State of Madhya Pradesh Vs. Amar Lal-10/12/2019

SUPREME COURT OF INDIA JUDGMENTS

Acquittal-It appears from the records that the respondent as under trial had undergone 2 years 8 months 11 days of custody and after his conviction on 24.01.1995 by the Sessions Judge he remained in custody till 18.11.2006 completing 11 years 9 months 26 days. Thus, he has undergone total custody of 14 years 6 months 7 days.

SUPREME COURT OF INDIA

State of Madhya Pradesh Vs. Amar Lal

[Criminal Appeal No (s). 251 of 2010]

Navin Sinha, J.

1.The appellant State questions the acquittal of the respondent from the charge under Section 302 I.P.C. even while his conviction under Section 323 I.P.C. has been affirmed.

2. The assault on the deceased is said to have taken place on 27.03.1990 with the pointed end of wooden plough used for tilling the land. PW4 and PW5 are the family members of the deceased. The latter is also an injured witness. The submission on behalf of the appellant was that in view of the ocular evidence available with regard to the assault, the High Court erred in acquitting the respondent on the reasoning that though the assault was with the sharp end of the plough which had nails, there was no corresponding injury as the nature of injury found could only be by blunt hard substance. The acquittal, based on the mere opinion of the Doctor PW6, on the aforesaid ground was unjustified. PW4 and PW5 have not been doubted as eyewitnesses or that the latter was injured in the same incident.

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DEV KARAN @ LAMBU VS STATE OF HARYANA- 06/08/2019

“We may also notice that there are concurrent findings of the trial court and the appellate court, which have appreciated the evidence, and we do not think that this Court should convert itself into a third court of appeal for appreciation of evidence.”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 299 OF 2010

DEV KARAN @ LAMBU ….Appellant(s)

VERSUS

STATE OF HARYANA ….Respondent(s)

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BHAWNA BAI VS GHANSHYAM AND OTHERS- 03/12/2019

SUPREME COURT OF INDIA JUDGMENTS

Framing of Charge-Section 302 IPC read with Section 34 IPC- For framing the charges under Section 228 Crl.P.C., the judge is not required to record detailed reasons. As pointed out earlier, at the stage of framing the charge, the court is not required to hold an elaborate enquiry; only prima facie case is to be seen.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1820 OF 2019
(Arising out of SLP(Crl.) No.6964 of 2019)

BHAWNA BAI …Appellant

VERSUS

GHANSHYAM AND OTHERS …Respondents

JUDGMENT

R. BANUMATHI, J.

Leave granted.

2. This appeal arises out of the impugned judgment and final order dated 25.02.2019 passed by the High Court of Madhya Pradesh at Indore Bench in Criminal Revision No.402 of 2019 in and by which the High Court has quashed the charges framed by the trial court/Additional Sessions Judge against respondent Nos.1 and 2/accused Nos.1 and 2.
3. Brief facts which led to filing of this appeal are as follows:-

On 24.12.2015, the husband of the complainant-Gopal Saran at about 06.00 pm went saying to prepare food as he is going outside to plough the field and shall return by 09.00-10.00 pm. Even by 12.00 mid night, Gopal Saran did not return home; then his wife Bhawna Bai, appellant herein tried to contact him over his mobile; but he did not receive the call. The appellant informed her father-in-law who tried to search the deceased and there was no information about the deceased. On the next morning at about 08.00 am, the appellant-complainant and her family members came to know from the neighbours that Gopal Saran was lying in the tank//hose in the field of the first respondent-Ghanshyam. The appellant has alleged that when she tried to approach her husband then Ganesh s/o Mohanlal Kushwah prevented her going near her husband and locked her in a room and did not allow her to see her husband. The dead body of Gopal Saran was taken to government hospital. The appellant-complainant alleged that without informing her, post-mortem of her husband was conducted. Merg No.94 of 2015 was registered for investigation under Section 174 Crl.P.C.; but no case was registered against any person.

4. On 31.12.2015, the appellant made a written complaint before the Superintendent of Police, Khargaon and in spite of the same, no case was registered. Thereafter, the complainant-appellant filed a complaint before the Additional Chief Judicial Magistrate (ACJM), Kasrawad under Section 156(3) Crl.P.C. on 12.04.2016. The learned ACJM accepted the complaint and directed the Officer-in-Charge, P.S. Kasrawad to register the FIR under Section 302 IPC and proceed with the investigation. FIR was registered in Crime No.145 of 2016 under Section 302 IPC read with Section 34 IPC. Challenging the direction of ACJM to register a FIR, the State of Madhya Pradesh has filed revision before the Additional Sessions Judge, Mandleswar in Criminal Revision No.300051 of 2016. The said revision petition was dismissed vide order dated 27.10.2016.

5. Respondent Nos.1 and 2/accused Nos.1 and 2 have prayed for anticipatory bail and the same was dismissed by the learned Special Judge SC/ST (Prevention of Attrocities) Act, West Nimad, Mandleswar vide order dated 10.09.2018. Being aggrieved, respondent Nos.1 and 2 filed appeal before the High Court and the High Court had granted anticipatory bail to them vide order dated 19. 09.2018. Against the grant of anticipatory bail, the appellant-complainant has filed SLP(Crl.) Diary No.39785/2018 before the Supreme Court in which the Supreme Court by order dated 14. 12.2018 has issued notice. In the meanwhile, charge sheet has been filed against the accused-respondent Nos.1 and 2 under Section 302 IPC read with Section 34 IPC on 26.09.2018. Upon hearing the prosecution and also the respondents-accused, vide order dated 12.12.2018, the learned Second Additional Sessions Judge, Mandleswar has found that there are sufficient grounds for proceeding against the accused and framed the charges against the accused-respondent Nos.1 and 2 under Section 302 IPC read with Section 34 IPC.

6. Challenging the order of framing charges, respondent Nos.1 and 2 have filed revision before the High Court. Holding that, while framing charges, the court should apply the judicial mind and should give reasons in concise manner for framing charges and that the trial court has failed to apply its mind while framing charges, the High Court vide impugned order dated 25.02.2019 has quashed the charges against respondent Nos.1 and 2 and discharged them. Being aggrieved, the appellant-complainant has preferred this appeal.

7. Mr. Bijan Kumar Ghosh, learned counsel appearing for the appellant has submitted that there are circumstances like “last seen together”; “recovery of dead body”; “not informing the family of the victim immediately upon discovery of dead body”; “not informing the police”; “recovery of other belongings of dead body including tractor” and such other circumstances connecting the accused-respondent Nos.1 and 2 with the death of Gopal Saran and considering those circumstances, the learned Second Additional Sessions Judge satisfied himself that there are sufficient ground for framing charges against the accused. The learned counsel submitted that when the trial judge has so satisfied that there are sufficient grounds for framing the charges against the accused, in exercise of its revisional jurisdiction, the High Court ought not to have interfered and quashed the charges framed by the trial court.

8. Mr. Harsh Parashar, learned counsel appearing for the State of Madhya Pradesh reiterated the contentions and submitted that the averments in the charge sheet and the circumstances indicated thereon are sufficient to prima facie link respondent Nos.1 and 2 to the occurrence and while so, the High Court erred in setting aside the order of the Second Additional Sessions Judge and quashing the charges.

9. Mr. Santosh Kumar, learned counsel appearing for the accused-respondent Nos.1 and 2 submitted that even if the averments in the charge sheet are accepted, no prima facie case is made out against the accused-respondent Nos.1 and 2 and there was non-application of judicial mind by the learned trial judge and considering the facts and circumstances of the case, the High Court rightly quashed the charges framed against the accused-respondent Nos.1 and 2 and the impugned order therefore, does not suffer from any infirmity.

10. We have carefully considered the submissions and perused the impugned order and materials on record.

11. As per the allegations in the charge sheet, on the date of occurrence i.e. 24.12.2015, the accused-respondents Ghanshyam and Bhagwan went with deceased Gopal Saran to the farm of Ghanshyam for ploughing the land with tractor and that all the three consumed liquor together at the place of incident. Thus, as per the allegations in the charge sheet, the deceased was last seen alive in the company of accused-respondent Nos.1 and 2. As per the statement of Usha, wife of Ghanshyam and Nisha, daughter of Ghanshyam, the accused-respondent Nos.1 and 2 had returned home at 09.00 pm in the night of 24.12.2015. Though, the body of deceased was found in the field of respondent-accused Ghanshyam, he did not inform the family of deceased Gopal Saran nor informed the police about the same. In the complaint filed by the appellant before the Magistrate, the appellant has alleged that “when she went running near to her husband’s dead body, Ganesh son of Ghanshyam caught hold of her and forcibly locked her in a room in his house and did not allow her to go near the dead body of her husband”. The allegations in the charge sheet also suggest that the accused-respondent Nos.1 and 2 had earlier quarrelled with deceased Gopal Saran and thereby suggesting a motive for the crime.

12. Though the circumstances alleged in the charge sheet are to be established during the trial by adducing the evidence, the allegations in the charge sheet show a prima facie case against the accused-respondent Nos.1 and 2. The circumstances alleged by the prosecution indicate that there are sufficient grounds for proceedings against the accused. At the time of framing the charges, only prima facie case is to be seen; whether case is beyond reasonable doubt, is not to be seen at this stage. At the stage of framing the charge, the court has to see if there is sufficient ground for proceeding against the accused. While evaluating the materials, strict standard of proof is not required; only prima facie case against the accused is to be seen.

13. Chapter XVIII Crl.P.C. deals with “Trial before a Court of Session”. As per Section 226 Crl.P.C., the public prosecutor is required to open the case before the Sessions Court by describing the charge brought against the accused and stating by what evidence, he proposes to prove the guilt of the accused. Section 227 Crl.P.C. deals with discharge and it reads as under:-

“227. Discharge.—If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.”

14. Considering the scope of Sections 227 and 228 Crl.P.C., in Amit Kapoor v. Ramesh Chander and another (2012) 9 SCC 460, the Supreme Court held as under:-
“17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the “record of the case” and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code.

………..

