Death sentence commuted to life imprisonment - as it is not a rarest of rare case =
Recently, this Court in Shankar Kisanrao Khade vs. State of
Maharashtra, 2013 (5) SCC 546, dealing with a case of death sentence,
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.”
29. In the present case the appellant is an educated person, he was about
26 years old at the time of committing the offence. The accused was a tutor
in the family of the deceased-Noorjahan. He was in acquaintance with the
deceased as well as Zeenat Parveen (PW-3) and Razia Khatoon (PW-4). There
is nothing specific to suggest the motive for committing the crime except
the articles and cash taken away by the accused. It is not the case of the
prosecution that the appellant cannot be reformed or that the accused is a
social menace. Apart from the incident in question there is no criminal
antecedent of the appellant. It is true that the accused has committed a
heinous crime, but it cannot be held with certainty that this case falls in
the “rarest of the rare category”. On appreciation of evidence on record
and keeping in mind the facts and circumstances of the case, we are of the
view that sentence of death penalty would be extensive and unduly harsh.
30. Accordingly, we commute the death sentence of appellant to life
imprisonment. The conviction and rest part of the sentence are affirmed.
Appeals are partly allowed.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.410-411 OF 2012
SANTOSH KUMAR SINGH … APPELLANT
VERSUS
STATE OF MADHYA PRADESH … RESPONDENT
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
These appeals are directed against the common impugned judgment dated
24th March, 2011 passed by the High Court of Madhya Pradesh, Principal
Seat at Jabalpur, by which High Court upheld the judgment of conviction and
sentence for the offences u/s 302, 307, 394, 397 and 450 IPC, as follows:
|Section |Sentence imposed |
|For offence under Section 302 IPC |Sentenced to death. |
|(on two counts); | |
|For offence under Section 307 IPC |Sentence for life on each count |
|(on two counts); |with fine of Rs.10,000/- each on |
| |failure of payment RI for two years|
| |each. |
|For offence under Section 394 read |RI for ten years on each count with|
|with Section 397 (on four counts); |fine of Rs.5,000/- each on failure |
| |of payment further RI for one year |
| |each. |
|For offence under Section 450 IPC. |RI for ten years with fine of |
| |Rs.5,000/-. On failure of payment, |
| |further RI for one year. |
2. The learned counsel for the appellant assailed the conviction, inter
alia, on the following grounds:
(a) The trial was not fair as the appellant was not given an
opportunity to defend by the counsel of his choice.
(b) The Trial Court gravely erred in placing implicit reliance
on the statement of Razia Khatoon (PW-4) and Zeenat Parveen (PW-
3) and on the evidence of recovery of the ornaments and other
articles from the possession of the appellant.
(c) The death sentence awarded by the Trial Court as confirmed
by the High Court is not justified, as no case of rarest of the
rare is made out.
3. The case of the prosecution is that the accused-Santosh Kumar Singh
was known to the family of Gulam Mohd. including his wife, Noorjahan, son
Javed Akhtar, and daughters viz. Rozi @ Razia and Zeenat Parveen. On 7th
May, 2010, accused came to their house in Sector No.12, Quarter No.B-664,
N.C.L. Colony, Singrauli at about 2 p.m. He had a chat with Noorjahan Begum
(deceased) for about 30 minutes. In the same room besides her Rozi @ Razia
Khatoon(PW-4) and Zeenat Parveen (PW-3) were also present. Javed Akhtar
(deceased), son of Noorjahan Begum was sleeping in the bedroom. After
accused left, Noorjahan Begum (deceased) started offering Namaz, Rozi @
Razia went to bathroom to take bath and Zeenat Parveen was sitting in the
outside room. After sometime, accused came back and knocked the door;
Zeenat Parveen opened the door and the accused came inside. At that time
Rozi @ Razia came out of the bathroom and saw accused talking to Zeenat in
the outside room, at that moment, the accused suddenly pulled out an iron
hammer from his T-shirt and hit on the head of Zeenat Parween two-three
times with hammer. Zeenat Parveen screamed and became unconscious. The
accused, thereafter, with intention to kill Noorjahan Begum and Javed
Akhtar also hit them with hammer on their heads, because of which both fell
down and became unconscious. After that accused hit Rozi @ Razia by the
hammer on her head with an intention to kill her resultantly Razia’s head
got fractured. Thereafter, the accused opened the almirah, suitcases and
boxes and looted two gold chains, one pair of tops, one pair of bali, one
pair of jhala, three rings, one nose pin and four pairs of silver anklets,
artificial jewellery etc. and Rs. 23,000/- cash of Noorjahan Begum. He
also took out four brass bangles from the hands of Noorjahan Begum. As a
result of assault Noorjahan Begum died on the spot. On hearing shrieks of
Rozi @ Razia, Ramesh Satnami (PW-1), Ramawadh Pal (PW-5) and other people
of the colony came. At the time of incident, Gulam Mohd. (PW-2) was on duty
and on receiving the news he came to the place of incident and took Rozi @
Razia, Zeenat Parveen and Javed Akhtar to Nehru Hospital.
4. On the basis of the report, Ext.P-10, of Rozi @ Razia Khatoon(PW-4),
a case Crime No.0/10 was registered under Section 302, 307, 450, 394 & 397
IPC at the Police Station Vindhya Nagar. After receiving the news of the
death of Noorjahan and Javed Akhtar, Shiv Kumar Dubey (PW-13) recorded the
marg intimation of Ext.P-24 & 25 in Police Chauki Jayant, P.S. Vindhya
Nagar and the marg intimation-Ext.P/10 was sent to the concerned Police
Station, on the basis of which Crime No.Ka-0-304/10 was registered at P.S.
Baidhan and investigation was started.
5. Sub-Inspector, J.S. Paraste (PW-12), on the same day, went at the
spot and prepared the inquest memo of the body of Noorjahan Begum
(Ext.P/12).The dead body of Noorjahan Begum was sent for postmortem
examination. After conducting inquest proceedings in respect of the dead
body of Javed Akhtar, the same was also sent for postmortem examination.
Dr. Vinod Sharma(PW.16) examined the injuries of Razia Khatoon and Zeenat
Parveen and found injuries on their heads. The injuries, grievous in
nature, were dangerous to life.
