 302, 307
and 436 IPC and thereby answered the Reference in confirming the death
sentence.
2. The case of the prosecution in short is that Urmila Devi was married
to accused Amar Singh Yadav, who was posted as Constable in Police Chowki
Gurdev Palace, Kanpur. Three daughters, Mamta, aged 24 years; Pooja aged 22
years; and Sudha 18 years and one son, Pankaj Yadav, aged 13 years were
born from their wedlock. Amar Singh had developed illicit relationship with
two other women, namely, Shashi of Kanpur and Rani of Bharthana, causing
differences in the family. Urmila got effected deduction of half salary of
the accused from the Department directly to pull on the expenses of the
family. On account of such deductions of salary and illicit relationship,
the accused became determined to cause the death of his wife, Urmila and
all four children. Pursuant to that determination, accused along with
companion driving the Maruti Van No.UP 78 C 8262 came to his wife Urmila
and he had taken away his wife and four children in Maruti Van on the
pretention of doing shopping for the marriage of one of the daughters.
Further case of the prosecution is that when the sun had set, at the time
of return the accused got Maruti Van stopped 25-30 metres ahead of
Udharanpur bridge on Jahanganj road and he along with the driver came out
of the Van. They sprinkled the petrol all around the Van after locking the
doors thereof. The accused along with companion then set the Maruti Van
ablaze, with intention of burning all occupants of the Maruti Van to death.
Thereafter, the accused and the driver tried to push the vehicle down in
the pit so that the occupants might not escape but meanwhile Inspector,
Police Station Chhibramau along his companion Police Constables luckily
arrived there and he without caring of his life broke open the doors of the
burning vehicle and took out accused’s wife and all four children from the
burning car. He immediately removed them to the Hospital for treatment. The
complainant having received the information, rushed to Lohia Hospital,
Farrukhabad where sister of the complainant i.e. Urmila and four children
briefed the entire incident to him.
3. Dhruv Narain, Constable Police No.286 (PW-14), registered the First
Information Report at 1.30 a.m. being Crime No.310/2005 under Section 436,
307 IPC. He received direction from Inspector Uma Shankar Yadav on R.T. Set
to depute the additional force. On this, Sub-Inspector Pramod Kumar Katiyar
along with other Constables proceeded to the spot. The next day at about
7.20 a.m., Sub-Inspector Pramod Kumar Katiyar returned to the Police
Station; vide General Diary it is reported that he got admitted all the
injured of the incident in Ram Manohar Lohia Hospital on the direction of
Inspector, Uma Shankar Yadav.
4. After registration of the case, its investigation was entrusted to
Pramod Kumar Katiyar, Sub-Inspector (PW-13), He proceeded to the spot and
prepared site plan Ext.Ka-20. He then proceeded to Lohia Hospital,
Farrukhabad and recorded the statement of Urmila Devi, Ext.Ka-18; Mamta,
Ext.Ka-15; Pooja, Ext.Ka-17; Sudha, Ext.Ka-16 and Pankaj Singh, Ext.Ka-19.
Out of injured persons Urmila Devi, Mamta and Pooja died. The case of the
accused was forwarded for trial under Section 307/302/436 IPC.
5. In support of prosecution case, as many as 15 witnesses were examined
by the prosecution, out of them Sudha(PW-5) and Pankaj Singh(PW-6) are
injured witnesses. In the defence statement under Section 313 Cr.P.C.
accused denied the allegation. Total 17 exhibits including dying
declarations of Urmila Devi, Ext.Ka-18; Mamta, Ext.Ka-15; Pooja, Ext.Ka-17
were produced.
6. On appreciation of the oral and documentary evidence and hearing the
parties, the Sessions Judge, Kanpur held the appellant-accused guilty for
the offences under Section 302, 307 and 436 IPC. The accused was convicted
and sentenced to rigorous imprisonment for life on count of Section 307
IPC. He was further convicted and sentenced to rigorous imprisonment for
seven years on count of Section 436 IPC. The accused was further convicted
and sentenced to death and Rs.10,000/- fine on count of Section 302 IPC and
it was directed that he shall be hanged by the neck till death. All
sentences shall run concurrently. The High Court by the impugned judgment
dated 16th February, 2010 upheld the conviction and death sentence of the
accused. The Reference was answered accordingly.
