REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 1439 OF 2013
PURUSHOTTAM DASHRATH BORATE & ANR. …Appellant(s)
VERSUS
STATE OF MAHARASHTRA …Respondent(s)
J U D G M E N T
H.L. DATTU, CJI.
This appeal is directed against the judgment and order, passed by the High
Court of Judicature for Maharashtra at Bombay in Confirmation Case No.1 of
2012 and Criminal Appeal No.632 of 2012, dated 12.09.2012, 13.09.2012,
24.09.2012 and 25.09.2012. By the impugned judgment and order, the High
Court has confirmed the judgment of conviction and order of sentence passed
by the Court of Sessions Judge, Pune in Sessions Case No.284 of 2008, dated
20.03.2012, whereby the learned Sessions Judge has convicted the accused-
appellants for the offence under Sections 302, 376(2)(g), 364 and 404 read
with Section 120-B of the Indian Penal Code, 1860 (for short, “the IPC”)
and consequently awarded death sentence.
The Prosecution case in a nutshell is:
The deceased was residing with her brother-in-law and sister, namely PW-12
and PW-13 respectively, along with their minor son, in a flat in Pune City.
She was serving as an Associate in the BPO Branch of Wipro Company in Pune
(for short, “the Company”) for about a year, where she used to work in the
night-shift, i.e. from 11:00 p.m. to 09:00 a.m. The fateful day was to be
her last day since she had tendered her resignation one month prior. The
Company had arranged for and hired a private cab service to transport its
employees from their residence to the workplace and back at the conclusion
of their respective work-shifts. Further, to ensure the safety and security
of its female employees the Company imposed a mandatory condition, upon the
owner of the cab, that a security guard be present in the said vehicle, if
a female employee was being transported.
On the fateful day, being 01.11.2007, the cab was deputed to pick up the
deceased from her residence at 10:30 p.m., following which the cab would
collect three other employees of the Company. As per the usual practice, at
about 10:15 p.m., the deceased received a missed call from the driver of
the cab, Purushottam Borate, namely Accused No.1, informing her of the pick-
up. The deceased called back the Accused No.1 to pick her up in 10 minutes
to take her to the workplace, upon which PW-12 and his son went down from
their flat to drop her to the cab. At the time of the pick-up, Pradeep
Kokade, namely Accused No.2, was sitting in the rear seat behind the
driver. The next employee to be collected by the cab was one Sagar Bidkar,
i.e. PW-11, and the expected time of the said pick up was at about 10:45
p.m.
During the journey, between 10:30 p.m. and 11:00 p.m., the deceased
received calls on her mobile phone by one Jeevan Baral, a friend of the
deceased residing in Bangalore, namely PW-14, who heard the former
questioning the Accused No.1 as to where he was taking the cab, why he had
stopped in a jungle and what he was doing. Thereafter, the phone call
between the deceased and PW-14 was abruptly disconnected and subsequent
attempts by the latter to call the deceased were rendered futile as her
mobile phone was found to be switched off. Further, PW-14 was unable to
contact either the Pune Police or the relatives of the deceased in Pune
till the following day.
It is the case of the prosecution that the Accused No.1 and 2, being aware
of the fact that the deceased would be travelling to her workplace that
night and that she would be the first to be collected, under the guise of
taking the deceased to the said workplace, hatched a conspiracy to abduct
her and take her to a secluded spot. The prosecution has alleged that, in
the time period between the abrupt end to the aforementioned phone call
with PW-14 and the pick-up of PW-11 at about 12:45 a.m., the Accused No.1
and 2 committed the heinous offence of gang-rape and thereafter murdered
her by means of strangulating her with her own Odhani, slashing her wrist
with a blade and smashing her head with a stone. Further, that the accused-
appellants stripped the deceased of her possessions and money and then left
her body in the field of one Kisan Bodke.
Thereafter, the cab in question, containing the Accused No.1 and 2, arrived
at about 12:45 a.m., i.e. delayed by nearly two hours, to pick up PW-11
from his residence. At the time, the deceased was no longer present in the
cab. The Accused No.1 informed the PW-11 that neither the deceased nor the
other employees had come for work that day and the cause of the delay was
on account of a punctured tyre. The Accused No.2 vacated the cab shortly
before the Accused No.1 brought the PW-11 to the workplace.
On the following morning, being 02.11.2007, one Pankaj Laxman Bodke, i.e.
PW-8, noticed the dead body of a female on the boundary of the field of
Kisan Bodke and therefore informed one Hiraman Bodke, i.e. PW-1, of the
same. PW-1, after verifying the information, informed the Police Station,
Talegaon Dabhade, where an FIR was promptly lodged. Therefore, an offence
under Section 302 of the IPC was registered and the spot panchanama was
prepared in the presence of PW-3. Inquest report and panchanama was also
prepared in the presence of PW-2 and thereafter the body of the deceased
was sent for post-mortem examination. Furthermore, bloodstained stone, a
pair of ladies sandal, bloodstained blade, soil mixed with blood and sample
soil was seized from the spot of the incident. The clothes found on the
body of the deceased, after the post-mortem examination, were also duly
seized. Dr. Waghmare, i.e. PW-16, who performed the post-mortem
examination, gave the opinion that the cause of death was due to shock and
hemorrhage due to grievous injuries to vital organs with skull fracture
involving frontal, left temporal, parietal bone with laceration to brain
with fractured ribs, right lung ruptured with strangulation. Further, on
the basis of the report of the Chemical Analyzer, PW-16 gave the opinion
that the deceased was a victim of the offence of rape prior to her death.
In the meanwhile, on 02.11.2007 itself, due to the fact that the deceased
had not returned home the next day, her sister, i.e. PW-13, started to make
enquiries as to her whereabouts. PW-13 was informed by the Company that the
deceased had not reported to the workplace on the previous night. Further,
PW-13 received information, from PW-14, about the events pertaining to the
telephonic conversation with the deceased between 10:30 p.m. and 11:00 p.m.
on that fateful night. Therefore, a missing persons report was immediately
filed that evening itself in the Chatushringi Police Station.
On 03.11.2007, PW-12 and PW-13 were informed that a dead body has been
recovered within the jurisdiction of the Talegaon Dabhade Police Station.
Consequently, the said PW-12 and PW-13 reached the Police Station and on
the basis of a photograph of the body of the deceased and the clothes that
were seized, they confirmed the identity of the deceased. Furthermore, the
PW-12 and PW-13 also confirmed that the body at the morgue was that of the
deceased.
After the aforesaid FIR, dated 02.11.2007, was registered, the Police duly
initiated an investigation and made inquires with the Company.
Consequently, the Accused No.1 and 2 were taken into custody, at about
05:30 a.m., on 03.11.2007. Thereafter, based on confessional statements of
the accused-appellants, the police were able to recover the stolen items
belonging to the deceased, from their respective houses, namely sim card,
mobile phone, ear ring, watch, gold ring. The vehicle in which the deceased
was taken by the accused-appellants was also seized and the panchanama was
prepared. Further, the Test Identification Parade was conducted, on
14.01.2008, wherein the PW-12 identified the Accused No. 1 and 2 as the
persons in the cab with the deceased.
Pursuant to the investigations, a charge-sheet was duly filed by the
police. On 05.03.2009, the charges were framed under Sections 364,
376(2)(g) and 302 read with 34 and 404 read with 34 of the IPC. On
03.04.2010, the charge was altered and the independent charge of conspiracy
under Section 120-B of the IPC was added. Additionally, the charge under
Section 120-B of the IPC was added with the charge under Sections 302,
376(2)(g), 364 and 404 of the IPC. The accused-appellants pleaded not
guilty to the aforesaid charges and thus, the case was committed to trial.
During the course of the Trial, the prosecution examined 29 witnesses of
which 11 were examined on the aspect of circumstantial evidence and 2 were
doctors to establish the factum of rape and murder. PW-1, the Police Patil
who registered the complaint personally, maintained his version as stated
in the FIR, dated 02.11.2007, that PW-8 was the person who found the body
of the deceased and informed the complainant of the same. PW-12, the
brother-in-law of the deceased, deposed that he was the last person to see
the latter alive and that too in the company of the accused-appellants. The
statement of PW-14, that he was the last person to talk to the deceased
between 10:30 p.m. and 11:00 p.m., was supported by documentary evidence,
i.e. call records. The evidence of PW-12, PW-13 and PW-14, in respect of
the whereabouts of the deceased on the fateful night, and with regard to
the identity of the accused-appellants was found to be consistent and
trustworthy. Furthermore, based on the confessional statements of the
accused-appellants, the police were able to recover the vehicle, the items
stolen from the body of the deceased as well as the Odhani of the deceased,
which was found to be one of the tools used to commit murder, i.e. by way
of strangulation. The Odhani and clothes of the deceased that was
recovered, after chemical analysis, was found to contain semen stains of
both the accused-appellants. Further that, on the basis of the vaginal swab
taken during the post-mortem examination and the report of the Chemical
Analyzer, it has been shown that semen of both the accused-appellants was
found in the said swab as well.