19. At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. We may refer to the well-settled law laid down by this Court in State of Bihar v. Ramesh Singh (1977) 4 SCC 39: (SCC pp. 41-42, para 4)

“4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If ‘the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing’, as enjoined by Section 227. If, on the other hand, ‘the Judge is of opinion that there is ground for presuming that the accused has committed an offence which

— … (b) is exclusively triable by the court, he shall frame in writing a charge against the accused’, as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.””

15. After referring to Amit Kapoor, in Dinesh Tiwari v. State of Uttar Pradesh and another (2014) 13 SCC 137, the Supreme Court held that for framing charge under Section 228 Crl.P.C., the judge is not required to record detailed reasons as to why such charge is framed. On perusal of record and hearing of parties, if the judge is of the opinion that there is sufficient ground for presuming that the accused has committed the offence triable by the Court of Session, he shall frame the charge against the accused for such offence.

16. As discussed above, in the present case, upon hearing the parties and considering the allegations in the charge sheet, the learned Second Additional Sessions Judge was of the opinion that there were sufficient grounds for presuming that the accused has committed the offence punishable under Section 302 IPC read with Section 34 IPC. The order dated 12.12.2018 framing the charges is not a detailed order. For framing the charges under Section 228 Crl.P.C., the judge is not required to record detailed reasons. As pointed out earlier, at the stage of framing the charge, the court is not required to hold an elaborate enquiry; only prima facie case is to be seen. As held in Knati Bhadra Shah and another v. State of West Bengal (2000) 1 SCC 722, while exercising power under Section 228 Crl.P.C., the judge is not required record his reasons for framing the charges against the accused. Upon hearing the parties and based upon the allegations and taking note of the allegations in the charge sheet, the learned Second Additional Sessions Judge was satisfied that there is sufficient ground for proceeding against the accused and framed the charges against the accused-respondent Nos.1 and 2. While so, the High Court was not right in interfering with the order of the trial court framing the charges against the accused-respondent Nos.1 and 2 under Section 302 IPC read with Section 34 IPC and the High Court, in our view, erred in quashing the charges framed against the accused. The impugned order cannot therefore be sustained and is liable to be set aside.

17. In the result, the impugned judgment dated 25.02.2019 passed by the High Court of Madhya Pradesh at Indore Bench in Criminal Revision No.402 of 2019 is set aside and this appeal is allowed. Sessions Trial Case No.ST/150/2018 is restored and Second Additional Sessions Judge, Mandleswar, West Nimad, Madhya Pradesh shall proceed with the matter in accordance with law. We make it clear that we have not expressed any opinion on the merits of the matter.

J.[R. BANUMATHI]

J. [A.S. BOPANNA]

J. [HRISHIKESH ROY]

New Delhi;
December 03, 2019.


 

JAI PRAKASH VS STATE OF UTTAR PRADESH  AND OTHERS-28/11/2019

Murder Conviction-Sections 302 IPC and 120-B IPC-The duty of the appellate court is to consider and appreciate the evidence adduced by the prosecution and arrive at an independent conclusion. Like the trial court, the appellate court also must be satisfied of its conclusion. In exercise of power under Article 136 of the Constitution of India, in State of Uttar Pradesh v. Punni and others (2008) 11 SCS 153, while dealing with the order of acquittal passed by the High Court, the Supreme Court held that it would not ordinarily interfere with the findings of the High Court unless it is satisfied that such a finding is vitiated by some glaring infirmity in the appraisement of evidence or such finding is perverse or arbitrary.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1790-1791 OF 2019
[Arising out of SLP(Crl.) Nos.269-70 of 2019]

JAI PRAKASH …Appellant
VERSUS
STATE OF UTTAR PRADESH  AND OTHERS …Respondents

WITH
CRIMINAL APPEAL NOS.1792-93 OF 2019

[Arising out of SLP(Crl.) Nos.288-89 of 2019]

Act: Sections 302 IPC and 120-B IPC

JUDGMENT

R. BANUMATHI, J.

Leave granted.

2. These appeals arise out of the impugned judgment dated 16. 11.2018 passed by the High Court of Judicature at Allahabad in Criminal Appeal Nos.2403 and 5829 of 2005 whereby the High Court allowed the appeals thereby setting aside the conviction of respondents-accused Nos.1, 2 and 4 passed by the trial court under Sections 302 IPC and 120B IPC and acquitted them of the charges under Sections 302 IPC and 120-B IPC.

3. Being aggrieved by the acquittal, the appellant-complainant has preferred Criminal Appeals arising out of SLP(Crl.) Nos.269-70 of 2019. The State of Uttar Pradesh has filed the other Criminal Appeals arising out of SLP(Crl.) Nos.288-89 of 2019.

4. Briefly stated case of the prosecution is as under:-Complainant-Jai Prakash and deceased Ravi Prakash are real brothers. On 17.11.1992 shortly prior to 09.00 am, the appellant-complainant came back home after relieving himself near the Urai bus stand. At that time, he noticed the accused persons sitting with arms in their possession in the flour mill of Shankar Teli-accused No.3 (since acquitted by the trial court). Complainant came to his house. At that time, Sanjay Mishra and Ajay Kumar (PW-3) came to the house of deceased for discussion regarding the work of electric decoration in connection with the marriage of daughter of one Maiku Soni. The appellant sent Ravi Prakash to bring gutkha for Ajay Kumar (PW-3) and Sanjay Mishra. After purchasing gutkha when the deceased was returning from the shop and reached in front of accused No.3-Shankar Teli’s flour mill, accused Bhupendra Yadav (A2) armed with double barrelled gun, accused Raju Teli (A4) armed with single barrelled gun and accused Lallu @ Lal Diwan (A1) armed with country made pistol, caught hold of the deceased Ravi Prakash. Ravi Prakash tried to free himself by raising alarm. Accused Bhupendra Yadav fired bullet in the chest of the deceased Ravi Prakash, accused Raju Teli fired in the leg and accused Lallu @ Lal Diwan fired in the jaw of the deceased. Ravi Prakash fell down on the spot. Appellant-Jai Prakash, Ajay Kumar (PW-3) and Sanjay Mishra who saw the occurrence rushed to the spot to save the deceased Ravi Prakash. On seeing them coming, accused persons came out of the flour mill and fled away from the scene of occurrence.

5. As per the complainant, motive for the commission of the offence was the previous enmity harboured by accused Bhupendra Yadav with the family of the appellant due to newspaper publishing regarding the activities of accused Bhupendra Yadav by another brother of the appellant namely Om Prakash, in the weekly journal August Nama. Due to which, accused Bhupendra Yadav had beaten up Om Prakash and Om Prakash lodged complaint against accused Bhupendra Yadav. Sometimes prior to the occurrence, accused Bhupendra Yadav had beaten up the appellant also and on the basis of the complaint, a case was registered against accused Bhupendra Yadav. According to the appellant, as a consequence of the said enmity, Ravi Prakash was fired at by the accused and murdered.

6. Regarding the occurrence, PW-1-Jai Prakash got the complaint written by one Munni Lal and on the same day at 09.30 am, the appellant lodged the same before the Police Station Rath, District-Hamirpur. Based on the complaint, FIR in Crime No.474 of 1992 (Ex.-Ka.3) was registered against the accused under Sections
302 IPC and 120B IPC. Investigation of the case was taken up by the Investigating Officer-PW-5-SI-Shobha Mani Tripathi. The Investigating Officer went to the place of occurrence and under his instructions, SI-R.N. Singh held inquest on the body of deceased Ravi Prakash. The dead body of Ravi Prakash was sent to hospital for post-mortem examination. SI-R.N. Singh took sample of simple and blood-stained earth from the scene of occurrence and recovered a pair of chappal of the deceased (Ex.-Ka.10) and packet of kisaan gutkha (Ex.-Ka.11) and prepared recovery memo.

7. On the same day i.e. 17.11.1992 at about 04.15 pm, dead body of Ravi Prakash was sent to Rajkiya Purush Chikitsalaya, Rath where post-mortem was conducted on the dead body by Dr. B.K. Gupta (PW-2) who noted the following injuries:-

(i) A firearm lacerated wound of entry on left side of chest, 4 cm below the medial left clavicle and 3 cm left to midline of chest.

(ii) Multiple firearm lacerated wound of exit on left side of scapular region, 3 cm left to midline of back.

(iii) A firearm lacerated wound of entry on right side lower jaw, 5 cm right to the tip of chin.

(iv) A firearm lacerated wound of entry on back of right thigh, 7.5 cm above the knee joint.

(v) A firearm lacerated wound of entry on right thigh, 20 cm above the knee joint.

(vi) A firearm lacerated wound of exit on antero right thigh, 10 cm above knee joint.

(vii) Multiple abrasion on medial aspect of right leg above the medial malleolus.

PW-2-Doctor opined that the death of the deceased was due to haemorrhagic shock as a result of ante-mortem injuries and issued Ex.-Ka.2-Post-Mortem Certificate. After completion of investigation, charge sheet was filed against all the four accused under Sections 302 IPC and 120B IPC.

8. When questioned, all the accused denied the charges and pleaded not guilty. To bring home the guilt of the accused, the prosecution examined total six witnesses – eye witnesses PWs 1 and 3 and Doctor-PW-2 and IO (PW-5) and other witnesses. Upon consideration of the evidence, the trial court convicted accused Nos.1, 2 and 4 under Sections 302 IPC and 120B IPC and sentenced them to undergo life imprisonment. The trial court held that the evidence of eye witness-PW-1-Jai Prakash, brother of deceased and PW-3-Ajay Kumar are natural and acceptable. The trial court held that PW-3-Ajay Kumar has given satisfying reasons for his presence at the house of PW-1 and the presence of PW-3 outside the house of PW-1 is natural and cannot be doubted. Insofar as the question of non-examination of Sanjay Mishra and other persons in the mohalla, the trial court held that in the present social conditions and circumstances, independent witnesses are apprehensive that if they appear as witnesses in the criminal cases, their future will not be safe and therefore, non-examination of the independent witnesses will not affect the prosecution case. After referring to the post-mortem report and the evidence of PW-2-Doctor, the trial court held that the medical evidence corroborates the evidence of PWs 1 and 3. The trial court also held that non-recovery of the guns and the contradictions pointed by the accused in the evidence of PWs 1 and 3, would not affect the case of the prosecution. With those findings, the trial court convicted accused Nos.1, 2 and 4. However, the trial court gave benefit of doubt to accused No.3-Shankar Teli and acquitted him.

