REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
1 CRIMINAL APPEAL NOs. 1278-1279 OF 2010
Mohinder Singh .... Appellant(s)
Versus
State of Punjab .... Respondent(s)
2
J U D G M E N T
P.Sathasivam,J.
1) These appeals are filed against the common final judgment and order
dated 30.05.2008 passed by the High Court of Punjab and Haryana at
Chandigarh in Murder Reference No. 8 of 2007 and Criminal Appeal No. 1033-
DB of 2007 whereby
the High Court accepted the murder reference and
confirmed the death sentence imposed on the appellant herein by the
Sessions Judge, Ludhiana by order dated 22.11.2007 in Session Case No. 32
of 2006 and dismissed the appeal filed by him.
2) Brief facts:
(a) According to the prosecution,
on 08.01.2006,
the appellant-accused
has committed murder of his wife-Veena Verma and daughter-Geetu Verma
in the background of inimical relationship between them on account of criminal
cases registered against him by his wife
for committing rape on his minor daughter–Geetu Verma, for which he was sentenced to rigorous imprisonment
for 12 years, and for attacking her after release on parole in January, 2005 for which an FIR was registered against him.
(b) On the date of incident, i.e., 08.01.2006, at around 06:30 p.m., when
Shalu Verma-the complainant, daughter of the appellant-accused was present
along with her mother-Veena Verma and sister-Geetu Verma in their house at
village Partap Singh Wala, Haibowal, Ludhiana, at that time, the appellant-
accused, who was living separately in a rented accommodation, came to the
said place carrying a Kulhara (axe) in his hand.
The complainant informed
her mother about the same. When Veena Verma came to the lobby of the
house, the appellant-accused gave an axe blow on her head. She fell on
the ground and, thereafter, he gave two more blows using axe on her neck
and hand.
Immediately after that, he stepped towards Geetu Verma and gave
3 repeated blows on her head. Both of them smeared with blood and died on
the spot.
When he approached Shalu, she went into the room and bolted the
same from inside. The appellant-accused fled away leaving the axe at the
spot.
After sometime, she came outside the room and raised hue and cry.
(c) On the basis of the statement of Shalu (PW-2), a First Information
Report (FIR) being No. 6 was registered against the appellant-accused under
Section 302 of the Indian Penal Code, 1860 (in short “the IPC”) at P.S.
Haibowal, Ludhiana. On the same day, the appellant-accused was arrested
from his rented house and the case was committed to the Court of Session,
Ludhiana and numbered as Session Case No. 32 of 2006
(d) The Sessions Judge, Ludhiana, by order dated 22.11.2007, convicted
the appellant under Section 302 of IPC and sentenced him to death.
(e) Against the said order, the appellant preferred an appeal before the
High Court and the State filed a reference under Section 366 of the Code of
Criminal Procedure, 1973 (in short ‘the Code’) for confirmation of death
sentence. By a common impugned order dated 30.05.2008, the High Court
while accepting the murder reference confirmed the death reference imposed
by the trial Court and dismissed the appeal filed by the appellant-accused.
(f) Aggrieved by the said judgment, the appellant preferred these appeals
by way of special leave before this Court.
(g) This Court, by order dated 20.07.2009, issued notice on the special
leave petitions confining to sentence only. Even on 16.07.2010 when this
Court granted leave, nothing has been stated about the above said initial
notice.
Hence, in these appeals, we are concerned about the quantum of sentence imposed on the appellant.
3) Heard Mr. Tripurari Raj, learned counsel for the appellant and Mr. V.
Madhukar, learned Additional Advocate General for the respondent-State.
4) Though at the outset, learned counsel for the appellant insisted us
to go into the entire merits of the case including the circumstances relied
on by the prosecution and accepted by the Courts below, in view of the fact
that this Court has issued notice confining to sentence only, we rejected
his plea.
5) We are conscious of the fact that in terms of Section 366(1) of the
Code, when the Court of Session passes a sentence of death, the proceedings
shall be submitted to the High Court, and the sentence shall not be
executed unless it is confirmed by the High Court.