The Sessions Court, upon meticulous consideration of the material on record
and the submissions made by the parties, observed that the evidence of the
prosecution formed a chain so complete that it excluded any hypothesis
other than the guilt of the accused-appellants. It concluded that the
testimonies of PW-12, PW-13, PW-14, PW-1 and PW-11 are true and reliable
and that the same along with the evidence of PW-16, the post-mortem report
and the report of the Chemical Analyzer support the case of the
prosecution. The Sessions Court has noticed that the evidence of PW-12,
which states that the deceased was last seen in the company of accused-
appellants, coupled with the lack of explanation for the same by the
accused-appellants in their statements under Section 313 of the Code,
provides a firm link in the chain of circumstances. The Sessions Court
observed that the accused-appellants have failed miserably in discharging
their burden of proving that the deceased was not in their company or that
their cab suffered a punctured tyre. Further, that the recoveries made at
the instance of the accused-appellants, including the vehicle in question,
the belongings of the deceased in the respective houses of the accused-
appellants, the Odhani of the deceased which was used as a weapon of murder
along with the medical evidence and testimony of PW-16 establish the factum
of commission of the crime by the accused-appellants. The subsequent
conduct of the accused-appellants, where they continued to pick-up PW-11
and lied to him about the cause of the delay and the whereabouts of the
deceased, has been found to be compatible with their guilt and in
consonance with their meticulously chalked out plan for the commission of
the offence of gang-rape and murder. Therefore, in light of the aforesaid,
the Sessions Court concluded that the chain of circumstances evince beyond
any reasonable doubt that the accused-appellants have committed the heinous
offence of rape and murder of the deceased.
With regard to the quantum of sentence, the Sessions Court noticed the well-
settled principles laid down by this Court in Bachan Singh v. State of
Punjab, (1980) 2 SCC 684; Macchi Singh and Ors. v. State of Punjab, (1983)
3 SCC 470; Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220;
Devender Pal Singh v. State of NCT of Delhi, (2002) 5 SCC 234; Aqeel Ahmed
v. State of UP, (2008) 16 SCC 372 and Atbir Singh v. Govt. of NCT of Delhi,
(2010) 9 SCC 1. Further, on due consideration to the aggravating and
mitigating circumstances present in the facts of the case, the Sessions
Court observed that the balance was clearly tilting against the accused-
appellants. After affording an opportunity of hearing to the accused-
appellants on the question of sentence, the Sessions Court has awarded them
death sentence and fine of Rs.5,000/- each for the offence punishable under
Section 120-B of the IPC, death sentence and fine of Rs.5,000/- each for
the offence punishable under Section 302 read with Section 120-B of the
IPC; imprisonment for life and fine of Rs.5,000/- for the offence
punishable under Section 376(2)(g) read with Section 120-B of the IPC;
imprisonment for life and fine of Rs.5,000/- each for the offence
punishable under Section 364 read with Section 120-B of the IPC; and
rigorous imprisonment for two years and a fine of Rs.10,000/- each for the
offence punishable under Section 404 read with Section 120-B of the IPC.
The Sessions Court, in its order of sentence, has noticed that the accused-
appellants committed and executed the heinous offences in a pre-planned and
meticulous manner which showed the determination of both the accused to
complete the crime and take away the life of the accused. The Sessions
Court observed that the extreme depravity with which the offences were
committed and the merciless manner in which the deceased was raped and done
to death, coupled with the gross abuse of the position of trust held by the
Accused No.1 and the lack of remorse or repentance for any of their
actions, would clearly indicate that the given case was fit to be placed
within the category of “rarest of rare” and the only punishment
proportionate to the brutality exhibited by the accused-appellants would be
the death penalty.
Aggrieved by the aforesaid judgment and order, the accused-appellants filed
an appeal before the High Court which was heard along with the Reference
for confirmation of death sentence under Section 366 Code of Criminal
Procedure, 1973 (for short, “the Code”) and disposed of by a common
judgment and order, dated 12.09.2012, 13.09.2012, 24.09.2012 and
25.09.2012.
The High Court has, vide the impugned judgment and order, elaborately dealt
with the entire evidence on record and extensively discussed the judgment
and order of the Sessions Court in order to ascertain the correctness or
otherwise of the conviction and sentence awarded to the accused-appellants.
The High Court has carefully examined the evidence on record including
testimonies of the Prosecution Witnesses and recorded the finding that the
said statements do not reflect any discrepancy or inconsistency of facts
and therefore must be considered as cogent, reliable and incontrovertible
evidence. Further, that the medical evidence and the deposition by PW-16,
i.e. the doctor who conducted the post-mortem examination, clearly
indicates the commission of the offence of rape and the brutal murder of
the deceased. The High Court has taken note of the statement of the PW-16
that the probable cause of death was shock and hemorrhage due to grievous
injury to vital organs with skull fracture involving frontal, left
temporal, parietal bone with laceration to brain, fracture to the ribs and
right lung rupture with strangulation, and further that the strangulation
was committed by overpowering the deceased suddenly from behind. On the
basis of the medical report as well as the Chemical Analyzer’s report, the
High Court has observed that the factum of commission of the offence of
rape by the Accused No.1 and 2 has been conclusively proved. The High Court
has recorded that the recovery of weapons of murder from the place where
the body of the deceased was located as well as from the house of the
Accused No.1, the latter being at the instance of a confession by the said
accused, has also been established beyond any shadow of doubt. In light of
the chain of circumstantial evidence having been established beyond any
reasonable doubt, the High Court has concluded towards the guilt of accused-
appellants and confirmed the judgment of conviction passed by the Sessions
Court.
With respect of the quantum of sentence, the High Court has noticed the
well-settled law laid down by this Court and concluded that the present
case falls under the category of “rarest of rare”. The High Court has
observed that the heinous acts have been committed by the accused-
appellants in a diabolical and cold-blooded manner without any hesitation
and undeterred by its consequences. Further, that the manner of commission
of the offence coupled with their subsequent conduct obliterates any chance
of reformation and that there is no guarantee that the accused-appellants
would not commit the same or similar offence if they were released.
Therefore, the High Court confirmed the death sentence awarded by the
Sessions Court.
The accused-appellants, aggrieved by the aforesaid confirmation of death
sentence awarded to them, are before us in this appeal.
At the outset, it would be pertinent to note that this Court has issued
notice on the limited issue of the sentence, by order dated 04.07.2013.
Therefore, the learned counsel would limit her case only to the question of
determination of quantum of sentence awarded by the Courts below and seek
for commutation of the said sentence.
Learned counsel for the accused-appellants would vehemently argue in favour
of commutation of the death sentence awarded to the appellants as the case
did not fall within the purview of “rarest of rare” cases. Further, she
would submit that, in the present case, the mitigating circumstances
outweighed the aggravating circumstances, namely that the age of the
accused-appellants, the absence of any criminal antecedents and the
possibility that they could be reformed and rehabilitated would reflect
that a sentence of life imprisonment would suffice the ends of justice. Per
contra, the learned counsel for the respondent-State would seek to support
the judgment and order passed by the High Court and Sessions Court.
We have given our anxious consideration to the arguments advanced by
learned counsel for the parties to the appeal and also carefully
scrutinized the evidence on record as well as the judgment(s) and order(s)
passed by the Courts below.
We do not intend to saddle the judgment with the settled position of law in
respect of the sentencing policy and the principles evolved by this Court
for weighing the aggravating and mitigating factors in specific facts of
the case. However, it would be apposite to notice the decision of this
Court in the case of Bachan Singh (supra), wherein the constitutional
validity of the provisions that authorize the Trial Court to award death
sentence for the offence punishable under Section 302 of the IPC and other
offences was upheld. However, this Court observed that there can be no
strait jacket formula which can be applied in each case and that while
considering the sentence to be awarded, the Court must look into the
aggravating and mitigating circumstances. The ratio of the decision in
Bachan Singh (supra) has been followed in the case of Machhi Singh (supra)
wherein this Court held that the manner of commission, motive for
commission, anti-social nature of crime, magnitude of crime and personality
of victim ought to be kept in mind while awarding an appropriate sentence.