9. Being aggrieved, the respondents-accused Nos.1, 2 and 4 have preferred appeals before the High Court. By referring to the contents of the FIR (Ex.-Ka.3), the High Court held that within short time, it is least possible for an illiterate person like PW-1 to lodge a complaint with such details and the possibility cannot be ruled out that the First Information Report has been lodged after discussion and on the advice of Om Prakash. After referring to the deposition of PW-1 and PW-3, the High Court held that the presence of the witnesses at the place and at the time of occurrence appears to be doubtful. After referring to Post-Mortem Report, the High Court further held that in the Post-Mortem Report, it is mentioned that the large intestine of deceased was full and therefore, death might have taken place before Ravi Prakash attended nature call as generally, people attend the call of nature in the morning and it is least possible that the deceased has not attended the call of nature before 09.00 am. Doubting the presence of PW-3 at the place and time of occurrence, the High Court held that PW-3 could not properly explain the reason as to why he went to the house of PW-1 and his version appears unnatural. Pointing out that there was motive for Om Prakash to instigate his brother PW-1 to make false allegations against the accused on the murder of his brother Ravi Prakash, the High Court held that accused Nos.1, 2 and 4 deserve to be given benefit of doubt. With those findings, the High Court allowed the appeals filed by the accused and set aside their conviction and sentence passed by the trial court and acquitted them.

10. Taking us through the evidence and the judgment of the trial court as well as the High Court, Mr. R. Basant, learned Senior counsel for the appellant has submitted that PW-1 has clearly stated each and every detail of the incident which is amply corroborated by the evidence of PW-3 and the evidence of PWs 1 and 3 are natural and their evidence is consistent with the medical evidence as well as the case of the prosecution. It was further submitted that considering the well-settled position, the trial court recorded the finding that the general public are reluctant to come forward to depose before the court and it is not proper to reject the case of the prosecution for non-examination of the independent witnesses. It was submitted that the High Court erred in holding that non-examination of the independent witnesses and Munni Lal-scribe of the complaint is fatal to the prosecution case. Learned Senior counsel further submitted that the lapses in the investigation like non-sending of the blood-stained earth and sample earth taken from the scene of occurrence and non-recovery of “empties” from the scene of occurrence and other lapses would not affect the prosecution case and the High Court erred in reversing the conviction and acquitting the accused.

11. Mr. Basava Prabhu S. Patil, learned Senior counsel appearing for accused No.2-Bhupendra Yadav submitted that the motive is attributed to Om Prakash-brother of PW-1 and when the accused were having such enmity with Om Prakash, it is not known as to why the accused should attack Ravi Prakash and no injury was caused to PW-1 who was easily available to the accused even before Ravi Prakash passed through the flour mill of Shankar Teli (PW-3). The learned Senior counsel further submitted the PW-3 is a chance witness and as such, his presence in the house of PW-1 is not natural and PW-3 could not have witnessed the incident. It was further submitted that the High Court rightly pointed out the improbability of the occurrence that the accused who were waiting in Shankar Teli’s flour mill, would not have anticipated that Ravi Prakash would pass through the flour mill and considering the improbability of the prosecution case, the High Court rightly reversed the conviction and the impugned judgment warrants no interference.

12. Mr. P.K. Sharma, learned counsel appearing for accused No.4-Raju Teli submitted that the conduct of PW-1, brother of deceased was unnatural as he made no attempt to save his younger brother rather he was interested only in preparing the complaint (Ex.-Ka.3) and going to the police station. Learned counsel further submitted that the Post-Mortem Report shows four gun-shot injuries which are not in consonance with the oral evidence and the discrepancies between the oral and medical evidence has not been properly explained. The learned counsel submitted that PW-3 is a chance witness and the High Court rightly held that his presence in the house of PW-1 at the time of incident is unnatural. It was submitted that the prosecution case is highly doubtful since during the investigation, neither the fire arms were recovered nor the “empties” of the cartridges have been recovered from the place of occurrence and no ballistic opinion had been obtained by the prosecution to prove that the injury on the person of the deceased were caused by the alleged fire arms used by the accused.

13. Mr. Kartikeya Bhargava, learned counsel appearing for accused No.1-Lallu @ Lal Diwan submitted that there were contradictions between the evidence of PWs 1 and 3 as to whether there was scuffle prior to the incident and this has not been properly appreciated by the trial court. The learned counsel further submitted that the multiple bruises found on the body of deceased has not been properly explained by the prosecution and the High Court rightly reversed the conviction of the accused and the impugned judgment warrants no interference.

14. We have carefully considered the contentions and perused the impugned judgment and materials on record. The point falling for consideration is as contended by the appellants, whether the High Court without properly appreciating the evidence erred in setting aside the conviction of the respondents-accused Nos.1, 2 and 4.

15. Case of the prosecution is that at about 09.00 am on 17.11.1992, while returning from the shop after purchasing gutkha, deceased Ravi Prakash reached the front of flour mill of Shankar Teli, accused Bhupendra Yadav (A2) having double barrelled gun, accused Raju Teli (A4) armed with single barrelled gun and accused Lallu @ Lal Diwan (A1) armed with country made pistol (tamancha), caught hold of Ravi Prakash and Ravi Prakash raised alarm and tried to free himself from the grip of the accused. At that time,
accused Bhupendra Yadav, Raju Teli and Lallu @ Lal Diwan fired from their respective weapons and fired shot on the chest, leg and jaw of Ravi Prakash respectively due to which Ravi Prakash fell down on the spot. Appellant Jai Prakash (PW-1), Ajay Kumar (PW3) and Sanjay Mishra rushed to the spot to save Ravi Prakash and on seeing them, all the three accused escaped from the place of occurrence. As per the complaint/FIR (Ex.-Ka.3) and also the statement of PW-1, after his morning walk and after relieving himself at the Urai bus stand, while coming back home, he saw the respondents-accused Nos.1, 2 and 4 sitting in the flour mill of Shankar Teli with arms in their possession. Case of the prosecution is that there was previous enmity between the family of appellant and accused Bhupendra Yadav which is the cause of murder of Ravi Prakash. When that being the motive and if the accused were so found armed with weapons in the flour mill of Shankar Teli, the question arises as to why the appellant sent his brother-Ravi Prakash to purchase gutkha from the shop of one Choco Kori. This has not been explained by the appellant.

16. The respondents-accused Nos.1, 2 and 4 armed with weapons were sitting in the flour mill of Shankar Teli and were talking to each other. The motive alleged by the prosecution is that about two years prior to the occurrence, Om Prakash-brother of the appellant-Jai Prakash had written about the illegal activities of accused Bhupendra Yadav and brought out news in the newspaper due to which accused Bhupendra Yadav had assaulted Om Prakash. In this regard, Om Prakash had lodged a criminal case in the police station and FIR has been registered and due to this enmity, the accused are alleged to have committed murder of Ravi Prakash. Both the appellant-Jai Prakash and Ravi Prakash are brothers of Om Prakash. If the accused were looking for vengeance of Om Prakash-brother of Ravi Prakash, why the respondents-accused allowed Jai Prakash (PW-1) to let go unharmed; more so, when PW-1 was normally in the habit of going for morning walk. If the motive for the crime is accepted, then all brothers of Om Prakash would be targets; but here attack was on only the deceased brother and PW-1 was spared although attackers were fully armed and near the place of occurrence. As pointed out by the High Court, case of the prosecution does not appear to be natural that the respondents-accused Nos.1, 2 and 4 have attacked Ravi Prakash who happened to pass through the flour mill by chance after purchase of gutkha.

17. 11.1992, while returning from the shop after purchasing gutkha, deceased Ravi Prakash reached the front of flour mill of Shankar Teli, accused Bhupendra Yadav (A2) having double barrelled gun, accused Raju Teli (A4) armed with single barrelled gun and accused Lallu @ Lal Diwan (A1) armed with country made pistol (tamancha), caught hold of Ravi Prakash and Ravi Prakash raised alarm and tried to free himself from the grip of the accused. At that time, accused Bhupendra Yadav, Raju Teli and Lallu @ Lal Diwan fired from their respective weapons and fired shot on the chest, leg and jaw of Ravi Prakash respectively due to which Ravi Prakash fell down on the spot. Appellant Jai Prakash (PW-1), Ajay Kumar (PW-3) and Sanjay Mishra rushed to the spot to save Ravi Prakash and on seeing them, all the three accused escaped from the place of occurrence. As per the complaint/FIR (Ex.-Ka.3) and also the statement of PW-1, after his morning walk and after relieving himself at the Urai bus stand, while coming back home, he saw the respondents-accused Nos.1, 2 and 4 sitting in the flour mill of Shankar Teli with arms in their possession. Case of the prosecution is that there was previous enmity between the family of appellant and accused Bhupendra Yadav which is the cause of murder of Ravi Prakash. When that being the motive and if the accused were so found armed with weapons in the flour mill of Shankar Teli, the question arises as to why the appellant sent his brother-Ravi Prakash to purchase gutkha from the shop of one Choco Kori. This has not been explained by the appellant.

17. PW-3-Ajay Kumar stated that on the date of occurrence i.e. 17. 11.1992, he along with Sanjay Mishra had gone to the house of Jai Prakash (PW-1) to discuss about the electric decoration work for the marriage ceremony of daughter of one Maiku Soni in their mohalla. Admittedly, Ravi Prakash was the electrician by profession who was to attend to the electric work and the decoration. It is not explained as to why deceased Ravi Prakash who was to attend to the electric work and the decoration work, instead of discussing the need of the prospective clients i.e. PW-3, would go out to purchase gutkha. Curiously, Maiku did not accompany Ajay Kumar (PW-3) and Sanjay Mishra to the house of Ravi Prakash for discussion. As pointed out by the High Court, neither Maiku nor any member of the family had gone with PW-3 to talk about the decoration for the marriage ceremony of daughter of Maiku. This raises serious doubts about the presence of PW-3 in the scene of occurrence and the case of the prosecution.