6. Dr. V.N. Satnami (PW-10) conducted autopsy of the body of Noorjahan
Begum. He found three injuries on her skull, skull bones were fractured. He
submitted his postmortem report-Ext.P/19. In his opinion, death of the
deceased was homicidal in nature. Dr. V.N. Satnami (PW-10) also conducted
autopsy of body of Javed Akhtar and found two injuries on his head. There
was depressed fracture of skull bone underneath the injuries. In his
opinion, death of the deceased was homicidal in nature. Postmortem report
of Javed Akhtar is Ext.P/20.
7. Anil Upadhyay (PW-11) was the Investigation Officer, who on the same
night apprehended the accused from Khariya Chowk and recovered Rs.23,020/-
from the pocket of his pants. On the information given by the appellant
under Section 27 of the Indian Evidence Act, he recovered stolen articles,
iron hammer and blood stained clothes from the house of the accused
situated in N.C.L. Colony. The recovered articles were identified by Gulam
Mohd (PW.2) and Razia Khatoon (PW-4).
8. After due investigation, the chargesheet was filed and the case was
committed for trial. The appellant denied the guilt and pleaded false
implication but he did not adduce any evidence in his defence.
9. Prosecution examined altogether 16 witnesses and produced a number of
documentary evidence to prove their case. The Trial court on the
appreciation of the evidence held the accused guilty and convicted and
sentenced him for the offence as mentioned above, which was affirmed by the
High Court.
10. Dr. V.N. Satnami (PW-10), who performed the postmortem examination
of the body of Noorjahan Begum found the following injuries on her body:
“(1)Reddish contusion 5 cm x 4 cm present on right side of
forehead. Red blood clot was deposited under the skin.
(2)Lacerated wound 5 cm x 3 cm x bone deep on middle of the
forehead posteriorly with depressed multiple fractures of
underlying bone.
(3) Lacerated wound 4 cm x 3 cm x bone deep on left occipito
parietal region of head with depressed multiple fractures of
underlying bones.
In his opinion, death of deceased Noorjahan had occurred as a
result of coma due to head injury. Death was homicidal in
nature. The postmortem examination report (P/19) was written and
signed by him.”
On the same day, Dr. Satnami (PW-10) performed postmortem examination
of the body of deceased Javed Akhtar and found the following injuries:
“(1) Lacerated wound on left parietal region of head 2 cm x 1 cm
x bone deep with peripheral contusions in size of 6 cm x 5 cm.
subcutaneous reddish blood clot with multiple depressed
fractures of underlying bone.
(2) Reddish contusion on occipital region of head 5 cm x 4 cm in
size with subcutaneous reddish blood clot with depressed
fracture of underlying bone.
In his opinion, death of Javed Akhtar had occurred as a result
of coma due to injury. Death was homicidal in nature.”
11. From the inquest memorandums (Ext.P/6 and P/12) and the evidence of
Sub-Inspector, J.S. Paraste (PW-12) and constable Raj Bahadur Pandey (PW-
15), who conducted inquest, it was established that Noorjahan and Javed
Akhtar died of homicidal injuries found on their bodies.
12. Anil Upadhyay (PW-11), Investigation Officer arrested the accused
from Khariya Chowk, Main Road, P.S. Shakti Nagar in the presence of
witnesses Mohd.Sadiq (PW-6) and Mohd. Yunus (PW-7) and seized money from
him and prepared seizure memo-Ext.P-15. After arrest the accused was
brought to the Police Station-Jayant and was interrogated in front of the
witnesses. During interrogation accused gave information regarding
jewellery and the hammer which was used in committing crime; the clothes,
hammer and jewellery were seized from the house of the accused vide
memorandum-Ext.P-13, written by Anil Upadhyay (PW-11). Anil Upadhyay
stated that he went to the house of accused and seized the jewellery
article from articles-A1 to A 24; seizure memo-Ext.P-14 was prepared. He
had also stated that blood stained clothes and iron hammer were seized in
the presence of witnesses vide seizure memo-Ext.P-16.
13. Mohd. Sadiq (PW.6) and Mohd. Yunus (PW-7) are the independent
witnesses of the memorandum of seizure. In their statement they deposed
that the Police arrested the accused at Khariya Chowk in their presence and
seized about Rs. 23,000/-from him and the accused was brought to the Police
Station-Jayant for inquiry. At the Police Station the accused disclosed
about the jewellery, hammer and clothes, on the basis of which jewellery,
hammer and clothes were seized. Both the witnesses thereby have
corroborated the statement of Anil Upadhyay(PW-11). During the cross-
examination both the witnesses, PW-6 and PW-7 admitted that they visited
the house of Gulam Mohd. There is no infirmity or contradiction in the
statements of the two witnesses.
14. Mohd. Ayaz Khan (PW-9) stated that on 8th July, 2010 at the request
of the Police he conducted identification of the jewellery at stadium
Baidhan and prior to the identification Police had handed over other
jewellery in a sealed packet. He mixed it and then conducted the
identification and during the identification Gulam Mohd. and Razia had
identified the original jewellery. After identification he had handed over
the jewellery in a packet to the Police who were standing outside the
stadium.
15. Zeenat Parween(PW-3) and Razia Khatoon (PW-4), daughters of deceased
Noorjahan and sisters of deceased Javed Akhtar are the injured
eyewitnesses; both of them received serious injuries at the incident. Both
the witness PW-3 and PW-4 clearly stated that sometime before the incident,
the accused had come to their house and he being a prior acquaintance, the
accused had taken refreshment sitting with their mother and also was
talking with her. From the statements of both the witnesses the facts of
the accused coming to their house before the incident, taking refreshment
with deceased Noorjahan and talking with her are proved, which is also
corroborated from the FIR-Ext.P-10. Both these witnesses have also stated
that in the past the accused used to come for tuitions and their mother
used to treat the accused like her son and the photograph of the accused
was also hanging in their house. From the aforesaid evidence, it is clear
that the PW-3 and PW-4 were in a position to identify the accused, the
accused was well acquainted with both PW-3 and PW-4 since long. The
prosecution proved beyond reasonable doubt that even prior to the incident
the accused was known to the deceased and the injured witnesses PW-3 and PW-
4 and on the date of incident also, the accused had come to their house and
had taken refreshments and had talks.