7. Learned counsel for the appellant while assailing the impugned
judgment submitted as follows:
(i) Deduction of 50% salary of the appellant for paying to his
wife by the Department cannot be a motive to ruin the entire
family.
(ii) Due to extra marital relationship with two other women the
appellant has been implicated.
(iii)If at all there was any motive to kill his wife but there
was no reason to ruin the life of two daughters specially the
elder daughter who was going to be married and for that purpose
articles were purchased.
(iv) The person who informed PW-4 that the vehicle was set on
fire was not produced by the prosecution.
(v) Dying declaration cannot be relied because the Doctor who
examined, who gave the certificate of fitness was not examined.
Statements of PW-5 and PW-6 injured witnesses are contradictory
to the dying declaration.
(vi) That no one has deposed that they saw the appellant
spreading the petrol. Hence, there is doubtful of identity of
such person.
(vii) The driver of the van was not arrested and examined nor
the two women who had an extra marital affair with the appellant
were examined.
(viii) The alleged incident does not fall within the category of
“rarest of the rare case”, and, therefore, death penalty was
uncalled for. This is not a fit case to impose a death penalty.
8. Complainant, Satendra Singh (PW-1), brother of the deceased-Urmila,
has proved the contents of the FIR. He is not the eye-witness of the
incident in question. He deposed that on 29th April, 2005, he received the
information from the Police Station at 9 p.m. that his sister and four
children were put to fire while confined in the Maruti Van. He arrived at
Lohia Hospital at 11 a.m. and found all the persons in burn condition. His
sister recognised him and briefed the entire incident. He reported the same
to the Police. The accused-Amar Singh Yadav and driver straightaway ran
awayfrom the scene. The Police had taken them out of the burn Maruti Van
after breaking open the door.
9. This witness has told the motive of Amar Singh to cause the incident
that his sister obtained the order of half of salary of Amar Singh payable
to him by the order of the Superintendent of Police, Kanpur because Amar
Singh was maintaining the illicit affairs with two women. The marriage of
Mamta was settled on 11th May, 2005 and on pretend of purchase for marriage
of Mamta accused Amar Singh had taken his wife and all the children to the
market.
10. Uma Shankar Yadav, Inspector (PW-4), has testified in the Court that
on 29th April, 2005 at about 8.30 p.m. when he was in search the wanted
accused, he noticed a Maruti Van being blown near Udharanpur bridge. He
immediately arrived there. Two persons standing there who immediately fled
away from the scene. He and accompanying Home Guard, tried to extinguish
the fire by throwing sand on fire and as soon as the fire receded, he broke
open the window panes and had taken all the five occupants out of the
Maruti Van. This witness further informed that all the injured were removed
to Primary Health Centre, Chhibramau for treatment by him. Urmila then had
briefed the matter to him about the accused maintaining illicit
relationship with two women and she also told that in what manner the
accused had pretended to take them away to the market and blew up the
Maruti Van.
11. Sudha (PW-5), aged 18 years deposed on oath that on the day of the
incident, i.e., 29th April, 2005, her father (accused) had taken her mother
Urmila, elder sister Mamta, younger sister Pooja and brother Pankaj in
Maruti Van to Chhibramau for purchasing material for the marriage of sister
Mamta. No purchase was made from Chhibramau. They started returning to the
house; at about 6.30 p.m. The vehicle was being driven at very slow speed.
Her father stopped the vehicle at Chhibramau bus stand where he passed on
time for one hour. In between 7.15 p.m. to 7.30 p.m. all of them driven
towards the village, the Maruti Van was caused to be stopped where a board
containing the information, ”stop there is a school here”. The driver
stopped the vehicle saying that “the car has become hot”. Her father then
told that, “Let him bring the wet cloth so that the engine may be cooled
down”. The Van was again made to drive and ultimately her father and driver
had come out of the Van after locking the windows. Her father had already
sprinkled the petrol in the Van. He torched the Van at once and the Van
started burning. Meanwhile, the Police had arrived there to their rescue
and they were taken out of the vehicle by the Police after breaking open
the window. She also proved the fact of her father having maintained extra
marital relationship with two other women due to which, her mother got
deduction of half salary from the salary of her father.