18. Next, as per the deposition of PW-1, there is a goomty placed on the square platform of Munna Musalman from which gutka can be taken out. This goomti is at a distance of just fifteen steps from the house of the appellant and the shop of Choco Kori where Ravi Prakash had gone to buy the gutkha is at a distance of about 150- 200 steps, again said 100-125 steps from the house of the appellant. It has nowhere been stated when the deceased could not have gotten gutkha right near his house and why should he go to a shop at some distance away from the house. Of course, PW-1 firstly stated that he gave money to Ravi Prakash to purchase gutkha, however subsequently, he stated that in the shop of Choco Kori, credit account was maintained. The reason stated that Ravi Prakash had gone to the shop of Choco Kori at a little bit far away place to purchase gutkha leaving his prospective clients for decoration of electric work is not quite convincing.

19. PW-3-Ajay Kumar is a resident of mohalla Mughalpura, town and PS Rath, District-Hamirpur. In his evidence, PW-3 stated that he along with Sanjay Mishra had gone to the house of PW-1. PW-3 further stated that he called PW-1 outside and when he was talking to PW-1, PW-1 asked Ravi Prakash to bring gutkha from the shop for Ajay Kumar and Sanjay Mishra. As discussed earlier, when PW-3 had gone to the house of PW-1 to discuss about the electric decoration work for the marriage ceremony of daughter of Maiku, neither Maiku nor any member of his family accompanied PW-3 to discuss about the electric work in the marriage ceremony of daughter of Maiku. In his cross-examination, PW-3 could not explain the reason as to why he went to the house of PW-1. The High Court observed that PW-3 is a chance witness and expressed doubts about the presence of PW-3 in the scene of occurrence on 17. 11.1992 and we do not find any good reason to take a different view.

20. There are several material discrepancies between the evidence of PW-1 and PW-3 as to the occurrence. PW-3 has stated that when Ravi Prakash passed through the way, the respondents-accused came out of the flour mill and there was a scuffle for sometime with Ravi Prakash and the accused fired the bullet shots from their guns and the pistol. On the other hand, PW-1 has only stated that the respondents-accused have fired at Ravi Prakash and has not stated anything about the scuffle. The witnesses who have deposed in the court after considerable lapse of time of course, cannot be expected to have photographic memory of the case. We are conscious of the well settled position that the minor discrepancies not touching upon the core of the prosecution case, would not affect the credibility of the witnesses or the prosecution case. Of course, PWs 1 and 3 have given their evidence in the court in 2003-04 near after a decade; but they are said to have witnessed the occurrence from a close distance. Whether there was scuffle between Ravi Prakash and the respondents-accused is an integral part of the main incident and the witnesses are expected to be consistent in their version. The inconsistencies in the version of PWs 1 and 3 as to whether there was a scuffle or not is not explained by the prosecution which again raises serious doubts about the prosecution case.

21. Medical Evidence: As per the deposition of PWs 1 and 3, accused Bhupendra Yadav fired at the deceased on his chest; Lallu @ Lal Diwan fired on the jaw and Raju Teli fired on the leg of the deceased. As per post-mortem report dated 17.11.1992, there were four firearm lacerated wounds. Apart from the injuries on the chest, jaw and the leg, there was firm arm injury on the right thigh 2 cm above the knee. PWs 1 and 3 have not explained the fourth firearm injury; nor they have made any mention of the accused firing multiple shots. This discrepancy between the medical evidence and the oral evidence assumes significance in view of the elaborated depositions made by the witnesses and the FIR which explains minute detail of the entire incident.

22. There are also several lapses in the investigation of the case like non-recovery of “empties” fired from the guns on the deceased, non-recovery of fire arms used by the respondents-accused etc. It is well-settled that any omission on the part of the Investigating Officer cannot go against the prosecution case. If the Investigating Officer has deliberately omitted to do what he ought to have done in the interest of justice, it means that such acts or omissions of Investigating Officer should not be taken in favour of the accused. In his cross-examination, PW-5-Investigating Officer has stated that the broken pieces of cartridges, bursts and empty shells of the cartridges were not found on the site of the incident. PW-4-Sub-Inspector of Police has also not made reference about the “empty shells of cartridges” in the scene of occurrence. The prosecution case of course, cannot be doubted merely on the ground of non-recovery of weapons and other piece of evidence. But in the present case, an elaborately written FIR was registered immediately after the occurrence i.e. at 09.30 am. The Sub-Inspector of Police (PW-5) had promptly taken up the investigation and on the direction of PW-5, SI-R.N. Singh took sample earth and the blood-stained earth from the scene of occurrence and recovered a pair of footwear of the deceased and packet of kissan gutkha and prepared recovery memo of the same which are marked as Ex.-Ka.10 and Ex.-Ka.11 respectively. When the Investigating Officer had taken care even to recover packet of kissan gutkha from the scene of occurrence, curiously, the “empties” of the fired cartridges were not recovered. The material pieces of evidence like “empties” were lost; but this vital omission has not been explained. This factum assumes importance particularly, in view of the fact that the FIR is alleged to have been registered promptly at 09:30 a.m. of the occurrence which occurred at 09:00 am. The inquest was also conducted at 10:00 a.m. and the investigation also promptly started. The accused-respondents allegedly ran away from the scene of occurrence immediately after shooting at the deceased thus, they could not have possibly removed the cartridges, pieces, etc. themselves. This is not the case of the prosecution. It is also not the case of the prosecution that the area was cleaned and somebody has removed the “empties”. In such view of the matter, the non-recovery of “bursts and empty shells of cartridges” and “broken pieces of cartridges” from the scene of occurrence raises serious doubt about the actual place of occurrence. As pointed out earlier, any act of commission/omission of the Investigating Officer cannot go to the advantage of the accused. But in a case of this nature where FIR is said to have been registered within half an hour of the occurrence and the investigation also commenced then and there, we find no reason as to why the “empties” and “bursts” from the scene of occurrence were not recovered.

23. Furthermore, as per the evidence of Investigating Officer Shobha Mani Tripathi (PW-5), the accused were arrested on the very next day of occurrence i.e. 18.11.1992. Even though the accused were arrested on the very next day, the weapons used by them were not recovered. Of course, the case of the prosecution has to be examined de hors such omissions of the Investigating Officer like non-recovery of weapons etc.But material discrepancies in the evidence of PWs 1 and 3 coupled with the unnaturalness of the prosecution case, non-recovery of weapons and empties raise serious doubts about the prosecution case.

24. The duty of the appellate court is to consider and appreciate the evidence adduced by the prosecution and arrive at an independent conclusion. Like the trial court, the appellate court also must be satisfied of its conclusion. In exercise of power under Article 136 of the Constitution of India, in State of Uttar Pradesh v. Punni and others (2008) 11 SCS 153, while dealing with the order of acquittal passed by the High Court, the Supreme Court held that it would not ordinarily interfere with the findings of the High Court unless it is satisfied that such a finding is vitiated by some glaring infirmity in the appraisement of evidence or such finding is perverse or arbitrary. In the present case, the High Court has analysed entire evidence and recorded its finding as to how the trial court has gone wrong in not appreciating the material inconsistencies in the prosecution case. The findings recorded by the High Court in acquitting the respondents-accused Nos.1, 2 and 4 does not suffer from any infirmity warranting interference with the impugned judgment. The appeals filed by the complainant and the State of Uttar Pradesh are liable to be dismissed.

25. In the result, the impugned judgment dated 16.11.2018 passed by the High Court of Judicature at Allahabad in Criminal Appeal Nos.2403 and 5829 of 2005 is affirmed and the criminal appeals arising out of SLP(Crl.) Nos.269-70 of 2019 filed by the appellant-Jai Prakash and criminal appeals arising out of SLP(Crl.) Nos.288-89 of 2019 filed by the State of Uttar Pradesh stand dismissed.

J. [R. BANUMATHI]

J. [A.S. BOPANNA]

J. [HRISHIKESH ROY]

New Delhi;
November 28, 2019


State of Madhya Pradesh Vs. Killu @ Kailash and Ors- 19/11/2019

MURDER: Merely because the other three accused persons i.e. the present respondents had not used their weapons does not absolve them of the responsibility and vicarious liability on which the very idea of charge under Section 149 IPC is founded. For the application of the principle of vicarious liability under Section 149 IPC what is material to establish is that the persons concerned were members of an unlawful assembly, the common object of which was to commit a particular crime. The fact that five persons were separately armed and had entered the house of the deceased during night time is clearly indicative that each one of them was a member of that unlawful assembly, the object of which was to commit the crime with which they came to be charged in question.

SUPREME COURT OF INDIA

State of Madhya Pradesh Vs. Killu @ Kailash and Ors.

[Criminal Appeal Nos. 1709-1710 of 2019 arising out of Special Leave Petition (CRL.) Nos. 2497-2498 of 2019]

ACT: Section 302 read with Section 149 IPC

Uday Umesh Lalit, J.

1. Leave granted.

2. These Appeals question the judgment and order dated 29.06.2018 passed by the High Court of Madhya Pradesh at Jabalpur in Criminal Appeal Nos.2676 of 2008 and 158 of 2009.

3. The basic facts as stated in the judgment under appeal are as under:-

“3. Prosecution story, in brief is that, accused/appellant No.4 Khushiram in Cr. Appeal No.2678 of 2008, who is uncle [mousia] of the son of the deceased, had some enmity with Balaprasad Pathak [since deceased]. He along with other accused persons entered in the house of Balaprasad Pathak in the mid night [2 O’ clock] of 23.05.2005. Deceased was sleeping with his family members. Accused/appellants [in Cr.Appeal No.2678/2008] namely; Khushiram and Himmu @ Hemchand were armed with axe, appellant Devendra was armed with Ballam and other two accused namely Killu @ Kailash and Kailash Nayak were armed with lathi.