16. Zeenat Parveen (PW-3) and Razia Khatoon (PW-4) in their statements
clearly stated that initially the accused left their house and after
sometime the accused had come again to their house. On opening the door he
had hit the hammer on the head of Javed Akhtar, who had come out after
hearing screams of Zeenat Parveen and then after entering into the bedroom
he hit deceased Noorjahan on her head. From the statement of Razia Khatoon
(PW-4), it is also clear that the accused after entering the store-room had
hit on her head and then the accused had taken out the money and jewellery
from the almirah, suitcase, box and attaché, etc. In paragraph 7 Zeenat
Parveen (PW-3), has also stated that she had seen the accused hit Javed
Akhtar on his head but she could not see as to who hit Razia and her
mother. Such statement cannot be stated to be contradiction and does not
adversely affect the case of the prosecution in view of the deposition made
by Razia Khatoon(PW-4).
17. Similarly, from the statement of Razia Khatoon (PW-4), we find that
the accused after hitting Zeenat Parveen, Javed Akhtar and Noorjahan took
away jewellery, cash amount and the bangles of Noorjahan and then he ran
away after bolting the door from outside.
18. PW-4 further deposed that after the accused run away by bolting the
door from outside she went into the balcony and stop Satnami (PW-1), who at
that time had taken out his vehicle and was going somewhere. Then, the door
was got open. Statements of Razia Khatoon (PW-4) about shouting from the
balcony stopping Satnami (PW-1) and then opening of the door by Satnami are
also proved by the statement of Ramesh Satnami (PW-1), who made similar
statement.
19. In view of the statements made by the injured witnesses Zeenat
Parveen (PW-3) and Razia Khatoon (PW-4) as corroborated by the postmortem
report, seizure of jewellery, hammer, blood stained clothes (Ex.P-13)and
statement of Anil Upadhyay (PW-11), as corroborated by Sadiq (PW-6) and
Yunus (PW-7), the Trial Court rightly held the accused guilty for the
offences u/s 302, 307, 394 r/w 397 and 450 IPC.
20. First ground taken by the learned counsel for the appellant with
respect to denial of opportunity to the accused to be defended by a counsel
of his choice is incorrect as from the record we find that proper
opportunity was given to the accused.
21. The order sheets of the Trial Court dated 25th September, 2010 shows
that the appellant made an application that appellant wanted to get the
witnesses cross-examined by senior Advocate, Mr. Rajendra Singh Chauhan,
therefore, he requested to defer the cross-examination of the witnesses.
The Trial court rejected the application. On 27th September, 2010, counsel
of the accused, Mr. Amrendra Singh, who was defending the accused, refused
to defend him. The Trial Court then appointed one Mr. G.P. Dwivedi,
Advocate, as defence counsel on State expenses.
22. On perusal of records it transpires that Shri Amrendra Singh,
Advocate had filed his Vakalatnama for representing the appellant. On 25th
September, 2010, when the case was fixed for evidence though he was
competent to cross-examine the witnesses but he moved the application to
defer the cross-examination of the witnesses on the ground that the accused
wanted to engage senior Advocate, Mr. Rajendra Singh Chauhan. However,
neither Rajendra Singh Chauhan was present nor any Vakalatnama was filed on
his behalf. On that day, two witnesses, namely Ramesh Satnami (PW-1) and
Gulam Mohd. (PW-2) were examined and Mr. Amrendra Singh, Advocate had cross-
examined those witnesses. None of those witnesses were eyewitnesses; in
fact one of them, Ramesh Satnami (PW-1) was declared hostile. On 27th
September, 2010, Mr. Amrendra Singh refused to appear on behalf of the
appellant, when the appellant on asking expressed his inability to appoint
any counsel. Since there was none to represent the accused, the Trial Court
appointed Mr. G.P. Dwivedi, Advocate, to pursue the appeal. The appellant
has failed to show that Mr. G.P. Dwivedi was not competent or was incapable
of handling the case. On the contrary from the cross-examination of the
witnesses made by Mr. G.P. Dwivedi we find that he was competent to deal
with the case. Even on the next date neither Mr. Rajendra Singh Chauhan,
Advocate appeared nor he filed his Vakalatnama.
23. The next question is whether death sentence awarded to the appellant
is excessive, disproportionate on the facts and circumstance of the case,
i.e. whether the present case can be termed to be a rarest of the rare
case.
24. Guidelines emerged from Bachan Singh vs. State of Punjab, 1980 (2)
SCC 684 were noticed by this Court 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.”
25. In Ronny alias Ronald James Alwaris and others vs. State of
Maharashtra, 1998 (3) SCC 625, this Court held:
“45. These principles have been applied in various judgments
of this Court thereafter and it is unnecessary to multiply the
cases here. Whether the case is one of the rarest of the rare
cases is a question which has to be determined on the facts of
each case. Suffice it to mention that the choice of the death
sentence has to be made only in the rarest of the rare cases and
that where culpability of the accused has assumed depravity or
where the accused is found to be an ardent criminal and menace
to the society and; where the crime is committed in an organised
manner and is gruesome, cold-blooded, heinous and atrocious;
where innocent and unarmed persons are attacked and murdered
without any provocation, the case would present special reason
for purposes of sub-section (3) of Section 354 of the Criminal
Procedure Code.”
In Rony alias Ronald James Alwaris (supra) this Court noted the law
laid-down by this Court 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 case 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.
26. In State of Maharashtra vs. Goraksha Ambaji Adsul, 2011 (7) SCC 437,
this Court made the following observation:
“30. The principles governing the sentencing policy in our
criminal jurisprudence have more or less been consistent, right
from the pronouncement of the Constitution Bench judgment of
this Court in Bachan Singh v. State of Punjab,(2010) 8 SCC 775.
Awarding punishment is certainly an onerous function in the
dispensation of criminal justice. The court is expected to keep
in mind the facts and circumstances of a case, the principles of
law governing award of sentence, the legislative intent of
special or general statute raised in [pic]the case and the
impact of awarding punishment. These are the nuances which need
to be examined by the court with discernment and in depth.
31. The legislative intent behind enacting Section 354(3)
CrPC clearly demonstrates the concern of the legislature for
taking away a human life and imposing death penalty upon the
accused. Concern for the dignity of the human life postulates
resistance to taking a life through law’s instrumentalities and
that ought not to be done, save in the rarest of rare cases,
unless the alternative option is unquestionably foreclosed. In
exercise of its discretion, the court would also take into
consideration the mitigating circumstances and their resultant
effects.
32. The language of Section 354(3) demonstrates the
legislative concern and the conditions which need to be
satisfied prior to imposition of death penalty. The words, “in
the case of sentence of death, the special reasons for such
sentence” unambiguously demonstrate the command of the
legislature that such reasons have to be recorded for imposing
the punishment of death sentence. This is how the concept of the
rarest of rare cases has emerged in law. Viewed from that angle,
both the legislative provisions and judicial pronouncements are
at ad idem in law. The death penalty should be imposed in the
rarest of rare cases and that too for special reasons to be
recorded. To put it simply, a death sentence is not a rule but
an exception. Even the exception must satisfy the prerequisites
contemplated under Section 354(3) CrPC in light of the dictum of
the Court in Bachan Singh(supra).