The scope and
application of the above section is only in cases where a sentence of death
has been passed by the Court of Session. The Court of Session should refer
the proceedings to the High Court and the High Court can only deal with
them as a Court of reference.
It is the practice of the High Court to be
satisfied on the facts as well as the law of the case, that the conviction
is right, before it proceeds to confirm that sentence. In other words, the
High Court has to come to its own independent conclusion as to the guilt or
innocence of the accused, independently of the opinion of the Judge. In a
reference for confirmation of death sentence, the High Court must examine
the entire evidence for itself independent of the Session Court’s views.
While confirming the capital sentence, the High Court is under an
obligation to itself consider what sentence should be imposed and not be
content with the trial Court’s decision on the point unless some reason is
shown for reducing the same.
Where, in addition to an appeal filed by an
accused sentenced to death, the High Court has to dispose of the reference
for confirmation of death sentence under Section 366 of the Code, the High
Court, while dealing with reference, should consider the proceedings in all
its aspects and come to an independent conclusion on the material on record
apart from the views expressed by the Sessions Judge.
The confirmation of
death sentence cannot be based only on the precedents and or aggravating
facts and circumstances of any other case.
6) Keeping the above principles in mind, let us analyze the materials
placed before the trial Judge as well as the confirmation order of the High
Court. In view of the limited notice and in the light of the mandates
provided under Section 366 of the Code relating to confirmation of death
sentence by the High Court, we are of the view that considering two earlier
orders passed by this Court on 20.07.2009 and 16.07.2010 confining to the
sentence, we intend to concentrate only to the question, namely,
acceptability or otherwise of the “sentence” hereunder.
7) No doubt, it is a case of double murder by the appellant-accused who
murdered his wife and daughter in a gruesome manner in the background of
inimical relationship between the family on account of criminal cases
registered against the appellant-accused at the instance of his deceased
wife – Veena Verma and deceased daughter- Geetu Verma for which he was
sentenced to rigorous imprisonment for 12 years’ for committing rape on his
daughter-Geetu Verma. In that case his deceased wife was a witness. It is
seen that after release on parole in January, 2005, he attacked on his wife
and an FIR was registered against him for violating the conditions of
release. It is further seen that the accused committed the offence in the
presence of his youngest daughter Shalu (PW-2). It is also proved that the
appellant had entered the scene of occurrence to commit the said offence
carrying a deadly weapon i.e. ‘Kulhara’ (Axe) which was used in the
commission of both the killings. The members present in the house were his
family members, viz., wife and two daughters.
8) We noticed the following special reasons given by the trial Court for
warranting the death sentence and the High Court for confirming the same
which are as follows:
i) The appellant-accused had earlier committed rape on his deceased
daughter – Geetu Verma in the year 1999 when she was a minor after giving
beatings and threat to her and in that case his wife-Veena Verma (since
deceased) was a witness and that a case under Sections 376 and 506 IPC was
registered against him which finally resulted in rigorous imprisonment for
12 years.
ii) While on parole in January 2005, the appellant-accused having
violated the conditions of release, attacked his wife-Veena Verma and an
FIR being No. 58 dated 06.04.2005 was registered against him under Sections
323, 324 and 506 IPC which is pending in the Court of JMIC, Ludhiana on the
date of alleged occurrence.
iii) The appellant-accused entered into the house with a deadly weapon
‘Kulhara’ (Axe) and caused unprovoked brutal attacks on the victims.
iv) The appellant-accused caused repeated blows on the vital parts of the
body of his wife and daughter resulting in instantaneous deaths in the
presence of his youngest daughter of tender age, who by running into a room
and bolting its from inside, saved herself when the accused proceeded
towards her.
v) The appellant-accused gave first blow to his wife – Veena Verma from
behind with Kulhara (axe) on her head and when she fell down on the ground
he caused successive blows on her neck and the head and, thereafter, he
attacked his daughter–Geetu Verma and caused repeated Kulhara blows till
her death. Thereafter, he proceeded towards his youngest daughter Shalu
(PW-2) and showed Kulhara to her, who ran into a room and bolted it from
inside.