Two accused persons namely; Khushiram and Himmu @ Hemchand [appellants No.2 and 4 in Cr. Appeal No.2676/2008] inflicted injuries by axe on the person of deceased. Allegation against other accused persons is of exhortation. Deceased died on the spot. Report of the incident was lodged by (PW-5) Rameshwar Pathak. Police conducted investigation and filed charge-sheet. During trial, appellants abjured their guilt and pleaded innocence. …”

4. In support of its case, the prosecution relied upon the testimony of PW3-Prabha Rani, wife of the deceased, PW4-Devendra Kumar, son of the deceased and PW5-Rameshwar Pathak, a relative of the deceased, who had lodged the First Information Report (‘the FIR’, for short). It was narrated in the FIR that after having received information about the assault, the informant had gone to the house of the deceased where PW3 narrated the incident to him, based on which the reporting was made by the informant. The medical evidence was unfolded through the testimony of PW2-Dr. R.K. Bhardwaj, who had conducted the post-mortem. He had found following injuries on the person of the deceased:-

“(i) Incised wound over left anterior part of scalp 4″x1/2” underlaying bone and brain matter cut inhacranial cavily pilled with blood.

(ii) Incised wound 5″ x 1″ x 2 1/2″ uppermost part of chest and adjoining anterior part of neck slightly left side obliquely placed undergone and blood vessels cut.” According to him, the injuries were ante-mortem and the deceased had died as a result of those injuries.

5. In due course, five accused were tried in connection with the murder of said Balaprasad Pathak for the offence punishable under Section 302 read with Section 149 IPC in Sessions Trial No.173 of 2005 before the First Additional Sessions Judge, Damoh, Madhya Pradesh. After considering the evidence on record, the Trial Court concluded that all the five accused were members of an unlawful assembly and had entered the house of the deceased on the fateful night with the common object of causing death of the deceased and as such, they were guilty of the offence punishable under Section 302 read with Section 149 IPC.

Holding them guilty of the aforesaid offence, by its judgment dated 19.12.2001, the Trial Court sentenced them to suffer life imprisonment and to pay fine in the sum of Rs.500/- each, in default whereof, each of the convicts was to undergo further rigorous imprisonment of three months. The view so taken by the Trial Court was challenged by way of Criminal Appeal No.2676 of 2008 by four accused while Criminal Appeal No.158 of 2009 was filed by accused Kailash Nayak.

6. Insofar as accused Himmu @ Hemchand and Khushiram, who were armed with sharp cutting weapons, the High Court found as under:-

“16. Appellants No.2 and 4 namely Himmu @ Hemchand and Khushiram were armed with axe, i.e. deadly weapons. They inflicted blows on the vital part of deceased as a result of which, deceased died on the spot. Evidence of causing injury by axe is against the appellants Himmu @ Hemchand and Khushiram. Hence, in our opinion, the Trial Court has rightly held the appellants guilty for commission of offence of murder. Other three accused persons namely; Killy @ Kailash and Devendra (appellants No. 1 and 3 in Cr. A No. 2676/2008) and appellant Kailash Nayak (appellant in Cr.A.No. 158/2009) have been convicted with the aid of Section 149 of IPC. Allegation against them is that they entered in the house and they were armed with lathis and Ballam. From the evidence, this fact has also been proved that deceased was facing trial of Section 302 of IPC because he had killed one Rammilan Pathak.”

7. The High Court further found that the other three accused were stated to be armed with lathis and Ballam but there were no injuries which could be associated with lathis and Ballam. The High Court, therefore, gave benefit to said three accused as under:-

“21.From the aforesaid quoted judgment, the principle of law is that “the member of unlawful assembly may have committed for the offence caused by another accused, if he has knowledge about the act committed by the main accused”. In the present case, evidence is that the accused entered the house of deceased and thereafter, two accused had inflicted blow by axe. The other accused persons did not give any blow on the deceased. It is alleged that they were present on the spot. There was previous enmity between the accused persons and the deceased, he was also facing criminal trial. Hence, it cannot be ruled out that other three persons, who had not inflicted any injury may have been named along with the other accused persons.

22. Looking to the evidence on record, in our opinion, the conviction of three appellants namely; Killu @ Kailash, Devendra and Kailash Nayak, who were armed with lathis and Ballam and did not inflict any blow with the aid of Section 149 of IPC, is not proper. There is lack of sufficient evidence to prove them guilty for commission of offence under Section 149 of IPC beyond reasonable doubt. Hence, the appeal filed by appellant Kailash Nayak (Cr. Appeal No. 158/2009) is hereby allowed.

23. Cr. Appeal No.2676/2008, filed by four accused/ appellants is partly allowed. Appeal filed by appellants No. 2 and 4 namely; Himmu @ Hemchand and Khushiram is hereby dismissed. They are convicted for commission of offence punishable under Section 302 of IPC and awarded a sentence of life. Appellant No.2 Himmu @ Hemchand is on bail. His bail bonds are hereby cancelled. He is directed to surrender before the Trial Court for facing remaining jail sentence.

24. Appeal filed by the appellants No.1 and 3 namely; Killu @ Kailash and Devendra [Cr.Appeal No.2676/2008] is hereby allowed. They are acquitted from the charge of Section 302/149 of IPC. The judgment passed by the trial Court in regard to appellants No.1 and 3 namely; Killu @ Kailash and Devendra, is hereby set aside. Appellants Killu @ Kailash, Devendra and Kailash Nayak, are on bail, their bail bonds are hereby discharged.”

8. The State, being aggrieved by the order of acquittal of accused Killu @ Kailash, Devendra and Kailash Nayak, has preferred the instant appeals. We heard Mr. Varun K. Chopra, Deputy Advocate General (Madhya Pradesh), in support of the Appeal and Mr. S.K. Shrivastava and Mr. R.R. Rajesh, learned Advocates who appeared for three acquitted accused.

9. Since the instant case depends upon the extent and application of the principle of vicarious liability under Section 149 of the IPC, at the outset, we may consider the leading case ofMasalti vs. State of U.P.1The submission of the appellants therein was that mere presence in an assembly would not make a person member of an unlawful assembly unless it was shown that he had done something or omitted to do something which would make him a member of unlawful assembly. Reliance was placed by said appellants on the earlier judgment of this Court inBaladin vs. State of Uttar Pradesh2. The issue was dealt with as under:-

“… … The observation of which Mr. Sawhney relies, prima facie, does seem to support his contention; but, with respect, we ought to add that the said observation cannot be read as laying down a general proposition of law that unless an overt act is proved against a person who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of such an unlawful assembly. In appreciating the effect of the relevant observation on which Mr. Sawhney has built his argument, we must bear in mind the facts which were found in that case. It appears that in the case of Baladin2, the members of the family of the appellants and other residents of the village had assembled together; some of them shared the common object of the unlawful assembly, while others were merely passive witnesses. Dealing with such an assembly, this Court observed that the presence of a person in an assembly of that kind would not necessarily show that he was a member of an unlawful assembly.

What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly ,and he entertained along with the other members of the assembly the common object as defined by s.141, I.P.C. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of s. 141, is an unlawful assembly.

The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by s.141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by this Court in the case of Baladin2 assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly.

In fact, s.149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence. is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by s.149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. Therefore, we are satisfied that the observations made in the case of Baladin2 must be read in the context of the special facts of that case and cannot be treated as laying down an unqualified proposition of law such as Mr. Sawhney suggests.”

(underlined by us)

10. After considering the cases on the point including Masalti1, the order of acquittal passed by the High Court was set aside by this Court in State of Maharashtra vs. Ramlal Devappa Rathod and others3. Relevant paragraphs of the decision are:-

“22. We may at this stage consider the law of vicarious liability as stipulated in Section 149 IPC. The key expressions in Section 149 IPC are:

(a) if an offence is committed by any member of an unlawful assembly;

(b) in prosecution of common object of that assembly;

(c) which the members of that assembly knew to be likely to be committed in prosecution of that object;

(d) every person who is a member of the same assembly is guilty of the offence. This section makes both the categories of persons, those who committed the offence as also those who were members of the same assembly liable for the offences under Section 149 IPC, if other requirements of the section are satisfied. That is to say, if an offence is committed by any person of an unlawful assembly, which the members of that assembly knew to be likely to be committed, every member of that assembly is guilty of the offence. The law is clear that membership of unlawful assembly is sufficient to hold such members vicariously liable.

23. It would be useful to refer to certain decisions of this Court. In State of U.P. v. Kishanpal4 it was observed: (SCC p. 93, para 47)

“47. … It is well settled that once a membership of an unlawful assembly is established it is not incumbent on the prosecution to establish whether any specific overt act has been assigned to any accused. In other words, mere membership of the unlawful assembly is sufficient and every member of an unlawful assembly is vicariously liable for the acts done by others either in the prosecution of the common object of the unlawful assembly or such which the members of the unlawful assembly knew were likely to be committed.” Further, in Amerika Rai v. State of Bihar5 it was observed as under: (SCC p. 682, para 13)

“13. The law of vicarious liability under Section 149 IPC is crystal clear that even the presence in the unlawful assembly, but with an active mind, to achieve the common object makes such a person vicariously liable for the acts of the unlawful assembly.”

24. The liability of those members of the unlawful assembly who actually committed the offence would depend upon the nature and acceptability of the evidence on record. The difficulty may however arise, while considering the liability and extent of culpability of those who may not have actually committed the offence but were members of that assembly. What binds them and makes them vicariously liable is the common object in prosecution of which the offence was committed by other members of the unlawful assembly.

Existence of common object can be ascertained from the attending facts and circumstances. For example, if more than five persons storm into the house of the victim where only few of them are armed while the others are not and the armed persons open an assault, even unarmed persons are vicariously liable for the acts committed by those armed persons. In such a situation it may not be difficult to ascertain the existence of common object as all the persons had stormed into the house of the victim and it could be assessed with certainty that all were guided by the common object, making every one of them liable. Thus when the persons forming the assembly are shown to be having same interest in pursuance of which some of them come armed, while others may not be so armed, such unarmed persons if they share the same common object, are liable for the acts committed by the armed persons.”