It was held that a balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so, the mitigating
circumstances have to be accorded full weightage and a balance has to be
struck.
It is an established position that law regulates social interests and
arbitrates conflicting claims and demands. Security of persons is a
fundamental function of the State which can be achieved through
instrumentality of criminal law. The society today has been infected with a
lawlessness that has gravely undermined social order. Protection of society
and stamping out criminal proclivity must be the object of law which may be
achieved by imposing appropriate sentence. Therefore, in this context, the
vital function that this Court is required to discharge is to mould the
sentencing system to meet this challenge. The facts and given circumstances
in each case, the nature of the crime, the manner in which it was planned
and committed, the motive for commission of the crime, the conduct of the
accused and all other attending circumstances are relevant facts which
would enter into the area of consideration. Based on the facts of the case,
this Court is required to be stern where it should be and tempered with
mercy where warranted.
In this context, it would be profitable to notice the manner in which this
Court has considered the sentencing policy vis-à-vis certain aggravating
and mitigating circumstances.
In the case of Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257, this
Court referred to the Bachan Singh case (supra) and Machhi Singh case
(supra) to cull out certain principles governing aggravating and mitigating
circumstances. It would be beneficial to refer to the same hereinbelow:
“Aggravating circumstances
(1) The offences relating to the commission of heinous crimes like murder,
rape, armed dacoity, kidnapping, etc. by the accused with a prior record of
conviction for capital felony or offences committed by the person having a
substantial history of serious assaults and criminal convictions.
(2) The offence was committed while the offender was engaged in the
commission of another serious offence.
(3) The offence was committed with the intention to create a fear psychosis
in the public at large and was committed in a public place by a weapon or
device which clearly could be hazardous to the life of more than one
person.
(4) The offence of murder was committed for ransom or like offences to
receive money or monetary benefits.
(5) Hired killings.
(6) The offence was committed outrageously for want only while involving
inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful custody.
(8) The murder or the offence was committed to prevent a person lawfully
carrying out his duty like arrest or custody in a place of lawful
confinement of himself or another. For instance, murder is of a person who
had acted in lawful discharge of his duty under Section 43 CrPC.
(9) When the crime is enormous in proportion like making an attempt of
murder of the entire family or members of a particular community.
(10) When the victim is innocent, helpless or a person relies upon the
trust of relationship and social norms, like a child, helpless woman, a
daughter or a niece staying with a father/uncle and is inflicted with the
crime by such a trusted person.
(11) When murder is committed for a motive which evidences total depravity
and meanness.
(12) When there is a cold-blooded murder without provocation.
(13) The crime is committed so brutally that it pricks or shocks not only
the judicial conscience but even the conscience of the society.
Mitigating circumstances
(1) The manner and circumstances in and under which the offence was
committed, for example, extreme mental or emotional disturbance or extreme
provocation in contradistinction to all these situations in normal course.
(2) The age of the accused is a relevant consideration but not a
determinative factor by itself.
[pic] (3) The chances of the accused of not indulging in commission of the
crime again and the probability of the accused being reformed and
rehabilitated.
(4) The condition of the accused shows that he was mentally defective and
the defect impaired his capacity to appreciate the circumstances of his
criminal conduct.
(5) The circumstances which, in normal course of life, would render such a
behaviour possible and could have the effect of giving rise to mental
imbalance in that given situation like persistent harassment or, in fact,
leading to such a peak of human behaviour that, in the facts and
circumstances of the case, the accused believed that he was morally
justified in committing the offence.
(6) Where the court upon proper appreciation of evidence is of the view
that the crime was not committed in a preordained manner and that the death
resulted in the course of commission of another crime and that there was a
possibility of it being construed as consequences to the commission of the
primary crime.
(7) Where it is absolutely unsafe to rely upon the testimony of a sole
eyewitness though the prosecution has brought home the guilt of the
accused.”
Further, it has been held by this Court that undue sympathy to impose
inadequate sentence would do more harm to the justice system by undermining
the public [pic]confidence in the efficacy of law [See Mahesh v. State of
M.P., (1987) 3 SCC 80; Sevaka Perumal v. State of T.N., (1991) 3 SCC 471
and Mofil Khan v. State of Jharkhand, (2015) 1 SCC 67]. To give the lesser
punishment for the accused would be to render the judicial system of the
country suspect. If the courts do not protect the injured, the injured
would then resort to private vengeance. It is, therefore, the duty of every
court to award proper sentence having regard to the nature of the offence
and the manner in which it was executed or committed etc.
In the case of B.A. Umesh v. High Court of Karnataka, (2011) 3 SCC 85, the
appellant was accused of a brutal rape and murder of a lady. It was found,
by medical evidence, that the deceased therein was a victim of a violent
rape prior to death and the death was caused due to as asphyxiation.
Further, the medical report found that the body of the deceased has several
abrasions and lacerations. This Court, noticing the brutal and violent
manner of commission of the offences confirmed the death sentence to the
accused therein. It was held that:
“84. As has been indicated by the courts below, the antecedents of the
appellant and his subsequent conduct indicates that he is a menace to the
society and is incapable of rehabilitation. The offences committed by the
appellant were neither under duress nor on provocation and an innocent life
was snuffed out by him after committing violent rape on the victim. ...”
In the Sevaka Perumal case (supra), the counsel for the appellants therein
contended that considering the young age of the accused, the same would be
a strong mitigating factor in favour of commutation of death sentence. It
was contended therein that the accused were the breadwinners of their
family which consisted of a young wife, minor child and aged parents.
However, this Court, finding no force in the said contention, observed that
such compassionate grounds are present in most cases and are not relevant
for interference in awarding death sentence. The principle that when the
offence is gruesome and was committed in a calculated and diabolical
manner, the age of the accused may not be a relevant factor, was further
affirmed by a three-Judge Bench of this Court in Mofil Khan case (supra).
In view of the aforesaid decisions highlighting the approach of this Court,
we would now consider the decision of the Courts below, in the present
case. The Sessions Court has noticed a similarity with the present case and
the decision of this Court in the case of Dhananjoy Chatterjee (supra).
Therefore, in light of the same, the Sessions Court has held that the
present case would merit a sentence of death penalty and no less. The
Session Court has observed:
“... In present case, accused driver alongwith co-accused committed rape
and murder of helpless and defenceless young girl who was reposing complete
faith and trust on them by carefully planning the crime and executing it in
barbaric manner. Taking the verdict in the matter of Dhananjoy Chatterjee
(supra) as yardstick, there is no hesitation to put on record that the case
at hand is the rarest of rare case warranting nothing else but the death
penalty to the accused persons. ...”
The High Court, by the impugned judgment and order, has concurred with the
findings recorded by the Sessions Court in respect of the chain of
circumstances being clearly and incontrovertibly established by the
prosecution. With regard to the balance sheet of aggravating and mitigating
circumstances, the High Court has, in addition to the finding and
observations of the Sessions Court, held that the aggravating circumstances
far outweigh the mitigating circumstances. Therefore, the High Court has
recorded that there is no alternative but to confirm the death sentence as
awarded by the Sessions Courts.
At this juncture, it would be pertinent to notice the Dhananjoy Chatterjee
case (supra). As noticed above, the said case has been noticed by the
Sessions Court, in the present case, as bearing great similarity to the
facts herein. In the Dhananjoy Chatterjee case (supra), the accused was
convicted for the brutal rape and murder of a young girl aged about 18
years. The accused-therein was employed as a security guard of the building
where the deceased resided and therefore was entrusted with the noble task
of ensuring her safety and security. The reasoning therein has been
instrumental in moulding the sentencing policy of this Court and therefore
it would be gainful to reproduce the relevant paragraphs from the said case
below:
“15. In our opinion, the measure of punishment in a given case must depend
upon the atrocity of the crime; the conduct of the criminal and the
defenceless and unprotected state of the victim. Imposition of appropriate
punishment is the manner in which the courts respond to the society’s cry
for justice against the criminals. Justice demands that courts should
impose punishment befitting the crime so that the courts reflect public
abhorrence of the crime. The courts must not only keep in view the rights
of the criminal but also the rights of the victim of crime and the society
at large while considering imposition of appropriate punishment.