33. The Constitution Bench judgment of this Court in Bachan
Singh (supra) has been summarised in para 38 in Machhi Singh v.
State of Punjab, (1998) 1 SCC 149, and the following guidelines
have been stated while considering the possibility of awarding
sentence of death: (Machhi Singh case(supra), SCC p. 489)
“(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 requires to be taken into consideration
along with the circumstances of the ‘crime’.
(iii) Life imprisonment is the rule and death sentence is an
exception. … 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.”
(emphasis supplied)
[pic]
34. The judgment in Bachan Sing(supra), did not only state
the above guidelines in some elaboration, but also specified the
mitigating circumstances which could be considered by the Court
while determining such serious issues and they are as follows:
(SCC p. 750, para 206)
“206. … ‘Mitigating circumstances.—In the exercise of its
discretion in the above cases, the court shall take into account
the following circumstances:
(1) That the offence was committed under the influence of
extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old,
he shall not be sentenced to death.
(3) The probability that the accused would not commit
criminal acts of violence as would constitute a continuing
threat to society.
(4) The probability that the accused can be reformed and
rehabilitated.
The State shall by evidence prove that the accused does not
satisfy Conditions (3) and (4) above.
(5) That in the facts and circumstances of the case the
accused believed that he was morally justified in committing the
offence.
(6) That the accused acted under the duress or domination of
another person.
(7) That the condition of the accused showed that he was
mentally defective and that the said defect impaired his
capacity to appreciate the criminality of his conduct.’”
35. Now, we may examine certain illustrations arising from
the judicial pronouncements of this Court.
36. In D.K. Basu v. State of W.B.,(2002) 1 SCC 351, this
Court took the view that custodial torture and consequential
death in custody was an offence which fell in the category of
the rarest of rare cases. While specifying the reasons in
support of such decision, the Court awarded death penalty in
that case.
37. In Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra, (1972) 2 SCC 640, this Court also spelt out in
paras 56 to 58 that nature, motive, impact of a crime,
culpability, quality of evidence, socio-economic circumstances,
impossibility of rehabilitation are the factors which the court
may take into consideration while dealing with such cases. In
that case the friends of the victim had called him to see a
movie and after seeing the movie, a ransom call was made, but
with the fear of being caught, they murdered the victim. The
Court felt that there was no evidence to show that the criminals
were [pic]incapable of reforming themselves, that it was not a
rarest of the rare case, and therefore, declined to award death
sentence to the accused.
38. Interpersonal circumstances prevailing between the
deceased and the accused was also held to be a relevant
consideration in Vashram Narshibhai Rajpara v. State of Gujarat,
(1996) 8 SCC 167, where constant nagging by family was treated
as the mitigating factor, if the accused is mentally unbalanced
and as a result murders the family members. Similarly, the
intensity of bitterness which prevailed and the escalation of
simmering thoughts into a thirst for revenge and retaliation
were also considered to be a relevant factor by this Court in
different cases.
39. This Court in Satishbhushan Bariya (supra) also
considered various doctrines, principles and factors which would
be considered by the Courts while dealing with such cases. The
Court discussed in some elaboration the applicability of the
doctrine of rehabilitation and the doctrine of prudence. While
considering the application of the doctrine of rehabilitation
and the extent of weightage to be given to the mitigating
circumstances, it noticed the nature of the evidence and the
background of the accused. The conviction in that case was
entirely based upon the statement of the approver and was a case
purely of circumstantial evidence. Thus, applying the doctrine
of prudence, it noticed the fact that the accused were
unemployed, young men in search of job and they were not
criminals. In execution of a plan proposed by the appellant and
accepted by others, they kidnapped a friend of theirs. The
kidnapping was done with the motive of procuring ransom from his
family but later they murdered him because of the fear of
getting caught, and later cut the body into pieces and disposed
it off at different places. One of the accused had turned
approver and as already noticed, the conviction was primarily
based upon the statement of the approver.”
“41. The above principle, as supported by case illustrations,
clearly depicts the various precepts which would govern the
exercise of judicial discretion by the courts within the
parameters spelt out under Section 354(3) CrPC. Awarding of
death sentence amounts to taking away the life of an individual,
which is the most valuable right available, whether viewed from
the constitutional point of view or from the human rights point
of view. The condition of providing special reasons for awarding
death penalty is not to be construed linguistically but it is to
satisfy the basic features of a reasoning supporting and making
award of death penalty unquestionable. The circumstances and the
manner of committing the crime should be such that it pricks the
judicial conscience of the court to the extent that the only and
inevitable conclusion should be awarding of death penalty.”
27. This Court in Ramnaresh and others vs. State of Chattisgarh, 2012 (4)
SCC 257, noticed the aggravating and mitigating circumstances with respect
to a crime 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.”
28. Recently, this Court in Shankar Kisanrao Khade vs. State of
Maharashtra, 2013 (5) SCC 546, dealing with a case of death sentence,
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.”
29. In the present case the appellant is an educated person, he was about
26 years old at the time of committing the offence. The accused was a tutor
in the family of the deceased-Noorjahan. He was in acquaintance with the
deceased as well as Zeenat Parveen (PW-3) and Razia Khatoon (PW-4). There
is nothing specific to suggest the motive for committing the crime except
the articles and cash taken away by the accused. It is not the case of the
prosecution that the appellant cannot be reformed or that the accused is a
social menace. Apart from the incident in question there is no criminal
antecedent of the appellant. It is true that the accused has committed a
heinous crime, but it cannot be held with certainty that this case falls in
the “rarest of the rare category”. On appreciation of evidence on record
and keeping in mind the facts and circumstances of the case, we are of the
view that sentence of death penalty would be extensive and unduly harsh.
30. Accordingly, we commute the death sentence of appellant to life
imprisonment. The conviction and rest part of the sentence are affirmed.
Appeals are partly allowed.
………………………………………………J.
(H.L. DATTU)
……….……………………………………J.
(SUDHANSU JYOTI MUKHOPADHAYA)
………………………………………………J.
(M.Y. EQBAL)
NEW DELHI,
JULY 3, 2014.