12. Likewise, Pankaj (PW-6) corroborated the statement of Sudha. He
stated that on 29th April, 2005 his father Amar Singh and the driver took
all of them to Chhibramau to purchase materials. At the time of return
near the river Kali, the car was stopped then petrol was poured on them and
set on fire. They tried to come out but their father and the driver just
watched the fire. He further stated his father was working in Police and
posted at Kalyanpur in Kanpur. He stated that his father and driver set all
of them on fire.
13. Anil Kumar Katiyar (PW-12), Nayab Tehsildar, having received the
instruction from the District Magistrate, recorded the dying declaration of
injured Sudha, Pooja, Mamta, Urmila and Pankaj, out of whom, Urmila and
Pooja died. Mamta, whose dying declaration was recorded by Sub-Divisional
Magistrate(PW-10) also died. The dying declaration of Urmila, which is
Ext.Ka-18, is reproduced in English version as under:
“My husband-Amar Singh is in Police department and is
posted at Police Station-Kalyanpur in Kanpur. My husband has
soleminsed two marriages after me. My children and I had started
getting half of his salaries and by which allowance (we were)
maintaining. Due to all these reasons, my husband was angry with
me and the children. But yesterday on 29.04.2005 by saying that
articles were to be purchased for the marriage of daughter, all
of us were taken to Chhibramau. Deliberately (we were) taken to
Chhibramau and despite of our repeated requests delay was caused
and (we) left late. While coming back the driver and my husband-
Amar Singh stopped the car near the bridge of river Kali by
saying that the car had become hot. After that oil was sprinkled
on all of us and set on fire. When we tried to leave the car,
then again we were pushed into the car. They kept on watching at
us in flames from outside. I do not know the name of the driver,
my husband set me and my children on fire and the driver fully
co-operated in it.”
14. The dying declaration of the deceased-Pooja made to PW-12, which is
Ext.Ka-17, in English version is as under:
“Yesterday on 29.04.05 my father-Amar singh and the driver
took me, my mother and both the sisters and brother with them to
Chhibramau by Maruti by saying this that articles were to be
purchased for the marriage of ‘Didi’ (elder sister) and clothes
etc. were to be got purchased for us. Some articles were
purchased for ‘Didi’ at Chhibramau and much delay was caused
there. Left Chhibramanu in the evening and stopped the car near
the river Kali while saying that the car had become hot and was
to be cooled down. By stopping the Maruti, father-Amar Singh and
the driver put oil upon us and set us on fire and when (we)
tried to come out of the car, then again we were pushed into the
car. Do not know the name of the driver who was with the father.
Mother had started getting half amount of the salary of father
and due to this reason father was angry from all of us. Father
and the driver after setting us on fire ran away. After sometime
the Police got us admitted here.”
15. The verbatim reproduction of dying declaration of deceased-Mamta made
to City Magistrate (PW-10), Raj Pal singh, which is Ext.Ka-15, is as under:
“I, Mamta daughter of Amar Singh, resident of Vida, village-
Mohammadabad, Farrukkhabad, age about 20 years, am in full
senses and state of mind, my father-Amar Singh along with the
driver was taking me, mother-Urmila, Shobha and Pankaj to
Chhibramau as articles(relating to) my marriage were to be
purchased from there. At about 7.30 p.m. on 29.04.05 while
coming back from Chhibramau I, my mother-Urmila, Shobha, Pankaj
and Pooja were closed in Maruti Van near the river Kali, before
closing the car father said that car had become hot up and on
the pretext of sprinkling water, sprinkled the petrol inside the
car and set on fire. The door was closed from outside, my father
set on fire, the driver was helping him. My father was desiring
to kill me and as well as to all those who were closed inside by
setting on fire. My father had soleminsed second marriage. My
mother had got made his salary half and since then he used to
quarrel.”