16. The sordid episode of the security guard, whose sacred duty was to
ensure the protection and welfare of the inhabitants of the flats in the
apartment, should have subjected the deceased, a resident of one of the
flats, to gratify his lust and murder her in retaliation for his transfer
on her complaint, makes the crime even more heinous. Keeping in view the
medical evidence and the state in which the body of the deceased was found,
it is obvious that a most heinous type of barbaric rape and murder was
committed on a helpless and defenceless school-going girl of 18 years. If
the security guards behave in this manner who will guard the guards? The
faith of the society by such a barbaric act of the guard, gets totally
shaken and its cry for justice becomes loud and clear. The offence was not
only inhuman and barbaric but it was a totally ruthless crime of rape
followed by cold blooded murder and an affront to the human dignity of the
society. The savage nature [pic]of the crime has shocked our judicial
conscience. There are no extenuating or mitigating circumstances whatsoever
in the case. We agree that a real and abiding concern for the dignity of
human life is required to be kept in mind by the courts while considering
the confirmation of the sentence of death but a cold blooded preplanned
brutal murder, without any provocation, after committing rape on an
innocent and defenceless young girl of 18 years, by the security guard
certainly makes this case a “rarest of the rare” cases which calls for no
punishment other than the capital punishment and we accordingly confirm the
sentence of death imposed upon the appellant for the offence under Section
302 IPC. The order of sentence imposed on the appellant by the courts below
for offences under Sections 376 and 380 IPC are also confirmed along with
the directions relating thereto as in the event of the execution of the
appellant, those sentences would only remain of academic interest. This
appeal fails and is hereby dismissed.”
It would now be necessary for this Court to consider the balance sheet of
aggravating and mitigating circumstances. In the instant case, the learned
counsel for the accused-appellants has laid stress upon the age of the
accused persons, their family background and lack of criminal antecedents.
Further, the learned counsel has fervently contended that the accused-
appellants are capable of reformation and therefore should be awarded the
lighter punishment of life imprisonment.
In our considered view, in the facts of the present case, age alone cannot
be a paramount consideration as a mitigating circumstance. Similarly,
family background of the accused also could not be said to be a mitigating
circumstance. Insofar as Accused No.1 is concerned, it has been contended
that he was happily married and his wife was pregnant at the relevant time.
However, the Accused No.1 did not take into consideration the condition of
his wife or his mother while committing the said offence and, as a result,
his wife deserted him and his widowed mother is being looked after by his
nephew and niece. Insofar as Accused No.2 is concerned, he has two sisters
who are looking after his widowed mother. Lack of criminal antecedents also
cannot be considered as mitigating circumstance, particularly taking into
consideration, the nature of heinous offence and cold and calculated manner
in which it was committed by the accused persons.
In our considered view, the “rarest of the rare” case exists when an
accused would be a menace or, threat to and incompatible with harmony in
the society. In a case where the accused does not act on provocation or on
the spur of the moment, but meticulously executes a deliberate, cold-
blooded and pre-planned crime, giving scant regard to the consequences of
the same, the precarious balance in the sentencing policy evolved by our
criminal jurisprudence would tilt heavily towards the death sentence. This
Court is mindful of the settled principle that criminal law requires strict
adherence to the rule of proportionality in awarding punishment, and the
same must be in accordance with the culpability of the criminal act.
Furthermore, this Court is also conscious to the effect, of not awarding
just punishment, on the society.
In the present factual matrix, Accused No.1 abducted the deceased with help
of Accused No.2, and subsequently they raped and murdered her. They did not
show any regret, sorrow or repentance at any point of time during the
commission of the heinous offence, nor thereafter, rather they acted in a
disturbingly normal manner after commission of crime. It has been
established by strong and cogent evidence that after the commission of the
gruesome crime, Accused No.2 accompanied Accused No.1 for the second pick
up and exited the cab only prior to reaching the gate of the Company.
Further, it has been brought on record that the Accused No.1 attempted to
create false record of the whereabouts of the cab and the cause of the
delay in arriving at the workplace. In addition, it has been noticed that
even though the accused-appellants were seen by PW-12, that the deceased
repeatedly questioned them of the unusual route, or that the deceased was
talking to a friend on the phone during the journey, nothing deterred them
from committing the heinous offences. In fact the Sessions Court has
noticed that during the commission of the offences, the accused-appellants
were contacted by PW-11 seeking an explanation for the delay in picking him
up, however even this did not deter them.
Thus, the manner in which the commission of the offence was so meticulously
and carefully planned coupled with the sheer brutality and apathy for
humanity in the execution of the offence, in every probability they have
potency to commit similar offence in future. It is clear that both the
accused persons have been proved to be a menace to society which strongly
negates the probability that they can be reformed or rehabilitated. In our
considered opinion, the mitigating circumstances are wholly absent in the
present factual matrix. This appeal is not a case where the offence was
committed by the accused persons under influence of extreme mental or
emotional disorder, nor is it a case where the offence may be argued to be
a crime of passion or one committed at the spur of the moment. There is no
question of accused persons believing that they were morally justified in
committing the offence on helpless and defenceless young woman.
Therefore, in view of the above and keeping the aforesaid principle of
proportionality of sentence in mind, this Court is in agreement with the
reasoning of the Courts below that the extreme depravity with which the
deceased was done to death coupled with the other factors including the
position of trust held by the Accused No.1, would tilt the balance between
the aggravating and mitigating circumstances greatly against the accused-
appellants. The gruesome act of raping a victim who had reposed her trust
in the accused followed by a cold-blooded and brutal murder of the said
victim coupled with the calculated and remorseless conduct of the accused
persons after the commission of the offence, we cannot resist from
concluding that the depravity of the appellants’ offence would attract no
lesser sentence than the death penalty.
In addition to the above, it would be necessary for this Court to notice
the impact of the crime on the community and particularly women working in
the night shifts at Pune, which is considered as a hub of Information
Technology Centre. In recent years, the rising crime rate, particularly
violent crimes against women has made the criminal sentencing by the Courts
a subject of concern. The sentencing policy adopted by the Courts, in such
cases, ought to have a stricter yardstick so as to act as a deterrent.
There are a shockingly large number of cases where the sentence of
punishment awarded to the accused is not in proportion to the gravity and
magnitude of the offence thereby encouraging the criminal and in the
ultimate making justice suffer by weakening the system’s credibility. The
object of sentencing policy should be to see that the crime does not go
unpunished and the victim of crime as also the society has the satisfaction
that justice has been done to it. In the case of Machhi Singh (supra), this
Court observed that the extreme punishment of death would be justified and
necessary in cases where the collective conscience of society is so shocked
that it will expect the holders of judicial power to inflict death penalty
irrespective of their personal opinion.
It is true that any case of rape and murder would cause a shock to the
society but all such offences may not cause revulsion in society. Certain
offences shock the collective conscience of the court and community. The
heinous offence of gang-rape of an innocent and helpless young woman by
those in whom she had reposed trust, followed by a cold-blooded murder and
calculated attempt of cover-up is one such instance of a crime which shocks
and repulses the collective conscience of the community and the court.
Therefore, in light of the aforesaid settled principle, this Court has no
hesitation in holding that this case falls within the category of “rarest
of rare”, which merits death penalty and none else. The collective
conscience of the community is so shocked by this crime that imposing
alternate sentence, i.e. a sentence of life imprisonment on the accused
persons would not meet the ends of justice. Rather, it would tempt other
potential offenders to commit such crime and get away with the
lesser/lighter punishment of life imprisonment.
In the result, after having critically appreciated the entire evidence on
record as well as the judgments of the Courts below in great detail, we are
in agreement with the reasons recorded by the trial court and approved by
the High Court while awarding and confirming the death sentence of the
accused-appellants. In our considered view, the judgment and order passed
by the Courts below does not suffer from any error whatsoever.
Therefore, this appeal is rejected and the sentence of death awarded to the
accused-appellants is confirmed. The judgment and order passed by the High
Court is accordingly affirmed.
The appeal is disposed of in the aforesaid terms.
Ordered accordingly.
.............CJI.
(H.L. DATTU)
...............J.
(S.A. BOBDE)
...............J.