Recently, this Court in Shankar Kisanrao Khade vs. State of
Maharashtra, 2013 (5) SCC 546, dealing with a case of death sentence,
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.”
29. In the present case the appellant is an educated person, he was about
26 years old at the time of committing the offence. The accused was a tutor
in the family of the deceased-Noorjahan. He was in acquaintance with the
deceased as well as Zeenat Parveen (PW-3) and Razia Khatoon (PW-4). There
is nothing specific to suggest the motive for committing the crime except
the articles and cash taken away by the accused. It is not the case of the
prosecution that the appellant cannot be reformed or that the accused is a
social menace. Apart from the incident in question there is no criminal
antecedent of the appellant. It is true that the accused has committed a
heinous crime, but it cannot be held with certainty that this case falls in
the “rarest of the rare category”. On appreciation of evidence on record
and keeping in mind the facts and circumstances of the case, we are of the
view that sentence of death penalty would be extensive and unduly harsh.
30. Accordingly, we commute the death sentence of appellant to life
imprisonment. The conviction and rest part of the sentence are affirmed.
Appeals are partly allowed.
2014 – July. Part – http://judis.nic.in/supremecourt/filename=41740
REPORTABLEIN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.410-411 OF 2012
SANTOSH KUMAR SINGH … APPELLANT
VERSUS
STATE OF MADHYA PRADESH … RESPONDENT
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
These appeals are directed against the common impugned judgment dated
24th March, 2011 passed by the High Court of Madhya Pradesh, Principal
Seat at Jabalpur, by which High Court upheld the judgment of conviction and
sentence for the offences u/s 302, 307, 394, 397 and 450 IPC, as follows:
|Section |Sentence imposed |
|For offence under Section 302 IPC |Sentenced to death. |
|(on two counts); | |
|For offence under Section 307 IPC |Sentence for life on each count |
|(on two counts); |with fine of Rs.10,000/- each on |
| |failure of payment RI for two years|
| |each. |
|For offence under Section 394 read |RI for ten years on each count with|
|with Section 397 (on four counts); |fine of Rs.5,000/- each on failure |
| |of payment further RI for one year |
| |each. |
|For offence under Section 450 IPC. |RI for ten years with fine of |
| |Rs.5,000/-. On failure of payment, |
| |further RI for one year. |
2. The learned counsel for the appellant assailed the conviction, inter
alia, on the following grounds:
(a) The trial was not fair as the appellant was not given an
opportunity to defend by the counsel of his choice.
(b) The Trial Court gravely erred in placing implicit reliance
on the statement of Razia Khatoon (PW-4) and Zeenat Parveen (PW-
3) and on the evidence of recovery of the ornaments and other
articles from the possession of the appellant.
(c) The death sentence awarded by the Trial Court as confirmed
by the High Court is not justified, as no case of rarest of the
rare is made out.
3. The case of the prosecution is that the accused-Santosh Kumar Singh
was known to the family of Gulam Mohd. including his wife, Noorjahan, son
Javed Akhtar, and daughters viz. Rozi @ Razia and Zeenat Parveen. On 7th
May, 2010, accused came to their house in Sector No.12, Quarter No.B-664,
N.C.L. Colony, Singrauli at about 2 p.m. He had a chat with Noorjahan Begum
(deceased) for about 30 minutes. In the same room besides her Rozi @ Razia
Khatoon(PW-4) and Zeenat Parveen (PW-3) were also present. Javed Akhtar
(deceased), son of Noorjahan Begum was sleeping in the bedroom. After
accused left, Noorjahan Begum (deceased) started offering Namaz, Rozi @
Razia went to bathroom to take bath and Zeenat Parveen was sitting in the
outside room. After sometime, accused came back and knocked the door;
Zeenat Parveen opened the door and the accused came inside. At that time
Rozi @ Razia came out of the bathroom and saw accused talking to Zeenat in
the outside room, at that moment, the accused suddenly pulled out an iron
hammer from his T-shirt and hit on the head of Zeenat Parween two-three
times with hammer. Zeenat Parveen screamed and became unconscious. The
accused, thereafter, with intention to kill Noorjahan Begum and Javed
Akhtar also hit them with hammer on their heads, because of which both fell
down and became unconscious. After that accused hit Rozi @ Razia by the
hammer on her head with an intention to kill her resultantly Razia’s head
got fractured. Thereafter, the accused opened the almirah, suitcases and
boxes and looted two gold chains, one pair of tops, one pair of bali, one
pair of jhala, three rings, one nose pin and four pairs of silver anklets,
artificial jewellery etc. and Rs. 23,000/- cash of Noorjahan Begum. He
also took out four brass bangles from the hands of Noorjahan Begum. As a
result of assault Noorjahan Begum died on the spot. On hearing shrieks of
Rozi @ Razia, Ramesh Satnami (PW-1), Ramawadh Pal (PW-5) and other people
of the colony came. At the time of incident, Gulam Mohd. (PW-2) was on duty
and on receiving the news he came to the place of incident and took Rozi @
Razia, Zeenat Parveen and Javed Akhtar to Nehru Hospital.
4. On the basis of the report, Ext.P-10, of Rozi @ Razia Khatoon(PW-4),
a case Crime No.0/10 was registered under Section 302, 307, 450, 394 & 397
IPC at the Police Station Vindhya Nagar. After receiving the news of the
death of Noorjahan and Javed Akhtar, Shiv Kumar Dubey (PW-13) recorded the
marg intimation of Ext.P-24 & 25 in Police Chauki Jayant, P.S. Vindhya
Nagar and the marg intimation-Ext.P/10 was sent to the concerned Police
Station, on the basis of which Crime No.Ka-0-304/10 was registered at P.S.
Baidhan and investigation was started.
5. Sub-Inspector, J.S. Paraste (PW-12), on the same day, went at the
spot and prepared the inquest memo of the body of Noorjahan Begum
(Ext.P/12).The dead body of Noorjahan Begum was sent for postmortem
examination. After conducting inquest proceedings in respect of the dead
body of Javed Akhtar, the same was also sent for postmortem examination.
Dr. Vinod Sharma(PW.16) examined the injuries of Razia Khatoon and Zeenat
Parveen and found injuries on their heads. The injuries, grievous in
nature, were dangerous to life.