vi) In the case of the deceased - Veena Verma, out of 4 incised wounds,
Injury Nos. 1 & 2 were caused on head, Injury No.3 on neck and Injury No. 4
resulted in partial amputation of left index finger from 1/3rd with clean
cut margins. Regarding the deceased - Geetu Verma, who had been earlier
subjected to diabolical act of rape by the appellant-accused during her
minority in 1999, as many as 9 injuries were caused, out of which 7 were
incised wounds and 2 were abrasions. Further, out of 7 incised wounds 3
had been caused on head region itself, 1 on the left mastoid and rest 3 on
left and right elbow and fingers. In both the cases, the victims died
instantaneous death.
vii) Apart from taking revenge for his conviction and sentence, the
appellant-accused has committed the offence for personal gain as he wanted
the house, being occupied by his deceased wife and children, to be vacated
for his personal use.
9) The crime of double murder of his wife and daughter in a gruesome and
diabolical manner will irrefutably be taken into consideration as
aggravating circumstance. However, for some reasons, the High Court did
not find any mitigating circumstance in favour of the accused for the
purpose of balancing aggravating against mitigating. Even, the High Court
recorded at page 38 of the impugned order as under:-
“… In this background, looking for a strong mitigating circumstance,
may not yield any result and this offence has in fact, ceased to
remain a simple case of murder. This has rather acquired an enormity
to the extent of rushing into the category of the “rarest of rare
case.”
It is pertinent to mention that in spite of the onerous duty bestowed on
the reference court to balance the aggravating and mitigating
circumstances, the High Court evaded the same.
10) On the other hand, the Sessions Court had attempted to draw a balance
of aggravating and mitigating circumstances by stating two mitigating
circumstances as follows:
1. Firstly, his age at the time of commission of crime i.e. 41
years.
2. Secondly, that the accused is a poor man, who had no livelihood.
While it is true that the above two circumstances alone will not make good
for commuting the death sentence to life sentence,
however, before we move
on to enumerate the other mitigating circumstances in this case, it is
necessary to consider few case laws which reiterate that brutality is not
the sole criterion of determining whether a case falls under the “rarest of
rare” categories.
11) In Panchhi & Ors. vs. State of U.P., (1998) 7 SCC 177,
this Court
held that brutality is not the sole criterion of determining whether a case
falls under the “rarest of rare” categories, thereby justifying the
commutation of a death sentence to life imprisonment. This Court observed:
“No doubt brutality looms large in the murders in this case
particularly of the old and also the tender age child. It may be that
the manner in which a murder was perpetrated may be a ground but not
the sole criterion for judging whether the case is one of the “rarest
of rare cases” as indicated in Bachan Singh’s case.”
12) The Constitution Bench of this Court, by a majority, upheld the constitutional validity of death sentence in Bachan Singh vs. State of Punjab, (1980) 2 SCC 684.
This Court took particular care to say that
death sentence shall not normally be awarded for the offence of murder and
that it must be confined to the “rarest of rare” cases when the alternative
option is foreclosed.
In other words, the Constitution Bench did not find
death sentence valid in all cases except in the aforesaid cases wherein the
lesser sentence would be wholly inadequate.
13) In Machhi Singh and Ors. vs. State of Punjab, (1983) 3 SCC 470, a
three-Judge Bench of this Court while following the ratio in Bachan Singh
(supra) laid down certain guidelines amongst which the following is
relevant in the present case:
“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.”
14) We have extracted the above reasons of the two courts only to point
out that, in a way, every murder is brutal, and the difference between the one from the other may be on account of mitigating or aggravating features surrounding the murder.
15) In the instant case, as already mentioned, the accused had earlier
committed rape on his deceased daughter-Geetu Verma in 1999 and in that
case, his deceased wife - Veena Verma was a witness wherein the accused was
convicted under Sections 376 and 506 IPC and sentenced to RI for 12 years.
It is also subsequently taken on record that his deceased wife sent the
accused out of his house and as a consequence, he had to live separately in
a rented house with no means of livelihood. It was thirst for retaliation,
which became the motivating factor in this case. In no words are we
suggesting that the motive of the accused was correct rather we feel it
does not come within the category of “rarest of rare” case to award death
penalty.