(ARUN MISHRA)
NEW DELHI
May 08, 2015.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 1439 OF 2013
PURUSHOTTAM DASHRATH BORATE & ANR. …Appellant(s)
VERSUS
STATE OF MAHARASHTRA …Respondent(s)
J U D G M E N T
H.L. DATTU, CJI.
This appeal is directed against the judgment and order, passed by the High
Court of Judicature for Maharashtra at Bombay in Confirmation Case No.1 of
2012 and Criminal Appeal No.632 of 2012, dated 12.09.2012, 13.09.2012,
24.09.2012 and 25.09.2012. By the impugned judgment and order, the High
Court has confirmed the judgment of conviction and order of sentence passed
by the Court of Sessions Judge, Pune in Sessions Case No.284 of 2008, dated
20.03.2012, whereby the learned Sessions Judge has convicted the accused-
appellants for the offence under Sections 302, 376(2)(g), 364 and 404 read
with Section 120-B of the Indian Penal Code, 1860 (for short, “the IPC”)
and consequently awarded death sentence.
The Prosecution case in a nutshell is:
The deceased was residing with her brother-in-law and sister, namely PW-12
and PW-13 respectively, along with their minor son, in a flat in Pune City.
She was serving as an Associate in the BPO Branch of Wipro Company in Pune
(for short, “the Company”) for about a year, where she used to work in the
night-shift, i.e. from 11:00 p.m. to 09:00 a.m. The fateful day was to be
her last day since she had tendered her resignation one month prior. The
Company had arranged for and hired a private cab service to transport its
employees from their residence to the workplace and back at the conclusion
of their respective work-shifts. Further, to ensure the safety and security
of its female employees the Company imposed a mandatory condition, upon the
owner of the cab, that a security guard be present in the said vehicle, if
a female employee was being transported.
On the fateful day, being 01.11.2007, the cab was deputed to pick up the
deceased from her residence at 10:30 p.m., following which the cab would
collect three other employees of the Company. As per the usual practice, at
about 10:15 p.m., the deceased received a missed call from the driver of
the cab, Purushottam Borate, namely Accused No.1, informing her of the pick-
up. The deceased called back the Accused No.1 to pick her up in 10 minutes
to take her to the workplace, upon which PW-12 and his son went down from
their flat to drop her to the cab. At the time of the pick-up, Pradeep
Kokade, namely Accused No.2, was sitting in the rear seat behind the
driver. The next employee to be collected by the cab was one Sagar Bidkar,
i.e. PW-11, and the expected time of the said pick up was at about 10:45
p.m.
During the journey, between 10:30 p.m. and 11:00 p.m., the deceased
received calls on her mobile phone by one Jeevan Baral, a friend of the
deceased residing in Bangalore, namely PW-14, who heard the former
questioning the Accused No.1 as to where he was taking the cab, why he had
stopped in a jungle and what he was doing. Thereafter, the phone call
between the deceased and PW-14 was abruptly disconnected and subsequent
attempts by the latter to call the deceased were rendered futile as her
mobile phone was found to be switched off. Further, PW-14 was unable to
contact either the Pune Police or the relatives of the deceased in Pune
till the following day.
It is the case of the prosecution that the Accused No.1 and 2, being aware
of the fact that the deceased would be travelling to her workplace that
night and that she would be the first to be collected, under the guise of
taking the deceased to the said workplace, hatched a conspiracy to abduct
her and take her to a secluded spot. The prosecution has alleged that, in
the time period between the abrupt end to the aforementioned phone call
with PW-14 and the pick-up of PW-11 at about 12:45 a.m., the Accused No.1
and 2 committed the heinous offence of gang-rape and thereafter murdered
her by means of strangulating her with her own Odhani, slashing her wrist
with a blade and smashing her head with a stone. Further, that the accused-
appellants stripped the deceased of her possessions and money and then left
her body in the field of one Kisan Bodke.
Thereafter, the cab in question, containing the Accused No.1 and 2, arrived
at about 12:45 a.m., i.e. delayed by nearly two hours, to pick up PW-11
from his residence. At the time, the deceased was no longer present in the
cab. The Accused No.1 informed the PW-11 that neither the deceased nor the
other employees had come for work that day and the cause of the delay was
on account of a punctured tyre. The Accused No.2 vacated the cab shortly
before the Accused No.1 brought the PW-11 to the workplace.
On the following morning, being 02.11.2007, one Pankaj Laxman Bodke, i.e.
PW-8, noticed the dead body of a female on the boundary of the field of
Kisan Bodke and therefore informed one Hiraman Bodke, i.e. PW-1, of the
same. PW-1, after verifying the information, informed the Police Station,
Talegaon Dabhade, where an FIR was promptly lodged. Therefore, an offence
under Section 302 of the IPC was registered and the spot panchanama was
prepared in the presence of PW-3. Inquest report and panchanama was also
prepared in the presence of PW-2 and thereafter the body of the deceased
was sent for post-mortem examination. Furthermore, bloodstained stone, a
pair of ladies sandal, bloodstained blade, soil mixed with blood and sample
soil was seized from the spot of the incident. The clothes found on the
body of the deceased, after the post-mortem examination, were also duly
seized. Dr. Waghmare, i.e. PW-16, who performed the post-mortem
examination, gave the opinion that the cause of death was due to shock and
hemorrhage due to grievous injuries to vital organs with skull fracture
involving frontal, left temporal, parietal bone with laceration to brain
with fractured ribs, right lung ruptured with strangulation. Further, on
the basis of the report of the Chemical Analyzer, PW-16 gave the opinion
that the deceased was a victim of the offence of rape prior to her death.
In the meanwhile, on 02.11.2007 itself, due to the fact that the deceased
had not returned home the next day, her sister, i.e. PW-13, started to make
enquiries as to her whereabouts. PW-13 was informed by the Company that the
deceased had not reported to the workplace on the previous night. Further,
PW-13 received information, from PW-14, about the events pertaining to the
telephonic conversation with the deceased between 10:30 p.m. and 11:00 p.m.
on that fateful night. Therefore, a missing persons report was immediately
filed that evening itself in the Chatushringi Police Station.
On 03.11.2007, PW-12 and PW-13 were informed that a dead body has been
recovered within the jurisdiction of the Talegaon Dabhade Police Station.
Consequently, the said PW-12 and PW-13 reached the Police Station and on
the basis of a photograph of the body of the deceased and the clothes that
were seized, they confirmed the identity of the deceased. Furthermore, the
PW-12 and PW-13 also confirmed that the body at the morgue was that of the
deceased.
After the aforesaid FIR, dated 02.11.2007, was registered, the Police duly
initiated an investigation and made inquires with the Company.
Consequently, the Accused No.1 and 2 were taken into custody, at about
05:30 a.m., on 03.11.2007. Thereafter, based on confessional statements of
the accused-appellants, the police were able to recover the stolen items
belonging to the deceased, from their respective houses, namely sim card,
mobile phone, ear ring, watch, gold ring. The vehicle in which the deceased
was taken by the accused-appellants was also seized and the panchanama was
prepared. Further, the Test Identification Parade was conducted, on
14.01.2008, wherein the PW-12 identified the Accused No. 1 and 2 as the
persons in the cab with the deceased.
Pursuant to the investigations, a charge-sheet was duly filed by the
police. On 05.03.2009, the charges were framed under Sections 364,
376(2)(g) and 302 read with 34 and 404 read with 34 of the IPC. On
03.04.2010, the charge was altered and the independent charge of conspiracy
under Section 120-B of the IPC was added. Additionally, the charge under
Section 120-B of the IPC was added with the charge under Sections 302,
376(2)(g), 364 and 404 of the IPC. The accused-appellants pleaded not
guilty to the aforesaid charges and thus, the case was committed to trial.
During the course of the Trial, the prosecution examined 29 witnesses of
which 11 were examined on the aspect of circumstantial evidence and 2 were
doctors to establish the factum of rape and murder. PW-1, the Police Patil
who registered the complaint personally, maintained his version as stated
in the FIR, dated 02.11.2007, that PW-8 was the person who found the body
of the deceased and informed the complainant of the same. PW-12, the
brother-in-law of the deceased, deposed that he was the last person to see
the latter alive and that too in the company of the accused-appellants. The
statement of PW-14, that he was the last person to talk to the deceased
between 10:30 p.m. and 11:00 p.m., was supported by documentary evidence,
i.e. call records. The evidence of PW-12, PW-13 and PW-14, in respect of
the whereabouts of the deceased on the fateful night, and with regard to
the identity of the accused-appellants was found to be consistent and
trustworthy. Furthermore, based on the confessional statements of the
accused-appellants, the police were able to recover the vehicle, the items
stolen from the body of the deceased as well as the Odhani of the deceased,
which was found to be one of the tools used to commit murder, i.e. by way
of strangulation. The Odhani and clothes of the deceased that was
recovered, after chemical analysis, was found to contain semen stains of
both the accused-appellants. Further that, on the basis of the vaginal swab
taken during the post-mortem examination and the report of the Chemical
Analyzer, it has been shown that semen of both the accused-appellants was
found in the said swab as well.