6. Dr. V.N. Satnami (PW-10) conducted autopsy of the body of Noorjahan
Begum. He found three injuries on her skull, skull bones were fractured. He
submitted his postmortem report-Ext.P/19. In his opinion, death of the
deceased was homicidal in nature. Dr. V.N. Satnami (PW-10) also conducted
autopsy of body of Javed Akhtar and found two injuries on his head. There
was depressed fracture of skull bone underneath the injuries. In his
opinion, death of the deceased was homicidal in nature. Postmortem report
of Javed Akhtar is Ext.P/20.
7. Anil Upadhyay (PW-11) was the Investigation Officer, who on the same
night apprehended the accused from Khariya Chowk and recovered Rs.23,020/-
from the pocket of his pants. On the information given by the appellant
under Section 27 of the Indian Evidence Act, he recovered stolen articles,
iron hammer and blood stained clothes from the house of the accused
situated in N.C.L. Colony. The recovered articles were identified by Gulam
Mohd (PW.2) and Razia Khatoon (PW-4).
8. After due investigation, the chargesheet was filed and the case was
committed for trial. The appellant denied the guilt and pleaded false
implication but he did not adduce any evidence in his defence.
9. Prosecution examined altogether 16 witnesses and produced a number of
documentary evidence to prove their case. The Trial court on the
appreciation of the evidence held the accused guilty and convicted and
sentenced him for the offence as mentioned above, which was affirmed by the
High Court.
10. Dr. V.N. Satnami (PW-10), who performed the postmortem examination
of the body of Noorjahan Begum found the following injuries on her body:
“(1)Reddish contusion 5 cm x 4 cm present on right side of
forehead. Red blood clot was deposited under the skin.
(2)Lacerated wound 5 cm x 3 cm x bone deep on middle of the
forehead posteriorly with depressed multiple fractures of
underlying bone.
(3) Lacerated wound 4 cm x 3 cm x bone deep on left occipito
parietal region of head with depressed multiple fractures of
underlying bones.
In his opinion, death of deceased Noorjahan had occurred as a
result of coma due to head injury. Death was homicidal in
nature. The postmortem examination report (P/19) was written and
signed by him.”
On the same day, Dr. Satnami (PW-10) performed postmortem examination
of the body of deceased Javed Akhtar and found the following injuries:
“(1) Lacerated wound on left parietal region of head 2 cm x 1 cm
x bone deep with peripheral contusions in size of 6 cm x 5 cm.
subcutaneous reddish blood clot with multiple depressed
fractures of underlying bone.
(2) Reddish contusion on occipital region of head 5 cm x 4 cm in
size with subcutaneous reddish blood clot with depressed
fracture of underlying bone.
In his opinion, death of Javed Akhtar had occurred as a result
of coma due to injury. Death was homicidal in nature.”
11. From the inquest memorandums (Ext.P/6 and P/12) and the evidence of
Sub-Inspector, J.S. Paraste (PW-12) and constable Raj Bahadur Pandey (PW-
15), who conducted inquest, it was established that Noorjahan and Javed
Akhtar died of homicidal injuries found on their bodies.
12. Anil Upadhyay (PW-11), Investigation Officer arrested the accused
from Khariya Chowk, Main Road, P.S. Shakti Nagar in the presence of
witnesses Mohd.Sadiq (PW-6) and Mohd. Yunus (PW-7) and seized money from
him and prepared seizure memo-Ext.P-15. After arrest the accused was
brought to the Police Station-Jayant and was interrogated in front of the
witnesses. During interrogation accused gave information regarding
jewellery and the hammer which was used in committing crime; the clothes,
hammer and jewellery were seized from the house of the accused vide
memorandum-Ext.P-13, written by Anil Upadhyay (PW-11). Anil Upadhyay
stated that he went to the house of accused and seized the jewellery
article from articles-A1 to A 24; seizure memo-Ext.P-14 was prepared. He
had also stated that blood stained clothes and iron hammer were seized in
the presence of witnesses vide seizure memo-Ext.P-16.
13. Mohd. Sadiq (PW.6) and Mohd. Yunus (PW-7) are the independent
witnesses of the memorandum of seizure. In their statement they deposed
that the Police arrested the accused at Khariya Chowk in their presence and
seized about Rs. 23,000/-from him and the accused was brought to the Police
Station-Jayant for inquiry. At the Police Station the accused disclosed
about the jewellery, hammer and clothes, on the basis of which jewellery,
hammer and clothes were seized. Both the witnesses thereby have
corroborated the statement of Anil Upadhyay(PW-11). During the cross-
examination both the witnesses, PW-6 and PW-7 admitted that they visited
the house of Gulam Mohd. There is no infirmity or contradiction in the
statements of the two witnesses.
14. Mohd. Ayaz Khan (PW-9) stated that on 8th July, 2010 at the request
of the Police he conducted identification of the jewellery at stadium
Baidhan and prior to the identification Police had handed over other
jewellery in a sealed packet. He mixed it and then conducted the
identification and during the identification Gulam Mohd. and Razia had
identified the original jewellery. After identification he had handed over
the jewellery in a packet to the Police who were standing outside the
stadium.
15. Zeenat Parween(PW-3) and Razia Khatoon (PW-4), daughters of deceased
Noorjahan and sisters of deceased Javed Akhtar are the injured
eyewitnesses; both of them received serious injuries at the incident. Both
the witness PW-3 and PW-4 clearly stated that sometime before the incident,
the accused had come to their house and he being a prior acquaintance, the
accused had taken refreshment sitting with their mother and also was
talking with her. From the statements of both the witnesses the facts of
the accused coming to their house before the incident, taking refreshment
with deceased Noorjahan and talking with her are proved, which is also
corroborated from the FIR-Ext.P-10. Both these witnesses have also stated
that in the past the accused used to come for tuitions and their mother
used to treat the accused like her son and the photograph of the accused
was also hanging in their house. From the aforesaid evidence, it is clear
that the PW-3 and PW-4 were in a position to identify the accused, the
accused was well acquainted with both PW-3 and PW-4 since long. The
prosecution proved beyond reasonable doubt that even prior to the incident
the accused was known to the deceased and the injured witnesses PW-3 and PW-
4 and on the date of incident also, the accused had come to their house and
had taken refreshments and had talks.