16) The doctrine of “rarest of rare” confines two aspects
and
when both
the aspects are satisfied only then the death penalty can be imposed.
Firstly, the case must clearly fall within the ambit of “rarest of rare”
and secondly, when the alternative option is unquestionably foreclosed.
Bachan Singh (supra) suggested selection of death punishment as the penalty
of last resort when, alternative punishment of life imprisonment will be
futile and serves no purpose.
17) In life sentence, there is a possibility of achieving deterrence,
rehabilitation and retribution in different degrees. But the same does not
hold true for the death penalty.
It is unique in its absolute rejection of
the potential of convict to rehabilitate and reform.
It extinguishes life
and thereby terminates the being, therefore, puts an end anything to do
with the life.
This is the big difference between two punishments.
Thus,
before imposing death penalty, it is imperative to consider the same.
18) “Rarest of rare” dictum, as discussed above, hints at this difference
between death punishment and the alternative punishment of life
imprisonment. The relevant question here would be to determine whether
life imprisonment as a punishment would be pointless and completely devoid
of any reason in the facts and circumstances of the case. As discussed
above, life imprisonment can be said to be completely futile, only when the
sentencing aim of reformation can be said to be unachievable. Therefore,
for satisfying the second aspect to the “rarest of rare” doctrine, the
court will have to provide clear evidence as to why the convict is not fit
for any kind of reformatory and rehabilitation scheme.
19) Treating the case on the touchstone of the guidelines laid down in
Bachan Singh (supra), Machhi Singh (supra) and other decisions and
balancing the aggravating and mitigating circumstances emerging from the
evidence on record,
we are not persuaded to accept that the case can
appropriately be called the “rarest of rare” case warranting death penalty.
We also find it difficult to hold that the appellant is such a dangerous
person that sparing his life will endanger the community.
We are also not
satisfied that the circumstances of the crime are such that there is no
other alternative but to impose death sentence even after according maximum
weightage to the mitigating circumstances in favour of the accused. In our
considered view, this case is the one in which humanist approach must be
taken in the matter of awarding punishment.
20) It is well settled law that awarding of life sentence is a rule and death is an exception.
The application of the “rarest of rare” case
principle is dependant upon and differs from case to case. However, the
principles laid down and reiterated in various decisions of this Court show
that in a deliberately planned crime, executed meticulously in a diabolic
manner, exhibiting inhuman conduct in a ghastly manner, touching the
conscience of everyone and thereby disturbing the moral fiber of the
society, would call for imposition of capital punishment in order to ensure
that it acts as a deterrent. While we are convinced that the case of the
prosecution based on the evidence adduced confirms the commission of
offence by the appellant, however, we are of the considered opinion that
still the case does not fall within the four corners of the “rarest of
rare” case.
21) Life imprisonment cannot be equivalent to imprisonment for 14 years or 20 years or even 30 years, rather it always means the whole natural life.
This Court has always clarified that the punishment of a fixed term of
imprisonment so awarded would be subject to any order passed in exercise of
clemency powers of the President of India or the Governor of the State, as
the case may be. Pardons, reprieves and remissions under Article 72 or
Article 161 of the Constitution of India are granted in exercise of
prerogative power. As observed in State of Uttar Pradesh vs. Sanjay Kumar,
(2012) 8 SCC 537,
there is no scope of judicial review of such orders
except on very limited grounds such as the non-application of mind while
passing the order, non-consideration of relevant material, or if the order
suffers from arbitrariness.
The power to grant pardons and to commute
sentences is coupled with a duty to exercise the same fairly, reasonably
and in terms of restrictions imposed in several provisions of the Code.
22) In order to check all arbitrary remissions, the Code itself provides
several conditions. Sub-sections (2) to (5) of Section 432 of the Code
lay
down basic procedure for making an application to the appropriate
Government for suspension or remission of sentence either by the convict or
someone on his behalf.