The Sessions Court, upon meticulous consideration of the material on record
and the submissions made by the parties, observed that the evidence of the
prosecution formed a chain so complete that it excluded any hypothesis
other than the guilt of the accused-appellants. It concluded that the
testimonies of PW-12, PW-13, PW-14, PW-1 and PW-11 are true and reliable
and that the same along with the evidence of PW-16, the post-mortem report
and the report of the Chemical Analyzer support the case of the
prosecution. The Sessions Court has noticed that the evidence of PW-12,
which states that the deceased was last seen in the company of accused-
appellants, coupled with the lack of explanation for the same by the
accused-appellants in their statements under Section 313 of the Code,
provides a firm link in the chain of circumstances. The Sessions Court
observed that the accused-appellants have failed miserably in discharging
their burden of proving that the deceased was not in their company or that
their cab suffered a punctured tyre. Further, that the recoveries made at
the instance of the accused-appellants, including the vehicle in question,
the belongings of the deceased in the respective houses of the accused-
appellants, the Odhani of the deceased which was used as a weapon of murder
along with the medical evidence and testimony of PW-16 establish the factum
of commission of the crime by the accused-appellants. The subsequent
conduct of the accused-appellants, where they continued to pick-up PW-11
and lied to him about the cause of the delay and the whereabouts of the
deceased, has been found to be compatible with their guilt and in
consonance with their meticulously chalked out plan for the commission of
the offence of gang-rape and murder. Therefore, in light of the aforesaid,
the Sessions Court concluded that the chain of circumstances evince beyond
any reasonable doubt that the accused-appellants have committed the heinous
offence of rape and murder of the deceased.
With regard to the quantum of sentence, the Sessions Court noticed the well-
settled principles laid down by this Court in Bachan Singh v. State of
Punjab, (1980) 2 SCC 684; Macchi Singh and Ors. v. State of Punjab, (1983)
3 SCC 470; Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220;
Devender Pal Singh v. State of NCT of Delhi, (2002) 5 SCC 234; Aqeel Ahmed
v. State of UP, (2008) 16 SCC 372 and Atbir Singh v. Govt. of NCT of Delhi,
(2010) 9 SCC 1. Further, on due consideration to the aggravating and
mitigating circumstances present in the facts of the case, the Sessions
Court observed that the balance was clearly tilting against the accused-
appellants. After affording an opportunity of hearing to the accused-
appellants on the question of sentence, the Sessions Court has awarded them
death sentence and fine of Rs.5,000/- each for the offence punishable under
Section 120-B of the IPC, death sentence and fine of Rs.5,000/- each for
the offence punishable under Section 302 read with Section 120-B of the
IPC; imprisonment for life and fine of Rs.5,000/- for the offence
punishable under Section 376(2)(g) read with Section 120-B of the IPC;
imprisonment for life and fine of Rs.5,000/- each for the offence
punishable under Section 364 read with Section 120-B of the IPC; and
rigorous imprisonment for two years and a fine of Rs.10,000/- each for the
offence punishable under Section 404 read with Section 120-B of the IPC.
The Sessions Court, in its order of sentence, has noticed that the accused-
appellants committed and executed the heinous offences in a pre-planned and
meticulous manner which showed the determination of both the accused to
complete the crime and take away the life of the accused. The Sessions
Court observed that the extreme depravity with which the offences were
committed and the merciless manner in which the deceased was raped and done
to death, coupled with the gross abuse of the position of trust held by the
Accused No.1 and the lack of remorse or repentance for any of their
actions, would clearly indicate that the given case was fit to be placed
within the category of “rarest of rare” and the only punishment
proportionate to the brutality exhibited by the accused-appellants would be
the death penalty.
Aggrieved by the aforesaid judgment and order, the accused-appellants filed
an appeal before the High Court which was heard along with the Reference
for confirmation of death sentence under Section 366 Code of Criminal
Procedure, 1973 (for short, “the Code”) and disposed of by a common
judgment and order, dated 12.09.2012, 13.09.2012, 24.09.2012 and
25.09.2012.
The High Court has, vide the impugned judgment and order, elaborately dealt
with the entire evidence on record and extensively discussed the judgment
and order of the Sessions Court in order to ascertain the correctness or
otherwise of the conviction and sentence awarded to the accused-appellants.
The High Court has carefully examined the evidence on record including
testimonies of the Prosecution Witnesses and recorded the finding that the
said statements do not reflect any discrepancy or inconsistency of facts
and therefore must be considered as cogent, reliable and incontrovertible
evidence. Further, that the medical evidence and the deposition by PW-16,
i.e. the doctor who conducted the post-mortem examination, clearly
indicates the commission of the offence of rape and the brutal murder of
the deceased. The High Court has taken note of the statement of the PW-16
that the probable cause of death was shock and hemorrhage due to grievous
injury to vital organs with skull fracture involving frontal, left
temporal, parietal bone with laceration to brain, fracture to the ribs and
right lung rupture with strangulation, and further that the strangulation
was committed by overpowering the deceased suddenly from behind. On the
basis of the medical report as well as the Chemical Analyzer’s report, the
High Court has observed that the factum of commission of the offence of
rape by the Accused No.1 and 2 has been conclusively proved. The High Court
has recorded that the recovery of weapons of murder from the place where
the body of the deceased was located as well as from the house of the
Accused No.1, the latter being at the instance of a confession by the said
accused, has also been established beyond any shadow of doubt. In light of
the chain of circumstantial evidence having been established beyond any
reasonable doubt, the High Court has concluded towards the guilt of accused-
appellants and confirmed the judgment of conviction passed by the Sessions
Court.
With respect of the quantum of sentence, the High Court has noticed the
well-settled law laid down by this Court and concluded that the present
case falls under the category of “rarest of rare”. The High Court has
observed that the heinous acts have been committed by the accused-
appellants in a diabolical and cold-blooded manner without any hesitation
and undeterred by its consequences. Further, that the manner of commission
of the offence coupled with their subsequent conduct obliterates any chance
of reformation and that there is no guarantee that the accused-appellants
would not commit the same or similar offence if they were released.
Therefore, the High Court confirmed the death sentence awarded by the
Sessions Court.
The accused-appellants, aggrieved by the aforesaid confirmation of death
sentence awarded to them, are before us in this appeal.
At the outset, it would be pertinent to note that this Court has issued
notice on the limited issue of the sentence, by order dated 04.07.2013.
Therefore, the learned counsel would limit her case only to the question of
determination of quantum of sentence awarded by the Courts below and seek
for commutation of the said sentence.
Learned counsel for the accused-appellants would vehemently argue in favour
of commutation of the death sentence awarded to the appellants as the case
did not fall within the purview of “rarest of rare” cases. Further, she
would submit that, in the present case, the mitigating circumstances
outweighed the aggravating circumstances, namely that the age of the
accused-appellants, the absence of any criminal antecedents and the
possibility that they could be reformed and rehabilitated would reflect
that a sentence of life imprisonment would suffice the ends of justice. Per
contra, the learned counsel for the respondent-State would seek to support
the judgment and order passed by the High Court and Sessions Court.
We have given our anxious consideration to the arguments advanced by
learned counsel for the parties to the appeal and also carefully
scrutinized the evidence on record as well as the judgment(s) and order(s)
passed by the Courts below.
We do not intend to saddle the judgment with the settled position of law in
respect of the sentencing policy and the principles evolved by this Court
for weighing the aggravating and mitigating factors in specific facts of
the case. However, it would be apposite to notice the decision of this
Court in the case of Bachan Singh (supra), wherein the constitutional
validity of the provisions that authorize the Trial Court to award death
sentence for the offence punishable under Section 302 of the IPC and other
offences was upheld. However, this Court observed that there can be no
strait jacket formula which can be applied in each case and that while
considering the sentence to be awarded, the Court must look into the
aggravating and mitigating circumstances. The ratio of the decision in
Bachan Singh (supra) has been followed in the case of Machhi Singh (supra)
wherein this Court held that the manner of commission, motive for
commission, anti-social nature of crime, magnitude of crime and personality
of victim ought to be kept in mind while awarding an appropriate sentence.