16. In the initial stage dying declarations of Sudha and Pankaj were also
recorded by Nayab Tahseeldar (PW-12), but as both of them survived so their
statements were only treated as exhibits. The statement of Sudha, which is
Ext.Ka-16, is as under:
“Yesterday on 29.04.05 in the evening at about 7.00 hours, my
father and the driver closed my mother, me and my two sisters
and my brother in the car and set on fire. Before closing the
car firstly the oil was poured on us. Father took all of us on
the pretext of purchasing goods for the marriage of sister-Mamta
and clothes etc. for all of us, from Chhibramau. In chhibramau
only some cream and powder etc. were purchased for sister. After
that left Chhibramau very late. At the time of coming back
stopped the car near the bridge that the car had become hot and
it was to be cooled down and suddenly set us on fire. When we
started burning at that time father and the driver kept on
looking at us from outside and when sister tried to go out of
the car, then father once again pushed me inside the car. My
father is in Police department. He is posted at Kalyanpur in
Kanpur. I was set on fire by my father and the driver. All of us
have been set on fire by these people only.”
17. The statement of Pankaj Singh, which is Ext.Ka-19, is reproduced as
under:
“Yesterday on 29.04.05 my father-Amar Singh and the driver took
me and my three sisters and mother in Maruti to Chhibramau for
purchasing. While coming back, the car was stopped near the
river Kali, oil was poured on us and set on fire. We tried to
come out, then again (we were) pushed inside the car. My father
and driver kept on watching us while standing outside and we
kept on crying and screaming, but that did not put any effect on
them. My father is in Police department and is posted at
Kalyanpur in Kanpur. Father and the driver set all of us on
fire.”
18. The facts brought out in the dying declarations of Urmila, Ext.Ka-18;
Pooja, Ext.Ka-17 and Mamta,Ka-15 has corroborated the statements of injured
eye-witnesses, Sudha (PW-5) and Pankaj Singh (PW-6).There is no room but to
suggest that the accused caused the death of the deceased. The dying
declarations clearly implicate the accused. There are no suspicious
features which affect the credibility of the dying declarations
particularly the deceased being related to the accused. There is no
apparent reason as to why the deceased Urmila(wife), Mamta(daughter), Pooja
(daughter) were connecting their husband/father with the murderer attack.
Mere fact that Doctor in whose presence the dying declaration was recorded
and/or who endorsed it, is not examined, does not affect the evidentiary
value of the dying declaration. The evidence of Uma Shankar Yadav,
Inspector (PW-4) is also corroborated by the evidence of eye-witnesses
Sudha (PW-5) and Pankaj (PW-6). There is no discrepancy in the statements
of the eye-witnesses to disbelieve them. The Trial Court rightly convicted
the appellant for the offence under Section 302, 307 and 436 IPC as
affirmed by the High Court.
19. The next question is whether the death sentence awarded to the
appellant is excessive, disproportionate on the facts and circumstances of
the case, i.e. whether the present case can be termed to be a “rarest of
the rare case".
20. The Guidelines emerged from Bachan Singh vs. State of Punjab, 1980 (2)
SCC 684 were followed in Machhi Singh and others vs. State of Punjab, 1983
(3) SCC 470. In the said case the Court observed:
“38. In this background the guidelines indicated in Bachan
Singh case, 1980 (2) SCC 684 will have to be culled out and
applied to the facts of each individual case where the question
of imposing of death sentence arises. The following propositions
emerge from Bachan Singh case(supra):
“(i) The extreme penalty of death need not be inflicted
except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of
the ‘offender’ also require to be taken into consideration along
with the circumstances of the ‘crime’.
(iii) Life imprisonment is the rule and death sentence is an
exception. In other words death sentence must be imposed only
when life imprisonment appears to be an altogether inadequate
punishment having regard to the relevant circumstances of the
crime, and provided, and only provided, the option to impose
sentence of imprisonment for life cannot be conscientiously
exercised having regard to the nature and circumstances of the
crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so the mitigating
circumstances have to be accorded full weightage and a just
balance has to be struck between the aggravating and the
mitigating circumstances before the option is exercised.