We are of the view that exercise of power by the
appropriate Government under sub-section (1) of Section 432 of the Code
cannot be suo motu for the simple reason that this is only an enabling
provision and the same would be possible subject to fulfillment of certain
conditions.
Those conditions are mentioned either in the Jail Manual or in
statutory rules.
This Court in various decisions has held that the power
of remission cannot be exercised arbitrarily. In other words, the decision
to grant remission has to be well informed, reasonable and fair to all
concerned.
The statutory procedure laid down in Section 432 of the Code
itself provides this check on the possible misuse of power by the
appropriate Government.
As rightly observed by this Court in Sangeet and
Anr. vs. State of Haryana, 2012 (11) Scale 140,
there is misconception that
a prisoner serving life sentence has an indefeasible right to release on
completion of either 14 years or 20 years imprisonment.
A convict undergoing life imprisonment is expected to remain in custody till the end
of his life, subject to any remission granted by the appropriate Government
under Section 432 of the Code which in turn is subject to the procedural
checks mentioned in the said provision and further substantive check in
Section 433-A of the Code.
23) One significant factor in this case, which we should not loose sight
of is that he did not harm his other daughter, namely, Shallu (PW-2) even
though he had a good chance for the same.
Further, it was highlighted that
he being a poor man and unable to earn his livelihood since he was driven
out of his house by his deceased wife.
It is also his claim that if he was
allowed to live in the house, he could easily meet both his ends and means,
as the money which he was spending by paying rent would have been saved.
It is his further grievance that his deceased wife was adamant and he
should live outside and should not lead a happy married life and that was
the reason that their relations were strained.
This also shows that the
accused was feeling frustrated because of the attitude of his wife and
children.
Moreover, the probability of the offender’s rehabilitation and
reformation is not foreclosed in this case.
Likewise, we can see from the
affidavit filed by the sister of the accused that his family has not
totally renounced as yet.
This is also clear that pending the above
appeals, the appellant-accused, through his sister – Pramjit Kaur, filed an application for modification of earlier orders of this Court dated 20.07.2009 and 16.07.2010 for widening the scope of the appeals and sought permission to raise all available grounds.
For this application, only his
sister – Pramjit Kaur has filed an affidavit strengthening the above
points.
As mentioned above, the affidavit of his sister shows that his
family has not totally renounced him.
Hence, there is a possibility for
reformation in the present appellant. Keeping in mind all these materials,
we do not think that the present case warrants the award of the death
penalty.
24) For the reasons aforementioned, we are of the opinion that this is
not a case where death penalty should be imposed. The appellant-accused,
therefore, instead of being awarded death penalty, is sentenced to undergo
rigorous imprisonment for life, meaning thereby, the end of his life but
subject to any remission granted by the appropriate Government satisfying
the conditions prescribed in Section 432 of the Code and further
substantiate check under Section 433-A of the Code by passing appropriate
speaking orders. The appeals are disposed of on the above terms.
…………………..………….…………………………J.
(P. SATHASIVAM)
..……………….………….………………………..…J.
(FAKIR MOHAMED IBRAHIM KALIFULLA)
NEW DELHI;
JANUARY 28, 2013.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S).1278-1279 OF 2010
Mohinder Singh ….Appellant
VERSUS
State of Punjab ….Respondent
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. I had the opportunity of reading the judgment of my learned brother
Justice P. Sathasivam who has dealt with the issue in extenso while
modifying the death sentence to one of imprisonment for life i.e. till the
end of his life. I only wish to supplement my views while fully endorsing
and concurring with the judgment of His Lordship Justice P. Sathasivam.
Since, the facts have been elaborately stated in the judgment of His
Lordship Justice P. Sathasivam, I do not refer the same in detail. For the
purpose of my reasoning, in toeing with the conclusion of His Lordship
Justice P. Sathasivam, I only wish to refer to certain factors to support
our conclusions.