It was held that a balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so, the mitigating
circumstances have to be accorded full weightage and a balance has to be
struck.
It is an established position that law regulates social interests and
arbitrates conflicting claims and demands. Security of persons is a
fundamental function of the State which can be achieved through
instrumentality of criminal law. The society today has been infected with a
lawlessness that has gravely undermined social order. Protection of society
and stamping out criminal proclivity must be the object of law which may be
achieved by imposing appropriate sentence. Therefore, in this context, the
vital function that this Court is required to discharge is to mould the
sentencing system to meet this challenge. The facts and given circumstances
in each case, the nature of the crime, the manner in which it was planned
and committed, the motive for commission of the crime, the conduct of the
accused and all other attending circumstances are relevant facts which
would enter into the area of consideration. Based on the facts of the case,
this Court is required to be stern where it should be and tempered with
mercy where warranted.
In this context, it would be profitable to notice the manner in which this
Court has considered the sentencing policy vis-à-vis certain aggravating
and mitigating circumstances.
In the case of Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257, this
Court referred to the Bachan Singh case (supra) and Machhi Singh case
(supra) to cull out certain principles governing aggravating and mitigating
circumstances. It would be beneficial to refer to the same hereinbelow:
“Aggravating circumstances
(1) The offences relating to the commission of heinous crimes like murder,
rape, armed dacoity, kidnapping, etc. by the accused with a prior record of
conviction for capital felony or offences committed by the person having a
substantial history of serious assaults and criminal convictions.
(2) The offence was committed while the offender was engaged in the
commission of another serious offence.
(3) The offence was committed with the intention to create a fear psychosis
in the public at large and was committed in a public place by a weapon or
device which clearly could be hazardous to the life of more than one
person.
(4) The offence of murder was committed for ransom or like offences to
receive money or monetary benefits.
(5) Hired killings.
(6) The offence was committed outrageously for want only while involving
inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful custody.
(8) The murder or the offence was committed to prevent a person lawfully
carrying out his duty like arrest or custody in a place of lawful
confinement of himself or another. For instance, murder is of a person who
had acted in lawful discharge of his duty under Section 43 CrPC.
(9) When the crime is enormous in proportion like making an attempt of
murder of the entire family or members of a particular community.
(10) When the victim is innocent, helpless or a person relies upon the
trust of relationship and social norms, like a child, helpless woman, a
daughter or a niece staying with a father/uncle and is inflicted with the
crime by such a trusted person.
(11) When murder is committed for a motive which evidences total depravity
and meanness.
(12) When there is a cold-blooded murder without provocation.
(13) The crime is committed so brutally that it pricks or shocks not only
the judicial conscience but even the conscience of the society.
Mitigating circumstances
(1) The manner and circumstances in and under which the offence was
committed, for example, extreme mental or emotional disturbance or extreme
provocation in contradistinction to all these situations in normal course.
(2) The age of the accused is a relevant consideration but not a
determinative factor by itself.
[pic] (3) The chances of the accused of not indulging in commission of the
crime again and the probability of the accused being reformed and
rehabilitated.
(4) The condition of the accused shows that he was mentally defective and
the defect impaired his capacity to appreciate the circumstances of his
criminal conduct.
(5) The circumstances which, in normal course of life, would render such a
behaviour possible and could have the effect of giving rise to mental
imbalance in that given situation like persistent harassment or, in fact,
leading to such a peak of human behaviour that, in the facts and
circumstances of the case, the accused believed that he was morally
justified in committing the offence.
(6) Where the court upon proper appreciation of evidence is of the view
that the crime was not committed in a preordained manner and that the death
resulted in the course of commission of another crime and that there was a
possibility of it being construed as consequences to the commission of the
primary crime.
(7) Where it is absolutely unsafe to rely upon the testimony of a sole
eyewitness though the prosecution has brought home the guilt of the
accused.”
Further, it has been held by this Court that undue sympathy to impose
inadequate sentence would do more harm to the justice system by undermining
the public [pic]confidence in the efficacy of law [See Mahesh v. State of
M.P., (1987) 3 SCC 80; Sevaka Perumal v. State of T.N., (1991) 3 SCC 471
and Mofil Khan v. State of Jharkhand, (2015) 1 SCC 67]. To give the lesser
punishment for the accused would be to render the judicial system of the
country suspect. If the courts do not protect the injured, the injured
would then resort to private vengeance. It is, therefore, the duty of every
court to award proper sentence having regard to the nature of the offence
and the manner in which it was executed or committed etc.
In the case of B.A. Umesh v. High Court of Karnataka, (2011) 3 SCC 85, the
appellant was accused of a brutal rape and murder of a lady. It was found,
by medical evidence, that the deceased therein was a victim of a violent
rape prior to death and the death was caused due to as asphyxiation.
Further, the medical report found that the body of the deceased has several
abrasions and lacerations. This Court, noticing the brutal and violent
manner of commission of the offences confirmed the death sentence to the
accused therein. It was held that:
“84. As has been indicated by the courts below, the antecedents of the
appellant and his subsequent conduct indicates that he is a menace to the
society and is incapable of rehabilitation. The offences committed by the
appellant were neither under duress nor on provocation and an innocent life
was snuffed out by him after committing violent rape on the victim. ...”
In the Sevaka Perumal case (supra), the counsel for the appellants therein
contended that considering the young age of the accused, the same would be
a strong mitigating factor in favour of commutation of death sentence. It
was contended therein that the accused were the breadwinners of their
family which consisted of a young wife, minor child and aged parents.
However, this Court, finding no force in the said contention, observed that
such compassionate grounds are present in most cases and are not relevant
for interference in awarding death sentence. The principle that when the
offence is gruesome and was committed in a calculated and diabolical
manner, the age of the accused may not be a relevant factor, was further
affirmed by a three-Judge Bench of this Court in Mofil Khan case (supra).
In view of the aforesaid decisions highlighting the approach of this Court,
we would now consider the decision of the Courts below, in the present
case. The Sessions Court has noticed a similarity with the present case and
the decision of this Court in the case of Dhananjoy Chatterjee (supra).
Therefore, in light of the same, the Sessions Court has held that the
present case would merit a sentence of death penalty and no less. The
Session Court has observed:
“... In present case, accused driver alongwith co-accused committed rape
and murder of helpless and defenceless young girl who was reposing complete
faith and trust on them by carefully planning the crime and executing it in
barbaric manner. Taking the verdict in the matter of Dhananjoy Chatterjee
(supra) as yardstick, there is no hesitation to put on record that the case
at hand is the rarest of rare case warranting nothing else but the death
penalty to the accused persons. ...”
The High Court, by the impugned judgment and order, has concurred with the
findings recorded by the Sessions Court in respect of the chain of
circumstances being clearly and incontrovertibly established by the
prosecution. With regard to the balance sheet of aggravating and mitigating
circumstances, the High Court has, in addition to the finding and
observations of the Sessions Court, held that the aggravating circumstances
far outweigh the mitigating circumstances. Therefore, the High Court has
recorded that there is no alternative but to confirm the death sentence as
awarded by the Sessions Courts.
At this juncture, it would be pertinent to notice the Dhananjoy Chatterjee
case (supra). As noticed above, the said case has been noticed by the
Sessions Court, in the present case, as bearing great similarity to the
facts herein. In the Dhananjoy Chatterjee case (supra), the accused was
convicted for the brutal rape and murder of a young girl aged about 18
years. The accused-therein was employed as a security guard of the building
where the deceased resided and therefore was entrusted with the noble task
of ensuring her safety and security. The reasoning therein has been
instrumental in moulding the sentencing policy of this Court and therefore
it would be gainful to reproduce the relevant paragraphs from the said case
below:
“15. In our opinion, the measure of punishment in a given case must depend
upon the atrocity of the crime; the conduct of the criminal and the
defenceless and unprotected state of the victim. Imposition of appropriate
punishment is the manner in which the courts respond to the society’s cry
for justice against the criminals. Justice demands that courts should
impose punishment befitting the crime so that the courts reflect public
abhorrence of the crime. The courts must not only keep in view the rights
of the criminal but also the rights of the victim of crime and the society
at large while considering imposition of appropriate punishment.