39. In order to apply these guidelines inter alia the
following questions may be asked and answered:
(a) Is there something uncommon about the crime which renders
sentence of imprisonment for life inadequate and calls for a
death sentence?
(b) Are the circumstances of the crime such that there is no
alternative but to impose death sentence even after according
maximum weightage to the mitigating circumstances which speak in
favour of the offender?
40. If upon taking an overall global view of all the
circumstances in the light of the aforesaid proposition and
taking into account the answers to the questions posed
hereinabove, the circumstances of the case are such that death
sentence is warranted, the court would proceed to do so.”
21. In Ronny alias Ronald James Alwaris and others vs. State of
Maharashtra, 1998 (3) SCC 625, this Court noted the law laid-down in
Allauddin Mian & Ors. Vs. State of Bihar, (1989) 3 SCC 5, that unless the
nature of the crime and circumstances of the offender reveal that criminal
is a menace to the society and the sentence of life imprisonment would be
altogether inadequate, the Court should ordinarily pass a lesser punishment
and not punishment of death which should be reserved for exceptional cases
only. Considering the cumulative effect of all the factors, like the
offences committed under the influence of extreme mental or emotional
disturbance, the young age of the accused, the possibility of reform and
rehabilitation, etc. the Court may convert the sentence into life
imprisonment.
22. This Court noticed the aggravating and mitigating circumstances in
Ramnaresh and others vs. State of Chattisgarh, 2012 (4) SCC 257, and held
as follows:
“76. The law enunciated by this Court in its recent
judgments, as already noticed, adds and elaborates the
principles that were stated in Bachan Singh,(1980) 2 SCC 684,
and thereafter, in Machhi Singh,(1983) 3 SCC 470. The aforesaid
judgments, primarily dissect these principles into two different
compartments—one being the “aggravating circumstances” while the
other being the “mitigating circumstances”. The court would
consider the cumulative effect of both these aspects and
normally, it may not be very appropriate for the court to decide
the most significant aspect of sentencing policy with reference
to one of the classes under any of the following heads while
completely ignoring other classes under other heads. To balance
the two is the primary duty of the court. It will be appropriate
for the court to come to a final conclusion upon [pic]balancing
the exercise that would help to administer the criminal justice
system better and provide an effective and meaningful reasoning
by the court as contemplated under Section 354(3) CrPC.
Aggravating circumstances
(1) The offences relating to the commission of heinous crimes
like murder, rape, armed dacoity, kidnapping, etc. by the
accused with a prior record of conviction for capital felony or
offences committed by the person having a substantial history of
serious assaults and criminal convictions.
(2) The offence was committed while the offender was engaged
in the commission of another serious offence.
(3) The offence was committed with the intention to create a
fear psychosis in the public at large and was committed in a
public place by a weapon or device which clearly could be
hazardous to the life of more than one person.
(4) The offence of murder was committed for ransom or like
offences to receive money or monetary benefits.
(5) Hired killings.
(6) The offence was committed outrageously for want only
while involving inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful
custody.
(8) The murder or the offence was committed to prevent a
person lawfully carrying out his duty like arrest or custody in
a place of lawful confinement of himself or another. For
instance, murder is of a person who had acted in lawful
discharge of his duty under Section 43 CrPC.
(9) When the crime is enormous in proportion like making an
attempt of murder of the entire family or members of a
particular community.
(10) When the victim is innocent, helpless or a person relies
upon the trust of relationship and social norms, like a child,
helpless woman, a daughter or a niece staying with a
father/uncle and is inflicted with the crime by such a trusted
person.
(11) When murder is committed for a motive which evidences
total depravity and meanness.
(12) When there is a cold-blooded murder without provocation.
(13) The crime is committed so brutally that it pricks or
shocks not only the judicial conscience but even the conscience
of the society.