2. These appeals were entertained on 20.07.2009, however, while issuing
notice, the appeals were confined to sentence only. The appellant was found
guilty of the offence under Section 302 IPC and was sentenced to death for
committing the murder of his wife Veena Verma and his daughter Geetu Verma
on 08.01.2006 in the area of Pratap Singh Wala, Ludhiana. The above appeals
arose out of the confirmation of death sentence in Murder Reference
No.8/2007 as well as the connected Criminal Appeal No.1033-DB of 2007 filed
by the appellant.
3. It is necessary to state that the appellant indulged in grotesque
crime of murdering his wife and daughter one after another on 08.01.2006.
The motive for such a heinous crime was that there was a dispute between
him and his wife Veena Verma as regards the house which he owned and that
he was deprived of having access to his own house. In fact it was a matter
of record that in the year 1999 there was an FIR against the appellant in
FIR No.27 wherein the appellant was charged for offences under Sections 376
and 506 IPC for having committed rape on his deceased daughter Geetu Verma
which ended in a conviction of 12 years rigorous imprisonment by judgment
dated 15.05.2001. There was yet another FIR No.58 dated 06.04.2005 against
the appellant for offences under Sections 323 and 506 IPC for having
assaulted and for having given threat to his wife Veena Verma which was
also proved as per Ex.PAA. There was yet another record of criminal case
No.2531 dated 01.08.2005 (FIR No.58 of 2005) again for offences under
Sections 323 and 324 IPC which was pending in the Court of JMIC, Ludhiana.
In fact, the present offence of murder of his wife and daughter was
committed by the appellant when he was on parole while undergoing rigorous
imprisonment of 12 years for the conviction of the offence of rape of his
daughter committed in the year 1999. It was also relevant to keep in mind
that for holding the appellant guilty of the charge of murder of his wife
and daughter apart from the other evidence, the evidence of his own minor
daughter Shalu PW.2 who was an eye-witness to the occurrence weighed to
very great extent along with the evidence of his own son Malkiat Singh
PW.7.
4. The trial Court having noted the above factors held that having
regard to his involvement in various criminal cases in the past as well as
the gravity of the offence of murder of his own wife and daughter, whom the
appellant felt were responsible for his conviction for the offence of rape
committed on his own minor daughter, took the view by stating elaborate
reasons as to why the case fell within the principles of ‘rarest of rare
cases’ for the award of death sentence and inflicted the same on him.
5. The High Court after setting out the principles laid down in the
celebrated Constitution Bench decisions of this Court in Bachan Singh Vs.
State of Punjab – (1980) 2 SCC 684 and the subsequent judgment in Machhi
Singh and others Vs. State of Punjab – (1983) 3 SCC 470 held that the
murder reference deserved to be accepted and the death sentence was,
therefore, confirmed. The Division Bench of the High Court took into
account the circumstances which are to be kept in mind for applying the
‘rarest of the rare case’ theory based on the above referred two decisions
and noted the same as under:
“I. Manner of commission of murder.
II. Motive for commission of murder.
Anti-social or socially abhorrent nature of the crime.
Magnitude of crime
Personality of victim of murder.”
6. The High Court has also noted the injuries found on the body of the
deceased insofar as it related to Veena Verma, the wife of the appellant,
who suffered four incised wounds of which injury No. 1 was on the right
lateral side and upper part of the neck and injury No.2 was on the head,
third one was on the neck and fourth one resulted in partial amputation of
left index finger from its lower one-third with clean cut margins. As far
as the deceased daughter Geetu Verma is concerned, there were as many as
nine injuries out of which seven were incised wounds and two were
abrasions. Out of the seven incised wounds three were caused on the head
region itself, fourth was on the left mastoid and the remaining three were
on left and right elbow and fingers. Both the victims had instantaneous
death. The basic grievance of the appellant was nothing but his desire to
occupy his house which was occupied by none else than his own wife,
daughters and son.
7. By noting the special reasons, the Division Bench held that the
conduct of the appellant in causing the murder of his wife and daughter
acquired enormity to the extent that the case was fully governed by the
principle of ‘rarest of rare cases’ and ultimately held that the imposition
of death sentence by the trial Court was fully justified.