11. If we now consider the facts in the present matter, the case lies in a short compass. The case of the prosecution that five accused had entered the house of the deceased on the fateful night is accepted. It is also found that each one of them was separately armed and two of them were armed with sharp cutting weapons. As far as other three accused i.e. the present respondents were concerned, the first one had a Ballam while the other two were having lathis. It is true that the deceased had only two injuries on the person which were the cause of death. To the extent that the persons who were armed with sharp cutting weapons were found responsible for causing the death is also not disputed or challenged.

The evidence on record fully establishes that the present respondents had also accompanied those two accused persons who were found responsible for the crime and all of them had entered the house of the deceased around midnight. It is crucial to note that the incident did not happen in any public place where the presence of a non-participating accused could, at times, be labelled as that of an innocent bystander. The role played by each one of them was clear and specific. They had stormed into the house in the dead of the night.

12. On the strength of the principles accepted and laid down in the cases as aforementioned, their liability is fully established. Merely because the other three accused persons i.e. the present respondents had not used their weapons does not absolve them of the responsibility and vicarious liability on which the very idea of charge under Section 149 IPC is founded. For the application of the principle of vicarious liability under Section 149 IPC what is material to establish is that the persons concerned were members of an unlawful assembly, the common object of which was to commit a particular crime. The fact that five persons were separately armed and had entered the house of the deceased during night time is clearly indicative that each one of them was a member of that unlawful assembly, the object of which was to commit the crime with which they came to be charged in question. The High Court was not justified in granting benefit to those three accused.

13. The presence of the respondents in the house of the deceased; the fact that they were armed; the fact that all of them had entered the house around midnight and further fact that two out of those five accused used their deadly weapons to cause the death of the deceased was sufficient to attract the principles of vicarious liability under Section 149 IPC.

14. The High Court was not justified in entertaining a doubt that it could not be ruled out that the respondents were merely named along with the other accused persons. There was absolutely no room for such doubt. The testimony of the eye witnesses namely the wife and the son, who were occupants of the same house, was quite clear and cogent.

15. We have, therefore, no hesitation in allowing these Appeals. We, thus, set aside the view taken by the High Court insofar as the present respondents namely Killu @ Kailash, Devendra and Kailash Nayak are concerned. We set aside their acquittal as recorded by the High Court and restore the judgment and order of conviction passed by the Trial Court in Sessions Trial No. 173 of 2005 against said respondents.

16. The respondents shall surrender within three weeks, failing which the concerned police shall immediately arrest them and send them to custody to undergo the sentence imposed upon them. A copy of this Judgment shall be sent to the concerned Chief Judicial Magistrate and the Police Station for immediate compliance.

J. [Uday Umesh Lalit]

J. [Indu Malhotra]

New Delhi;

November 19, 2019.


1 (1964)8 SCR 133

2 AIR 1956 SC 181

3 (2015) 15 SCC 77

4 (2008) 16 SCC 73

5 (2011) 4 SCC 677


OFFENCES AFFECTING HUMAN BODY : Pakistan Penal Code 1860

OF OFFENCES AFFECTING THE HUMAN BODY

Of Offences Affecting Life

299. Definitions:

In this Chapter, unless there is anything repugnant in the subject or context:

(a) “adult” means a person who has attained the age of eighteen years;

(b) “arsh” means the compensation specified in this Chapter to be paid to the victim or his heirs under this Chapter;

(c) “authorised medical officer” means a medical officer or a Medical board, howsoever designated, authorised by the Provincial Government;

(d) “daman” means the compensation determined by the Court to be paid by the offender to the victim for causing hurt not liable to arsh;

(e) “diyat” means the compensation specified in Section 323 payable to the heirs of the victim;

(f) “Government” means the Provincial Government;

(g) “ikrah-e-tam” means putting any person, his spouse or any of his blood relations within the prohibited degree of marriage in fear of instant death or instant, permanent impairing of any organ of the body or instant fear of being subjected to sodomy or ziha-bil-jabr;

(h) “ikrah-e-naqis” means any form of duress which does not amount to ikrah-i-tam;

(i) “minor” means a person who is not an adult;
(ii) “offence committed in the name or on the pretext of honour” means an offence committed in the name or on the pretext of karo kari, siyah kari or similar other customs or practices;] 112

(j) “qatl” means causing death of a person;

(k) “qisas” means punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed qatl-iamd in exercise Of the right of the victim or a Wali;

(l) “ta’zir” means purushment other than qisas, diyat, arsh , or daman; and

(m) “wali” means a person entitled to claim qisas.

300. Qatl-e-Amd:

Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with-the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit qatl-e-amd.

301. Causing death of person other than the person whose death was intended:

Where a person, by doing anything which he intends or knows to be likely to cause death, causes death of any person whose death he neither intends nor knows himself to be likely to cause, such an act committed by the offender shall be liable for qatl-i-amd.

302. Punishment of qatl-i-amd:

Whoever commits qatl-e-amd shall, subject to the provisions of this Chapter be:
(a) punished with death as qisas;
(b) punished with death or imprisonment for life as ta’zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in Section 304 is not available; or
(c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the injunctions of Islam the punishment of qisas is not applicable 113

Provided that nothing in this clause shall apply to the offence of qatl-i-amd if committed in the name or on the pretext of honour and the same shall fall within the ambit of (a) and (b), as the case may be.

303. Qatl committed under ikrah-i-tam or ikrah-i-naqis:

Whoever commits qatl:
(a) under Ikrah-i-tam shall be punished with imprisonment for a term which may extend to twenty-five years but shall not be less than ten years and the person causing ‘ikrah-i-tam’ shall be punished for the kind of Qatl committed as a consequence of ikrah-i-tam; or
(b) under ‘ikrah-i-naqis’ shall be punished for the kind of Qatl committed by him and the person, causing ‘ikrah-i-naqis, shall be punished with imprisonment for a term which may extend to ten years.

304. Proof of qatl-i-amd liable to qisas, etc.:

(1) Proof of qatl-i-amd shall be in any of the following forms, namely: –
(a) the accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence; or
(b) by the evidence as provided in Article 17 of the Qanun-e-Shahadat, 1984 (P.O. No. 10 of 1984).

(2) The provisions of sub-section (1) shall, mutatis, mutandis, apply to a hurt liable to qisas.

305. Wali:

In case of qatl, the wali shall be–
(a) the heirs of the victim, according to his personal law 115[but shall not include the accused or the convict in case of qatl-i-amd if committed in the name or on the pretext of honour] 115; and
(b) the Government, if there is no heir.

306. Qatl-e-amd not liable to qisas:

Qatl-i-Amd shall not be liable to qisas in the following cases, namely:–
(a) when an offender is a minor or insane:
Provided that, where a person liable to qisas associates himself in the commission of the offence with a person not liable to qisas, with the intention of saving himself from qisas, he shall not be exempted from qisas;
(b) when an offender causes death of his child or grand-child, how low-so-ever; and
(c) when any wali of the victim is a direct descendant, how low-so-ever, of the offender.

307. Cases in which Qisas for qatl-i-amd shall not be enforced:

(1) Qisas for qatl-i-amd shall not be enforced in the following cases, namely:–
(a) when the offender dies before the enforcement of qisas;
(b) when any wali voluntarily and without duress, to the satisfaction of the Court, waives the right of qisas under Section 309 or compounds under Section 310 and
(c) when the right of qisas devolves on the offender as a result of the death of the wali of the victim, or on, the person who has no right of qisas against the offender.

(2) To satisfy itself that the wali has waived the right of qisas under Section 309 or compounded the right of qisas under Section 310 voluntarily and without duress the Court shall take down the statement of the wali and such other persons as it may deem necessary on oath and record an opinion that it is satisfied that the Waiver or, as the case may be, the composition, was voluntary and not the result of any duress.

Illustrations

(i) A kills Z, the maternal uncle of his son B. Z has no other wali except D the wife of A. D has the right of qisas from A but if D dies, the right of qisas shall devolve on her son B who is also the son of the offender A. B cannot claim qisas against his father. Therefore, the qisas cannot be enforced.

(ii) B kills Z, the brother of their husband A. Z has no heir except A. Here A can claim qisas from his wife B. But if A dies, the right of qisas shall devolve on his son D who is also son of B, the qisas cannot be enforced against B.

308. Punishment in qatl-i-amd not liable to qisas, etc.:

(1) Where an offender guilty of qatl-i-amd is not liable to qisas under Section 306 or the gisas is not enforceable under clause (c) of Section 307, he shall be liable to diyat:
Provided that, where the offender is minor or insane, diyat shall be payable either from his property or, by such person as may be determined by the Court:
Provided further that where at the time of committing qatl-i-amd the offender being a minor, had attained sufficient maturity of being insane, had a lucid interval, so as to be able to realize the consequences of his act, he may also be punished with imprisonment of either description for a term which may extend to 116[twenty-five years] 116 as ta’zir.
Provided further that, where the qisas is not enforceable under clause (c) of Section 307, the offender shall be liable to diyat only if there is any wali other than offender and if there is no wali other than the offender, he shall be punished with imprisonment of either description for a term which may extend to 117[twenty-five years] 117 years as ta’zir.

(2) Notwithstanding anything contained in sub-section (i), the Court, having regard to the facts and circumstances of the case in addition to the punishment of diyat, may punish the offender with imprisonment of either description for a term which may extend to twenty-five years years, as ta’zir.

309. Waiver (Afw) of qisas in qatl-i-amd:

(1) In the case of qatl-i-amd, an adult sane wali may, at any time and without any compensation, waive his right of qisas:
Provided that the right of qisas shall not be waived;
(a) where the Government is the wali, or
(b) where the right of qisas vests in a minor or insane.

(2) Where a victim has more than one Wali any one of them may waive his right of qisas:
Provided that the wali who does not waive the right of qisas shall be entitled to his share of diyat.

(3) Where there are more than one victim, the waiver of the right of qisas by the wali of one victim shall not affect the right of qisas of the wali of the other victim.

(4) Where there are more than one offenders, the waiver of the right of qisas against one offender shall not affect the right of qisas against the other offender.

310. Compounding of qisas (Sulh) in qatl-i-amd:

(1) In the case of qatl-i-amd, an adult sane wali may, at any time on accepting badl-i-sulh, compound his right of qisas:

Provided that a female shall not be given in marriage or otherwise in badal-i-sulh.