16. Zeenat Parveen (PW-3) and Razia Khatoon (PW-4) in their statements
clearly stated that initially the accused left their house and after
sometime the accused had come again to their house. On opening the door he
had hit the hammer on the head of Javed Akhtar, who had come out after
hearing screams of Zeenat Parveen and then after entering into the bedroom
he hit deceased Noorjahan on her head. From the statement of Razia Khatoon
(PW-4), it is also clear that the accused after entering the store-room had
hit on her head and then the accused had taken out the money and jewellery
from the almirah, suitcase, box and attaché, etc. In paragraph 7 Zeenat
Parveen (PW-3), has also stated that she had seen the accused hit Javed
Akhtar on his head but she could not see as to who hit Razia and her
mother. Such statement cannot be stated to be contradiction and does not
adversely affect the case of the prosecution in view of the deposition made
by Razia Khatoon(PW-4).
17. Similarly, from the statement of Razia Khatoon (PW-4), we find that
the accused after hitting Zeenat Parveen, Javed Akhtar and Noorjahan took
away jewellery, cash amount and the bangles of Noorjahan and then he ran
away after bolting the door from outside.
18. PW-4 further deposed that after the accused run away by bolting the
door from outside she went into the balcony and stop Satnami (PW-1), who at
that time had taken out his vehicle and was going somewhere. Then, the door
was got open. Statements of Razia Khatoon (PW-4) about shouting from the
balcony stopping Satnami (PW-1) and then opening of the door by Satnami are
also proved by the statement of Ramesh Satnami (PW-1), who made similar
statement.
19. In view of the statements made by the injured witnesses Zeenat
Parveen (PW-3) and Razia Khatoon (PW-4) as corroborated by the postmortem
report, seizure of jewellery, hammer, blood stained clothes (Ex.P-13)and
statement of Anil Upadhyay (PW-11), as corroborated by Sadiq (PW-6) and
Yunus (PW-7), the Trial Court rightly held the accused guilty for the
offences u/s 302, 307, 394 r/w 397 and 450 IPC.
20. First ground taken by the learned counsel for the appellant with
respect to denial of opportunity to the accused to be defended by a counsel
of his choice is incorrect as from the record we find that proper
opportunity was given to the accused.
21. The order sheets of the Trial Court dated 25th September, 2010 shows
that the appellant made an application that appellant wanted to get the
witnesses cross-examined by senior Advocate, Mr. Rajendra Singh Chauhan,
therefore, he requested to defer the cross-examination of the witnesses.
The Trial court rejected the application. On 27th September, 2010, counsel
of the accused, Mr. Amrendra Singh, who was defending the accused, refused
to defend him. The Trial Court then appointed one Mr. G.P. Dwivedi,
Advocate, as defence counsel on State expenses.
22. On perusal of records it transpires that Shri Amrendra Singh,
Advocate had filed his Vakalatnama for representing the appellant. On 25th
September, 2010, when the case was fixed for evidence though he was
competent to cross-examine the witnesses but he moved the application to
defer the cross-examination of the witnesses on the ground that the accused
wanted to engage senior Advocate, Mr. Rajendra Singh Chauhan. However,
neither Rajendra Singh Chauhan was present nor any Vakalatnama was filed on
his behalf. On that day, two witnesses, namely Ramesh Satnami (PW-1) and
Gulam Mohd. (PW-2) were examined and Mr. Amrendra Singh, Advocate had cross-
examined those witnesses. None of those witnesses were eyewitnesses; in
fact one of them, Ramesh Satnami (PW-1) was declared hostile. On 27th
September, 2010, Mr. Amrendra Singh refused to appear on behalf of the
appellant, when the appellant on asking expressed his inability to appoint
any counsel. Since there was none to represent the accused, the Trial Court
appointed Mr. G.P. Dwivedi, Advocate, to pursue the appeal. The appellant
has failed to show that Mr. G.P. Dwivedi was not competent or was incapable
of handling the case. On the contrary from the cross-examination of the
witnesses made by Mr. G.P. Dwivedi we find that he was competent to deal
with the case. Even on the next date neither Mr. Rajendra Singh Chauhan,
Advocate appeared nor he filed his Vakalatnama.
23. The next question is whether death sentence awarded to the appellant
is excessive, disproportionate on the facts and circumstance of the case,
i.e. whether the present case can be termed to be a rarest of the rare
case.
24. Guidelines emerged from Bachan Singh vs. State of Punjab, 1980 (2)
SCC 684 were noticed by this Court 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.”
25. In Ronny alias Ronald James Alwaris and others vs. State of
Maharashtra, 1998 (3) SCC 625, this Court held:
“45. These principles have been applied in various judgments
of this Court thereafter and it is unnecessary to multiply the
cases here. Whether the case is one of the rarest of the rare
cases is a question which has to be determined on the facts of
each case. Suffice it to mention that the choice of the death
sentence has to be made only in the rarest of the rare cases and
that where culpability of the accused has assumed depravity or
where the accused is found to be an ardent criminal and menace
to the society and; where the crime is committed in an organised
manner and is gruesome, cold-blooded, heinous and atrocious;
where innocent and unarmed persons are attacked and murdered
without any provocation, the case would present special reason
for purposes of sub-section (3) of Section 354 of the Criminal
Procedure Code.”
In Rony alias Ronald James Alwaris (supra) this Court noted the law
laid-down by this Court 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 case 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.
26. In State of Maharashtra vs. Goraksha Ambaji Adsul, 2011 (7) SCC 437,
this Court made the following observation:
“30. The principles governing the sentencing policy in our
criminal jurisprudence have more or less been consistent, right
from the pronouncement of the Constitution Bench judgment of
this Court in Bachan Singh v. State of Punjab,(2010) 8 SCC 775.
Awarding punishment is certainly an onerous function in the
dispensation of criminal justice. The court is expected to keep
in mind the facts and circumstances of a case, the principles of
law governing award of sentence, the legislative intent of
special or general statute raised in [pic]the case and the
impact of awarding punishment. These are the nuances which need
to be examined by the court with discernment and in depth.
31. The legislative intent behind enacting Section 354(3)
CrPC clearly demonstrates the concern of the legislature for
taking away a human life and imposing death penalty upon the
accused. Concern for the dignity of the human life postulates
resistance to taking a life through law’s instrumentalities and
that ought not to be done, save in the rarest of rare cases,
unless the alternative option is unquestionably foreclosed. In
exercise of its discretion, the court would also take into
consideration the mitigating circumstances and their resultant
effects.