8. In this context we analyzed the various principles laid down in the
subsequent decisions reported in Swamy Shraddananda @ Murali Manohar Mishra
Vs. State of Karnataka - (2008) 13 SCC 767, Santosh Kumar Satishbhushan
Bariyar Vs. State of Maharashtra -(2009) 6 SCC 498, Mohd. Farooq Abdul
Gafur & Anr. Vs. State of Maharashtra -(2010) 14 SCC 641, Haresh Mohandas
Rajput Vs. State of Maharashtra -(2011) 12 SCC 56, State of Maharashtra Vs.
Goraksha Ambaji Adsul - AIR 2011 SC 2689 and the recent decision reported
in Mohammed Ajmal Mohammadamir Kasab @ Abu Mujahid Vs. State of Maharashtra
- JT 2012 (8) SC 4. From conspectus consideration of the above decisions
apart from the four principles laid down in Bachan Singh (supra) and also
the requirement of a balance sheet of aggravating and mitigating
circumstances, the following principles are required to be borne in mind:
i) A conclusion as to the ‘rarest of rare’ aspect with
respect to a matter shall entail identification of
aggravating and mitigating circumstances relating both to
the crime and the criminal.
ii) The expression ‘special reasons’ obviously means
(‘exceptional reasons’) founded on the exceptionally grave
circumstances of the particular case relating to the crime
as well as the criminal.
iii) The decision in Ravji @ Ram Chandra Vs. State of Rajasthan
– (1996) 2 SCC 175 which was subsequently followed in six
other cases, namely, Shivaji @ Dadya Shankar Alhat Vs.
State of Maharashtra - (2008) 15 SCC 269, Mohan Anna Chavan
Vs. State of Maharashtra - (2008) 7 SCC 561, Bantu Vs.
State of Uttar Pradesh - (2008) 11 SCC 113, Surja Ram Vs.
State of Rajasthan -(1996) 6 SCC 271, Dayanidhi Bisoi Vs.
State of Orissa - (2003) 9 SCC 310 and State of Uttar
Pradesh Vs. Sattan @ Satyendra & Ors. - (2009) 4 SCC 736
wherein it was held that it is only characteristics
relating to crime, to the exclusion of the ones relating to
criminal, which are relevant to sentencing in criminal
trial, was rendered per incuriam qua Bachan Singh (supra)
in the decision reported in Santosh Kumar Satishbhushan
Bariyar (supra) at 529.
iv) Public opinion is difficult to fit in the ‘rarest of rare’
matrix. People’s perception of crime is neither an
objective circumstance relating to crime nor to the
criminal. Perception of public is extraneous to conviction
as also sentencing, at least in capital sentencing
according to the mandate of Bachan Singh (supra). (2009) 6
SCC 498 at p.535.
v) Capital sentencing is one such field where the safeguards
continuously take strength from the Constitution. (2009) 6
SCC 498 at 539.
vi) The Apex Court as the final reviewing authority has a far
more serious and intensive duty to discharge and the Court
not only has to ensure that award of death penalty does not
become a perfunctory exercise of discretion under Section
302 after an ostensible consideration of ‘rarest of rare’
doctrine, but also that the decision-making process
survives the special rigours of procedural justice
applicable in this regard. (2010) 14 SCC 641 at 692.
vii) The ‘rarest of rare’ case comes when a convict would be a
menace and threat to the harmonious and peaceful
coexistence of the society. The crime may be heinous or
brutal but may not be in the category of “the rarest of the
rare case”. There must be no reason to believe that the
accused cannot be reformed or rehabilitated and that he is
likely to continue criminal acts of violence as would
constitute a continuing threat to the society. 2011 (12)
SCC 56 at p.63 para 20.
viii) Life sentence is the rule and the death penalty is
the exception. 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.
(ix) 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.(AIR 2011 SC 2689)
(x) When the case falls under the category of ‘rarest of rare’
case penalty of death is clearly called for and any leniency shown
in the matter of sentence would not only be misplaced but will
certainly give rise to and foster a feeling of private revenge
among the people leading to destabilization of the society.(AIR
1983 SC 585)
(xi) Death penalty has been held to be constitutionally
valid. The test is what case would attract death penalty if not the
case of the appellant. JT (2012) 8 SC 4.