(2) Where a wali is a minor or an insane, the wali of such minor or insane wali may compound the right of qisas on behalf of such minor or insane wali:
Provided that the value of badf-i-sufh shall not be less than the value of diyat.

(3) Where the Government is the wali, it may compound the right of qisas:
Provided that fee value of badi-i-sulh shall not be less than the value of diyat.

(4) Where the badl-i-sulh is not determined or is a property or a right the value of which cannot be determined in terms of money under Shari’ah, the right of qisas shall be deemed to have been compounded and the offender shall be liable to diyat.

(5) Badl-i-sulh may be paid or given on demand or on a deferred date as may be agreed upon between the offender and the wali.

Explanation: In this section, Badl-i-sulh means the mutually agreed compensation according to Shari’ah to be paid or given by the offender to a wali in cash or in kind or in the form of movable or immovable property.

310A. Punishment for giving a female in marriage or otherwise in badal-i-sulh, wanni or swara:

Whoever gives a female in marriage or otherwise compels her to enter into marriage, as badal-i-sulh, wanni or swara or any other custom or practice under any name, in consideration of settling a civil dispute or a criminal liability, shall be punished with imprisonment of either description for a term which may extend to seven years but shall not be less than three years and shall also be liable to fine of five hundred thousand rupees..

311. Ta’zir after waiver or compounding of right of qisas in qatl-i-amd:

Notwithstanding anything contained in Section 309 or Section 310, where all the wali do not waive or compound the right of qisas, or 122[if] 122 the principle of fasad-fil-arz the Court may, 123[] 123 having regard to the facts and circumstances of the case, punish an offender against whom the right of qisas has been waived or compounded with death or imprisonment for life or imprisonment of either description for a term of which may extend to fourteen years as ta’zir

Provided that if the offence has been committed in the name or on the pretext of honour, the imprisonment shall not be less than ten years.

Explanation: For the purpose of this section, the expression fasad-fil-arz shall include the past conduct of the offender, or whether he has any previous convictions, or the brutal or shocking manner in which the offence has been committed which is outrageous to the public conscience, or if the offender is considered a potential danger to the community  or if the offence has been committed in the name or on the pretext of honour.

312. Qatl-i-amd after waiver or compounding of qisas:

Where a wali commits qatl-iamd of a convict against whom the right of qisas has been waived under Section 309 or compounded under Section 310, such wali shall be punished with-

(a) qisas, if he had himself, waived or compounded the right of qisas against the convict or had knowledge of such waiver of-composition by another wali, or
(b) diyat, if he had no knowledge of such waiver or composition.

313. Right of qisas in qatl-i-amd:

(1) Where there is only one wali, he alone has the right of qisas in qatl-i-amd but, if there are more than one, the right of qisas vests in each of them.

(2) If the victim-
(a) has no wali, the Government shall have the right of qisas; or
(b) has no wali other than a minor or insane or one of the wali is a minor or insane, the father or if he is not alive the paternal grandfather of such wali shall have the right of qisas on his behalf:

Provided that, if the minor or insane wali has no father or paternal grandfather, how high-so-ever, alive and no guardian has been appointed by the Court, the Government shall have the right of qisas on his behalf.

314. Execution of qisas in qatl-i-amd:

(1) Qisas in Qatll-i-amd shall be executed by a functionary of the Government by causing death of the convict as the Court may direct.

(2) Qisas shall not be executed until all the wali are present at the time of execution, either personally or through their representatives authorised by them in writing in this behalf: Provided that where a wali or his representative fails to present himself on the date, time and place of execution of qisas after having been informed of the date, time and place as certified by the Court, an officer authorised by the Court shall give permission for the execution of qisas and the Government shall cause execution of qisas in the absence of such wali.

(3) If the convict is a woman who is pregnant, the Court may, in consultation with an authorised medical officer, postpone the execution of qisas up to a period of two years after the birth of the child and during this period she may be released on bail on furnishing of security to the satisfaction of the Court, or, if she is not so released she shall, be dealt with as if sentenced to simple imprisonment.

315. Qatl shibh-i-amd:

Whoever, with intent to cause harm to the body or mind of any person, causes the death of that or of any other person by means of a weapon or an act which in the ordinary course of nature is not likely to cause death is said to commit qatl shibh-i-amd.

Illustration
A in order to cause hurt strikes Z with a stick or stone which in the ordinary course of nature is not likely to cause death. Z dies as a result of such hurt. A shall be guilty of Qatl shibh-i-amd.

316. Punishment for Qatl shibh-i-amd:

Whoever commits qatl shibh-i-amd shall be liable to diyat and may also be punished with imprisonment of either description for a term which may extend to twenty-five years years as ta’zir.

317. Person committing qatl debarred from succession:

Where a person committing qatl-i-amd or Qatl shibh-i-amd is an heir or a beneficiary under a will, he shall be debarred from succeeding to the estate of the victim as an heir or a beneficiary.

318. Qatl-i-khata:

Whoever, without any intention to cause death of, or cause harm to, a person causes death of such person, either by mistake of act or by mistake of fact, is said to commit qatl-i-khata.

Illustrations
(a) A aims at a deer but misses the target and kills Z who is standing by, A is guilty of qatl-i-khata.

(b) A shoots at an object to be a boar but it turns out to be a human being. A is guilty of qatl-i-khata.

319. Punishment for qatl-i-khata:

Whoever commits qatl-i-khata shall be liable to diyat:

Provided that, where qatl-i-khata is committed by a rash or negligent act, other than rash or negligent driving, the offender may, in addition to diyat, also be punished with imprisonment of either description for a term which may extend to five years as ta’zir.

320. Punishment for qatl-i-khata by rash or negligent driving:

Whoever commits qatl-ikhata by rash or negligent driving shall, having regard to the facts and circumstances the case, in addition to diyat, be punished with imprisonment of either description for a term which may extend to ten years.

321. Qatl-bis-sabab:

Whoever, without any intention, cause death of, or cause harm to, any person, does any unlawful act which becomes a cause for the death of another person, is said to commit qatl-bis-sabab.

Illustration
A unlawfully digs a pit in the thoroughfare, but without any intention to cause death of, or harm to, any person, B while passing from there falls in it and is killed. A has committed qatl-bis-sabab.

322. Punishment for qatl-bis-sabab:

Whoever commit qatl bis-sabab shall be liable to diyat.

323. Value of diyat:

(1) The Court shall, subject to the Injunctions of Islam as laid down in the Holy Qur’an and Sunnah and keeping in view the financial position of the convict and the heirs of the victim, fix the value of diyat which shall not be less than the value of thirty thousand six hundred and thirty grams of silver.

(2) For the purpose of sub-section (1), the Federal Government shall, by notification in the official Gazette, declare the value of Silver, on the first day of July each year or on such date as it may deem fit, which shall be the value payable during a financial year.

324. Attempt to commit qatl-i-amd:

Whoever does any act with such intention or knowledge, and under such circumstances, that, if he by that act caused qatl, he would be guilty of qatl-i-amd, shall be punished with imprisonment for either description for a term which may extend to ten years 129[but shall not be less than five years if the offence has been committed in the name or on the pretext of honour] 129, and shall also be liable to fine, and, if hurt is caused to any person by such act, the offender shall, in addition to the imprisonment and fine as aforesaid, be liable to the punishment provided for the hurt caused:

Provided that where the punishment for the hurt is qisas which is not executable, the offender shall be liable to arsh and may also be punished with imprisonment of either description for a term which may extend to seven years.

325. Attempt to commit suicide:

Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.

326. Thug:

Whoever shall have been habitually associated with any other or others for the purpose of committing robbery or child-stealing by means of or accompanied with Qatl, is a thug.

327. Punishment:

Whoever is a thug, shall be punished with imprisonment for life and shall also be liable to fine.

328. Exposure and abandonment of child under twelve years by parent or person having care of it:

Whoever being the father or mother of a child under the age of twelve years, or having the care of such child, shall expose or leave such child in any place with the intention of wholly abandoning such child, shall be punished with imprisonment’ of either description for- a term which may extend to seven years, or with fine, or with both.
Explanation: This section is not intended to prevent the trial of the offender for qatl-i-amd or qatl-i-shibh-i-amd or qatl-bis-sabab, as the case may be, if the child dies in consequence of the exposure.

329. Concealment of birth by secret disposal of dead body:

Whoever, by secretly burying or otherwise disposing of the dead body of a child whether such child dies before or after or during its birth, intentionally conceals or endeavours to conceal the birth shall be punishable with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

330. Disbursement of diyat:

The diyat shall be disbursed among the heirs of the victim according to their respective shares in inheritance: Provided that, where an heir foregoes his share, the diyat shall not be recovered to the extent of his share.

331. Payment of Diyat:

(1) The diyat may be made payable in lumpsum or in instalments spread over a period of three years from the date of the final judgment.

(2) Where a convict fails to pay diyat or any part thereof within the period specified in subsection (1), the convict may be kept in jail and dealt with in the same manner as if sentenced to simple imprisonment until the diyat is paid full or may be released on bail If he furnishes security equivalent to the amount of diyat to the satisfaction of the Court.

(3) Where a convict dies before the payment of diyat or any part thereof, it shall be recovered from his estate.


332 Hurt:

(1) Whoever causes pain, harm, disease, infianity or injury to any person or impairs, disables 130[, disfigures, defaces] 130 or dismembers any organ of the body or part thereof of any person without causing his death, is said to cause hurt.

Explanation:- disfigure means disfigurement of face or disfigurement or dismemberment of any organ or any part of of the organ of the human body which impairs or injures or corrodes or deforms the symmetry or appearsance of a person.

(2) The following are the kinds of hurt:
(a) Itlaf-i-udw
(b) Itlaf-i-salahiyyat-i-udw
(c) shajjah
(d) jurh and
(e) all kinds of other hurts.

333. Itlaf-i-udw:

Whoever dismembers, amputates, severs any limb or organ of the body of another person is said to cause Itlaf-i-udw.