32. The language of Section 354(3) demonstrates the
legislative concern and the conditions which need to be
satisfied prior to imposition of death penalty. The words, “in
the case of sentence of death, the special reasons for such
sentence” unambiguously demonstrate the command of the
legislature that such reasons have to be recorded for imposing
the punishment of death sentence. This is how the concept of the
rarest of rare cases has emerged in law. Viewed from that angle,
both the legislative provisions and judicial pronouncements are
at ad idem in law. The death penalty should be imposed in the
rarest of rare cases and that too for special reasons to be
recorded. To put it simply, a death sentence is not a rule but
an exception. Even the exception must satisfy the prerequisites
contemplated under Section 354(3) CrPC in light of the dictum of
the Court in Bachan Singh(supra).
33. The Constitution Bench judgment of this Court in Bachan
Singh (supra) has been summarised in para 38 in Machhi Singh v.
State of Punjab, (1998) 1 SCC 149, and the following guidelines
have been stated while considering the possibility of awarding
sentence of death: (Machhi Singh case(supra), SCC p. 489)
“(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 requires to be taken into consideration
along with the circumstances of the ‘crime’.
(iii) Life imprisonment is the rule and death sentence is an
exception. … 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.”
(emphasis supplied)
[pic]
34. The judgment in Bachan Sing(supra), did not only state
the above guidelines in some elaboration, but also specified the
mitigating circumstances which could be considered by the Court
while determining such serious issues and they are as follows:
(SCC p. 750, para 206)
“206. … ‘Mitigating circumstances.—In the exercise of its
discretion in the above cases, the court shall take into account
the following circumstances:
(1) That the offence was committed under the influence of
extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old,
he shall not be sentenced to death.
(3) The probability that the accused would not commit
criminal acts of violence as would constitute a continuing
threat to society.
(4) The probability that the accused can be reformed and
rehabilitated.
The State shall by evidence prove that the accused does not
satisfy Conditions (3) and (4) above.
(5) That in the facts and circumstances of the case the
accused believed that he was morally justified in committing the
offence.
(6) That the accused acted under the duress or domination of
another person.
(7) That the condition of the accused showed that he was
mentally defective and that the said defect impaired his
capacity to appreciate the criminality of his conduct.’”
35. Now, we may examine certain illustrations arising from
the judicial pronouncements of this Court.
36. In D.K. Basu v. State of W.B.,(2002) 1 SCC 351, this
Court took the view that custodial torture and consequential
death in custody was an offence which fell in the category of
the rarest of rare cases. While specifying the reasons in
support of such decision, the Court awarded death penalty in
that case.
37. In Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra, (1972) 2 SCC 640, this Court also spelt out in
paras 56 to 58 that nature, motive, impact of a crime,
culpability, quality of evidence, socio-economic circumstances,
impossibility of rehabilitation are the factors which the court
may take into consideration while dealing with such cases. In
that case the friends of the victim had called him to see a
movie and after seeing the movie, a ransom call was made, but
with the fear of being caught, they murdered the victim. The
Court felt that there was no evidence to show that the criminals
were [pic]incapable of reforming themselves, that it was not a
rarest of the rare case, and therefore, declined to award death
sentence to the accused.
38. Interpersonal circumstances prevailing between the
deceased and the accused was also held to be a relevant
consideration in Vashram Narshibhai Rajpara v. State of Gujarat,
(1996) 8 SCC 167, where constant nagging by family was treated
as the mitigating factor, if the accused is mentally unbalanced
and as a result murders the family members. Similarly, the
intensity of bitterness which prevailed and the escalation of
simmering thoughts into a thirst for revenge and retaliation
were also considered to be a relevant factor by this Court in
different cases.
39. This Court in Satishbhushan Bariya (supra) also
considered various doctrines, principles and factors which would
be considered by the Courts while dealing with such cases. The
Court discussed in some elaboration the applicability of the
doctrine of rehabilitation and the doctrine of prudence. While
considering the application of the doctrine of rehabilitation
and the extent of weightage to be given to the mitigating
circumstances, it noticed the nature of the evidence and the
background of the accused. The conviction in that case was
entirely based upon the statement of the approver and was a case
purely of circumstantial evidence. Thus, applying the doctrine
of prudence, it noticed the fact that the accused were
unemployed, young men in search of job and they were not
criminals. In execution of a plan proposed by the appellant and
accepted by others, they kidnapped a friend of theirs. The
kidnapping was done with the motive of procuring ransom from his
family but later they murdered him because of the fear of
getting caught, and later cut the body into pieces and disposed
it off at different places. One of the accused had turned
approver and as already noticed, the conviction was primarily
based upon the statement of the approver.”
“41. The above principle, as supported by case illustrations,
clearly depicts the various precepts which would govern the
exercise of judicial discretion by the courts within the
parameters spelt out under Section 354(3) CrPC. Awarding of
death sentence amounts to taking away the life of an individual,
which is the most valuable right available, whether viewed from
the constitutional point of view or from the human rights point
of view. The condition of providing special reasons for awarding
death penalty is not to be construed linguistically but it is to
satisfy the basic features of a reasoning supporting and making
award of death penalty unquestionable. The circumstances and the
manner of committing the crime should be such that it pricks the
judicial conscience of the court to the extent that the only and
inevitable conclusion should be awarding of death penalty.”
27. This Court in Ramnaresh and others vs. State of Chattisgarh, 2012 (4)
SCC 257, noticed the aggravating and mitigating circumstances with respect
to a crime 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.”
28. Recently, this Court in Shankar Kisanrao Khade vs. State of
Maharashtra, 2013 (5) SCC 546, dealing with a case of death sentence,
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.”
29. In the present case the appellant is an educated person, he was about
26 years old at the time of committing the offence. The accused was a tutor
in the family of the deceased-Noorjahan. He was in acquaintance with the
deceased as well as Zeenat Parveen (PW-3) and Razia Khatoon (PW-4). There
is nothing specific to suggest the motive for committing the crime except
the articles and cash taken away by the accused. It is not the case of the
prosecution that the appellant cannot be reformed or that the accused is a
social menace. Apart from the incident in question there is no criminal
antecedent of the appellant. It is true that the accused has committed a
heinous crime, but it cannot be held with certainty that this case falls in
the “rarest of the rare category”. On appreciation of evidence on record
and keeping in mind the facts and circumstances of the case, we are of the
view that sentence of death penalty would be extensive and unduly harsh.
30. Accordingly, we commute the death sentence of appellant to life
imprisonment. The conviction and rest part of the sentence are affirmed.
Appeals are partly allowed.
………………………………………………J.
(H.L. DATTU)
……….……………………………………J.
(SUDHANSU JYOTI MUKHOPADHAYA)
………………………………………………J.
(M.Y. EQBAL)
NEW DELHI,
JULY 3, 2014.