9. Keeping the above settled principles in mind, when we examine the
case on hand, it is needless to state that the conduct of the appellant, if
analyzed, based on the previous crimes committed by him, we find that in
the year 1999 as found by the courts below the appellant committed rape on
his deceased daughter Geetu Verma when she was minor and that too after
beating her. To which beastly action, unfortunately the other deceased
(viz) his wife, was an eye-witness. One cannot comprehend to visualize a
situation of such nature in which father himself committed rape on his own
minor daughter in the presence of her own mother. The conduct of the
appellant in the commission of the said offence was not only bordering on
immorality of the highest order but would be extremely difficult for anyone
to lightly brush aside such a conduct by stating that either it was
committed in a fit of anger or rage or such other similar situation. If
such grotesque offence of rape had been committed by anyone, other than the
father himself, the victim would have had every opportunity to cry for
solace in her father or mother. In this context, we are only reminded of
the Tamil proverb “?????? ????? ??????? ???” which means in English “When
the fence eats the crops”. When the father himself happens to be the
assailant in the commission of such beastly crime, one can visualize the
pathetic situation in which the girl would have been placed and that too
when such a shameless act was committed in the presence of her own mother.
When the daughter and the mother were able to get their grievances
redressed by getting the appellant convicted for the said offence of rape
one would have in the normal course expected the appellant to have
displayed a conduct of remorse. Unfortunately, the subsequent conduct of
the appellant when he was on parole disclosed that he approached the
victims in a far more vengeful manner by assaulting the hapless victims
which resulted in filing of an FIR once in the year 2005 and subsequently
when he was on parole in the year 2006. The monstrous mindset of the
appellant appears to have not subsided by mere assault on the victims who
ultimately displayed his extreme inhuman behaviour by eliminating his
daughter and wife in such a gruesome manner in which he committed the
murder by inflicting the injuries on the vital parts of the body of the
deceased and that too with all vengeance at his command in order to ensure
that they met with instantaneous death. The nature of injuries as described
in the postmortem report speaks for itself as to the vengeance with which
the appellant attacked the hapless victims. He was not even prepared to
spare his younger daughter (viz) PW-2 who, however, escaped the wrath of
the appellant by bolting herself inside a room after she witnessed the
grotesque manner in which the appellant took away the life of his wife and
daughter.
10. Be that as it may when we come to the question of applying the
various principles culled out from the decisions right from the
Constitution Bench decision in Bachan Singh (supra) right up to the case
Mohammed Ajmal Mohammadamir Kasab (supra) as held by my learned brother
Justice P. Sathasivam for the various reasons referred to therein, we find
that the case still does not fall within the category of ‘rarest of rare
case’ though it calls for a stringent punishment. Therefore, while
modifying the sentence from one of death penalty to that of life
imprisonment till the end of his life we apply the earliest decision of
this Court reported in Gopal Vinayak Godse Vs. State of Maharashtra & Ors.
- AIR 1961 SC 600 wherein this Court held in paragraph 5 as under:
“It does not say that transportation for life shall be deemed to be
transportation for twenty years for all purposes; nor does the amended
section which substitutes the words ‘imprisonment for life’ for
‘transportation for life’ enable the drawing of any such all-embracing
fiction. A sentence of transportation for life or imprisonment for
life must prima facie be treated as transportation or imprisonment for
the whole of the remaining period of the convicted person’s natural
life.”
11. The said principle was followed subsequently in Mohd. Munna Vs. Union
of India and Ors. - (2005) 7 SCC 417. Applying the above decisions, we have
no hesitation in holding that the appellant deserves to be sentenced to
undergo rigorous imprisonment for life meaning thereby the end of his life
subject, however, to remission granted by the appropriate Government
satisfying the conditions prescribed in Section 432 of the Code of Criminal
Procedure and further substantiate check under Section 433A of the Code by
passing appropriate speaking orders.
…………………………………………J.
[Fakkir Mohamed Ibrahim Kalifulla]
New Delhi;
January 28, 2013
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