Mitigating circumstances
(1) The manner and circumstances in and under which the
offence was committed, for example, extreme mental or emotional
disturbance or extreme provocation in contradistinction to all
these situations in normal course.
(2) The age of the accused is a relevant consideration but
not a determinative factor by itself.
[pic]
(3) The chances of the accused of not indulging in commission
of the crime again and the probability of the accused being
reformed and rehabilitated.
(4) The condition of the accused shows that he was mentally
defective and the defect impaired his capacity to appreciate the
circumstances of his criminal conduct.
(5) The circumstances which, in normal course of life, would
render such a behaviour possible and could have the effect of
giving rise to mental imbalance in that given situation like
persistent harassment or, in fact, leading to such a peak of
human behaviour that, in the facts and circumstances of the
case, the accused believed that he was morally justified in
committing the offence.
(6) Where the court upon proper appreciation of evidence is
of the view that the crime was not committed in a preordained
manner and that the death resulted in the course of commission
of another crime and that there was a possibility of it being
construed as consequences to the commission of the primary
crime.
(7) Where it is absolutely unsafe to rely upon the testimony
of a sole eyewitness though the prosecution has brought home the
guilt of the accused.
While determining the questions relating to sentencing policy, the
Court laid down the Principles at paragraph 77 which reads as follows:
“77. While determining the questions relatable to sentencing
policy, the court has to follow certain principles and those
principles are the loadstar besides the above considerations in
imposition or otherwise of the death sentence.
Principles
(1) The court has to apply the test to determine, if it was
the “rarest of rare” case for imposition of a death sentence.
(2) In the opinion of the court, imposition of any other
punishment i.e. life imprisonment would be completely inadequate
and would not meet the ends of justice.
(3) Life imprisonment is the rule and death sentence is an
exception.
(4) The option to impose sentence of imprisonment for life
cannot be cautiously exercised having regard to the nature and
circumstances of the crime and all relevant considerations.
(5) The method (planned or otherwise) and the manner (extent
of brutality and inhumanity, etc.) in which the crime was
committed and the circumstances leading to commission of such
heinous crime.”
23. In Shankar Kisanrao Khade vs. State of Maharashtra, 2013 (5) SCC 546,
dealing with a case of death sentence, this Court observed:
“52. Aggravating circumstances as pointed out above, of
course, are not exhaustive so also the mitigating circumstances.
In my considered view, the tests that we have to apply, while
awarding death sentence are “crime test”, “criminal test” and
the “R-R test” and not the “balancing test”. To award death
sentence, the “crime test” has to be fully satisfied, that is,
100% and “criminal test” 0%, that is, no mitigating circumstance
favouring the accused. If there is any circumstance favouring
the accused, like lack of intention to commit the crime,
possibility of reformation, young age of the accused, not a
menace to the society, no previous track record, etc. the
“criminal test” may favour the accused to avoid the capital
punishment. Even if both the tests are satisfied, that is, the
aggravating circumstances to the fullest extent and no
mitigating circumstances favouring the accused, still we have to
apply finally the rarest of the rare case test (R-R test). R-R
test depends upon the perception of the society that is “society-
centric” and not “Judge-centric”, that is, whether the society
will approve the awarding of death sentence to certain types of
crimes or not. While applying that test, the court has to look
into variety of factors like society’s abhorrence, extreme
indignation and antipathy to certain types of crimes like sexual
assault and murder of intellectually challenged minor girls,
suffering from physical disability, old and infirm women with
those disabilities, etc. Examples are only illustrative and not
exhaustive. The courts award death sentence since situation
demands so, due to constitutional compulsion, reflected by the
will of the people and not the will of the Judges.”
24. On the question of sentence of death the principle in nutshell has
been stated in Haresh Mohandas Rajput vs. State Of Maharashtra, 2011 (12)
SCC 56, which reads as under:
“The rarest of the rare case” comes when a convict would be
a menace and threat to the harmonious and peaceful coexistence
of the society. The crime may be heinous or brutal but may not
be in the category of “the rarest of the rare case”. There must
be no reason to believe that the accused cannot be reformed or
rehabilitated and that he is likely to continue criminal acts of
violence as would constitute a continuing threat to the society.