16. The sordid episode of the security guard, whose sacred duty was to
ensure the protection and welfare of the inhabitants of the flats in the
apartment, should have subjected the deceased, a resident of one of the
flats, to gratify his lust and murder her in retaliation for his transfer
on her complaint, makes the crime even more heinous. Keeping in view the
medical evidence and the state in which the body of the deceased was found,
it is obvious that a most heinous type of barbaric rape and murder was
committed on a helpless and defenceless school-going girl of 18 years. If
the security guards behave in this manner who will guard the guards? The
faith of the society by such a barbaric act of the guard, gets totally
shaken and its cry for justice becomes loud and clear. The offence was not
only inhuman and barbaric but it was a totally ruthless crime of rape
followed by cold blooded murder and an affront to the human dignity of the
society. The savage nature [pic]of the crime has shocked our judicial
conscience. There are no extenuating or mitigating circumstances whatsoever
in the case. We agree that a real and abiding concern for the dignity of
human life is required to be kept in mind by the courts while considering
the confirmation of the sentence of death but a cold blooded preplanned
brutal murder, without any provocation, after committing rape on an
innocent and defenceless young girl of 18 years, by the security guard
certainly makes this case a “rarest of the rare” cases which calls for no
punishment other than the capital punishment and we accordingly confirm the
sentence of death imposed upon the appellant for the offence under Section
302 IPC. The order of sentence imposed on the appellant by the courts below
for offences under Sections 376 and 380 IPC are also confirmed along with
the directions relating thereto as in the event of the execution of the
appellant, those sentences would only remain of academic interest. This
appeal fails and is hereby dismissed.”
It would now be necessary for this Court to consider the balance sheet of
aggravating and mitigating circumstances. In the instant case, the learned
counsel for the accused-appellants has laid stress upon the age of the
accused persons, their family background and lack of criminal antecedents.
Further, the learned counsel has fervently contended that the accused-
appellants are capable of reformation and therefore should be awarded the
lighter punishment of life imprisonment.
In our considered view, in the facts of the present case, age alone cannot
be a paramount consideration as a mitigating circumstance. Similarly,
family background of the accused also could not be said to be a mitigating
circumstance. Insofar as Accused No.1 is concerned, it has been contended
that he was happily married and his wife was pregnant at the relevant time.
However, the Accused No.1 did not take into consideration the condition of
his wife or his mother while committing the said offence and, as a result,
his wife deserted him and his widowed mother is being looked after by his
nephew and niece. Insofar as Accused No.2 is concerned, he has two sisters
who are looking after his widowed mother. Lack of criminal antecedents also
cannot be considered as mitigating circumstance, particularly taking into
consideration, the nature of heinous offence and cold and calculated manner
in which it was committed by the accused persons.
In our considered view, the “rarest of the rare” case exists when an
accused would be a menace or, threat to and incompatible with harmony in
the society. In a case where the accused does not act on provocation or on
the spur of the moment, but meticulously executes a deliberate, cold-
blooded and pre-planned crime, giving scant regard to the consequences of
the same, the precarious balance in the sentencing policy evolved by our
criminal jurisprudence would tilt heavily towards the death sentence. This
Court is mindful of the settled principle that criminal law requires strict
adherence to the rule of proportionality in awarding punishment, and the
same must be in accordance with the culpability of the criminal act.
Furthermore, this Court is also conscious to the effect, of not awarding
just punishment, on the society.
In the present factual matrix, Accused No.1 abducted the deceased with help
of Accused No.2, and subsequently they raped and murdered her. They did not
show any regret, sorrow or repentance at any point of time during the
commission of the heinous offence, nor thereafter, rather they acted in a
disturbingly normal manner after commission of crime. It has been
established by strong and cogent evidence that after the commission of the
gruesome crime, Accused No.2 accompanied Accused No.1 for the second pick
up and exited the cab only prior to reaching the gate of the Company.
Further, it has been brought on record that the Accused No.1 attempted to
create false record of the whereabouts of the cab and the cause of the
delay in arriving at the workplace. In addition, it has been noticed that
even though the accused-appellants were seen by PW-12, that the deceased
repeatedly questioned them of the unusual route, or that the deceased was
talking to a friend on the phone during the journey, nothing deterred them
from committing the heinous offences. In fact the Sessions Court has
noticed that during the commission of the offences, the accused-appellants
were contacted by PW-11 seeking an explanation for the delay in picking him
up, however even this did not deter them.
Thus, the manner in which the commission of the offence was so meticulously
and carefully planned coupled with the sheer brutality and apathy for
humanity in the execution of the offence, in every probability they have
potency to commit similar offence in future. It is clear that both the
accused persons have been proved to be a menace to society which strongly
negates the probability that they can be reformed or rehabilitated. In our
considered opinion, the mitigating circumstances are wholly absent in the
present factual matrix. This appeal is not a case where the offence was
committed by the accused persons under influence of extreme mental or
emotional disorder, nor is it a case where the offence may be argued to be
a crime of passion or one committed at the spur of the moment. There is no
question of accused persons believing that they were morally justified in
committing the offence on helpless and defenceless young woman.
Therefore, in view of the above and keeping the aforesaid principle of
proportionality of sentence in mind, this Court is in agreement with the
reasoning of the Courts below that the extreme depravity with which the
deceased was done to death coupled with the other factors including the
position of trust held by the Accused No.1, would tilt the balance between
the aggravating and mitigating circumstances greatly against the accused-
appellants. The gruesome act of raping a victim who had reposed her trust
in the accused followed by a cold-blooded and brutal murder of the said
victim coupled with the calculated and remorseless conduct of the accused
persons after the commission of the offence, we cannot resist from
concluding that the depravity of the appellants’ offence would attract no
lesser sentence than the death penalty.
In addition to the above, it would be necessary for this Court to notice
the impact of the crime on the community and particularly women working in
the night shifts at Pune, which is considered as a hub of Information
Technology Centre. In recent years, the rising crime rate, particularly
violent crimes against women has made the criminal sentencing by the Courts
a subject of concern. The sentencing policy adopted by the Courts, in such
cases, ought to have a stricter yardstick so as to act as a deterrent.
There are a shockingly large number of cases where the sentence of
punishment awarded to the accused is not in proportion to the gravity and
magnitude of the offence thereby encouraging the criminal and in the
ultimate making justice suffer by weakening the system’s credibility. The
object of sentencing policy should be to see that the crime does not go
unpunished and the victim of crime as also the society has the satisfaction
that justice has been done to it. In the case of Machhi Singh (supra), this
Court observed that the extreme punishment of death would be justified and
necessary in cases where the collective conscience of society is so shocked
that it will expect the holders of judicial power to inflict death penalty
irrespective of their personal opinion.
It is true that any case of rape and murder would cause a shock to the
society but all such offences may not cause revulsion in society. Certain
offences shock the collective conscience of the court and community. The
heinous offence of gang-rape of an innocent and helpless young woman by
those in whom she had reposed trust, followed by a cold-blooded murder and
calculated attempt of cover-up is one such instance of a crime which shocks
and repulses the collective conscience of the community and the court.
Therefore, in light of the aforesaid settled principle, this Court has no
hesitation in holding that this case falls within the category of “rarest
of rare”, which merits death penalty and none else. The collective
conscience of the community is so shocked by this crime that imposing
alternate sentence, i.e. a sentence of life imprisonment on the accused
persons would not meet the ends of justice. Rather, it would tempt other
potential offenders to commit such crime and get away with the
lesser/lighter punishment of life imprisonment.
In the result, after having critically appreciated the entire evidence on
record as well as the judgments of the Courts below in great detail, we are
in agreement with the reasons recorded by the trial court and approved by
the High Court while awarding and confirming the death sentence of the
accused-appellants. In our considered view, the judgment and order passed
by the Courts below does not suffer from any error whatsoever.
Therefore, this appeal is rejected and the sentence of death awarded to the
accused-appellants is confirmed. The judgment and order passed by the High
Court is accordingly affirmed.
The appeal is disposed of in the aforesaid terms.
Ordered accordingly.
.............CJI.
(H.L. DATTU)
...............J.
(S.A. BOBDE)
...............J.
(ARUN MISHRA)
NEW DELHI
May 08, 2015.