The accused may be a menace to the society and would continue to
be so, threatening its peaceful and harmonious coexistence. The
manner in which the crime is committed must be such that it may
result in intense and extreme indignation of the community and
shock the collective conscience of the society. Where an accused
does not act on any spur-of-the-moment provocation and indulges
himself in a deliberately planned crime and [pic]meticulously
executes it, the death sentence may be the most appropriate
punishment for such a ghastly crime. The death sentence may be
warranted where the victims are innocent children and helpless
women. Thus, in case the crime is committed in a most cruel and
inhuman manner which is an extremely brutal, grotesque,
diabolical, revolting and dastardly manner, where his act
affects the entire moral fibre of the society e.g. crime
committed for power or political ambition or indulging in
organised criminal activities, death sentence should be awarded.
(See C. Muniappan v. State of T.N.(2010) 9 SCC 567, Dara Singh
v. Republic of India. (2011) 2 SCC 490, Surendra Koli v. State
of U.P, (2011) 4 SCC 80, Mohd. Mannan, (2011) 5 SCC 317 and
Sudam v. State of Maharashtra, (2011) 7 SCC 125.)
25. In Sandeep vs. State of Uttar Pradesh, (2012) 6 SCC 107, this Court
observed:
“72. It is, therefore, well settled that awarding of life
sentence is the rule, death is an exception. The application of
“the rarest of the rare case” principle is dependent upon and
differs from case to case. However, the principles laid down
earlier and restated in the various decisions of this Court
referred to above can be broadly stated that a deliberately
planned crime, executed meticulously in a diabolic manner,
exhibiting inhuman conduct in a ghastly manner, touching the
conscience of everyone and thereby disturbing the moral fibre of
society would call for imposition of capital punishment in order
to ensure that it acts as a deterrent.”
26. Though we are convinced that the prosecution has proved the guilt of
the accused beyond all reasonable doubt, the accused committed the crime in
a most cruel and inhuman manner. The helpless wife and young children, who
fell victims to the avaricious conduct and lust of the appellant still the
case does not fall within the four corners of the principle of “the rarest
of the rare case”, though no leniency can be shown to the appellant.
27. There is no reason to believe that the accused cannot be reformed or
rehabilitated and that he is likely to continue criminal acts of violence
as would constitute a continuing threat to the society.
28. In Swamy Shraddananda vs. State of Karnataka, (2008) 13 SCC 767, even
while setting aside the sentence of death penalty and awarding life
imprisonment in order to serve the ends of justice, the Court ordered that
the appellant should not be released from the prison till the end of his
life. Likewise, in Ramraj v. State of Chhattisgarh, (2010) 1 SCC 573, this
Court, while setting aside the death sentence, directed that the appellant
therein should serve a minimum period of 20 years including the remissions
and would not be released on completion of 14 years of imprisonment.
29. In Sandeep’s (supra) taking into note the aforesaid decisions and
facts and circumstances of the case, this Court while holding that the
imposition of death sentence to the accused Sandeep was not warranted and
while awarding life imprisonment, the Court held that the accused Sandeep
must serve a minimum of 30 years in jail without remissions before
consideration of his case for premature release.
30. In the present case taking into the facts and circumstances of the
case in hand and reasons stated above, we hold that the imposition of death
sentence to the accused Amar Singh Yadav was not warranted. Accordingly we
commute the sentence to life imprisonment. Further, we hold that the
accused Amar Singh Yadav must serve a minimum of 30 years in jail without
remissions before consideration of his case for premature release. Criminal
Appeals and Reference thus stand disposed of, modifying the sentence of the
accused Amar Singh Yadav as one of the life and he should undergo sentence
for a fixed period of 30 years without any remissions.
31. The criminal appeals stand disposed of with the aforesaid
observations.
………………………………………………………………………J.
(SUDHANSU JYOTI MUKHOPADHAYA)
………………………………………………………………………J.
(DIPAK MISRA)
NEW DELHI,
JULY 01, 2014.