334. Punishment for Itlaf-udw:

Whoever by doing any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person causes Itlaf-i-udw of any person, shall, in consultation with the authorised medical officer, be punished with qisas, and if the qisas is not executable keeping in view the principles of equality in accordance with the Injunctions of Islam, the offender shall be liable to arsh and may also be punished with imprisonment of either description for a term which may extend to ten years as ta’zir.

335. Itlaf-i-salahiyyat-i-udw:

Whoever destroys or permanently impairs the functioning, power or capacity of an organ of the body of another person, or causes permanent disfigurement is said to cause itlaf-i-salahiyyat-i-udw.

336. Punishment for itlaf-i-salahiyyat-i-udw:

Whoever, by doing any act with the intention of causing hurt to any person, or with the knowledge that he is likely to cause hurt to any person, causes itlaf-i-salahiyyat-i-udw of any person, shall, in consultation with the authorised medical officer, be punished with qisas and if the qisas is not executable, keeping in view the principles of equality in accordance with the Injunctions of Islam, the offender shall be liable to arsh and may also be punished with imprisonment of either description for a term which may extend to ten years as taz’ir.

336A. Hurt caused by corrosive substance:
Whoever with the intention or knowingly causes or attempts to cause hurt by means of a corrosive substance which is deleterious to human body when it is swallowed, inhaled, comes into contact or received into human body or otherwise shall be said to cause hurt by corrosive substance.

Explanation:- In this sub-section, unless the context otherwise requires, “corrosive substance” means a substance which may destroy, cause hurt, deface or dismember any organ of the human body and includes every kind of acid, poison, explosive or explosive substance, heating substance, noxious thing, arsenic or any other chemical which has a corroding effect and whcih is deleterious to human body.

336B. Punishment for hurt by corrosive substance:

Whoever causes hurt by corrosive substance shall be punished with imprisonment for life or imprisonment of either description which shall not be less than fourteen years and a minimum fine of one million rupees.

337. Shajjah:

(1) Whoever causes, on the head or face of any person, any hurt which does not amount to itlaf-i-udw or itlaf-i-salahiyyat-i-udw, is said to cause shajjah.

(2) The following are the kinds of shajjah namely:-
(a) Shajjah-i-Khafifah
(b) Shajjah-i-mudihah
(c) Shajjah-i-hashimah
(d) Shajjah-i-munaqqilah
(e) Shaijah-i-ammah and
(f) Shajjah-i-damighah

(3) Whoever causes shajjah:-
(i) without exposing bone of the victim, is said to cause shajjah-i-khafifah;
(ii) by exposing any bone of the victim without causing fracture, is said to cause shajjah-imudihah;
(iii) by fracturing the bone of the victim, without dislocating it, is said to cause shajjah-ihashimah;
(iv) by causing fracture of the bone of the victim and thereby the bone is dislocated, is said to cause shajfah-i-munaqqilah;
(v) by causing fracture of the skull of the victim so that the wound touches the membrane of the brain, is said to cause shajjah-i-ammah;
(vi) by causing fracture of the skull of the victim and the wound ruptures the membrane of the brain is said to cause shajjah-i-damighah.

337-A. Punishment of shajjah:

Whoever, by doing any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, causes-
(i) shajjah-i-khafifah to any person, shall be liable to daman and may also be punished with imprisonment of either description for a term which may extend to two years as ta’zir,
(ii) shajjah-i-mudihah to any person, shall, in consultation with the authorised medical officer, be punished with qisas, and if the, qisas is not executable keeping in view the principles of equality, in accordance with the Injunctions of Islam, the convict shall be liable to arsh which shall be five percent of the diyat and may also be punished with imprisonment of either description for a term which may extend to five years as ta’zir,
(iii) shajjah-i-hashimah to any person, shall be liable to arsh which shall be ten per cent of the diyat and may also be punished with imprisonment of either description for a term which may extend to ten years as ta’zir,
(iv) shajiah-i-munaqqilah to any person, shall be liable to arsh which shall be fifteen per cent of the diyat and may also be punished with imprisonment of either description for a term which may extend to ten years as ta ‘zir,
(v) shajjah-i-ammah to any person, shall be liable to arsh which shall be one-third of the diyat and may also be punished with imprisonment of either description for a term which may extend to ten years as ta’zir, and
(vi) shajjah-i-damighah to any person shall be liable to arsh which shall be one-half of diyat and may also be punished with imprisonment of either description for a term which may extend to fourteen years as ta’zir.

337-B. Jurh:

(1) Whoever causes on any part of the body of a person, other than the head or face, a hurt which leaves a mark of the wound, whether temporary or permanent, is said to cause jurh.

(2) Jurh is of two kinds, namely:-
(a) Jaifah ; and
(b) Ghayr-jaifah.

337-C. Jaifah:
Whoever causes jurh in which the injury extends to the body cavity of the trunk, is said to cause jaifah.

337-D. Punishment for jaifah:
Whoever by doing any act with the intention of causing hurt to a person or with the knowledge that he is likely to cause hurt to such person, causes jaifah to such person, shall be liable to arsh which shall be one-third of the diyat and may also be punished with imprisonment of either description for a term which may extend to ten years as ta’zir.

337-E. Ghayr-jaifah:
(1) Whoever causes jurh which does not amount to jaifah, is said to cause ghayr-jaifah.

(2) The following are the kinds of ghayr-faifah, namely:-
(a) damihah
(b) badi’ah
(c) mutalahimah
(d) mudihah
(e) hashimah; and
(f) munaqqilah

(3) Whoever causes ghayr-jaifah—
(i) in which the skin is ruptured and bleeding occurs, is said to cause damiyah;
(ii) by cutting or incising the flesh without exposing the bone, is said to cause badi’ah;
(iii) by lacerating the flesh, is said to cause mutalahimah;
(iv) by exposing the bone, is said to cause mudihah;
(v) by causing fracture of a bone without dislocating it, is said to cause hashimah; and
(vi) by fracturing and dislocating the bone, is said to cause munaqqilah.

337-F. Punishment of ghayr-jaifah:
Whoever by doing any act with the intention of causing hurt to any person, or with the knowledge that he is likely to cause hurt to any person, causes:-
(i) damihah to any person, shall be liable to daman and may also be punished with imprisonment of either description for a term which may extend to one year as ta’zir;
(ii) badi’ah to any person, shall be liable to daman and may also be punished with imprisonment of either description for a term which may extend to three years as ta’zir;
(iii) mutafahimah to any person, shall be liable to daman and may also be punished with imprisonment of either description for a term which may extend to three years as ta’zir;
(iv) mudihah to any person, shall be liable to daman and may also be punished with imprisonment of either description for a term which may extend to five years as ta’zir;
(v) hashimah to any person, shall be liable to daman and may also be punished with imprisonment of either description for a term which may extend to five years as ta’zir, and
(vi) munaqqilah to any person, shall be liable to daman and may also be punished with imprisonment of either description for a term which may extend to seven years as ta’zir.

337-G. Punishment for hurt by rash or negligent driving:
Whoever causes hurt by rash or negligent driving shall be liable to arsh or daman specified for the kind of hurt caused and may also be punished with imprisonment of either description for a term which may extend to five years as ta’zir.

337-H. Punishment for hurt by rash or negligent act:
(1) Whoever causes hurt by rash or negligent act, other than rash or negligent driving, shall be liable to arsh or daman specified for the kind of hurt caused and may also be punished with imprisonment of either description for a term which may extend to three years as ta’zir.

(2) Whoever does any act so rashly or negligently as to endanger human life or the personal safety of other, shall be punished with imprisonment of either-description for a term which may extend to three months, or with fine, or with both.

337-I. Punishment for causing hurt by mistake (khata):
Whoever causes hurt by mistake (khata) shall be liable to arsh or daman specified for the kind of hurt caused.

337-J. Causing hurt by mean of a poison:
Whoever administers to or causes to be taken by, any person, any poison or any stupefying, intoxicating or unwholesome drug, or such other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence, or knowing it to be likely that he will thereby cause hurt may, in addition to the punishment of arsh or daman provided for the kind of hurt caused, be punished, having regard to the nature of the hurt caused, with imprisonment of either description for a term which may extend to ten years.

337-K. Causing hurt to extort confession, or to compel restoration of property:
Whoever causes hurt for the purpose of extorting from the sufferer or any person interested in the sufferer any confession or any information which may lead to the detection of any offence or misconduct, or for the purpose of constraining the sufferer, or any person interested in the sufferer, to restore, or to cause the restoration of, any property or valuable security or to satisfy any claim or demand, or to give information which may lead to the restoration of any property, or valuable security shall, in addition to the punishment of qisas, arsh or daman, as the case may be, provided for the kind of hurt caused, be punished, having regard to the nature of the hurt caused, with imprisonment of either description for a term which may extend to ten years as ta’zir.

337-L. Punishment for other hurt:
(1) Whoever causes hurt, not mentioned hereinbefore, which endangers life or which causes the sufferer to remain in severe bodily pain for twenty days or more or renders him unable to follow his ordinary pursuits for twenty days or more, shall be liable to daman and also be punished with imprisonment of either description for a term which may extend to seven years.

(2) Whoever causes hurt not covered by sub-section (1) shall be punished with imprisonment of either description for a term which may extend to two years, or with daman, or with both.

337-M. Hurt not liable to qisas:
Hurt shall not be liable to qisas in the following cases, namely:-
(a) when the offender is a minor or insane:
Provided that he shall be liable to arsh and also to ta’zir to be determined by the Court having regard to the age of offender, circumstances of the case and the nature of hurt caused;
(b) when an offender at the instance of the victim causes hurt to him:
Provided that the offender may be liable to ta’zir provided for the kind of hurt caused by him;
(c) when the offender has caused itlaf-i-udw of a physically imperfect organ of the victim and the convict does not suffer from similar physical imperfection of such organ:
Provided that the offender shall be liable to arsh and may also be liable to ta’zir provided for the kind of hurt caused by him; and
(d) when the organ of the offender liable to qisas is missing:
Provided that the offender shall be liable to arsh and may also be liable to ta’zir provided for the kind of hurt caused by him.

Illustrations
(i) A amputates the right ear of Z, the half of which was already missing. If A’s right ear is perfect, he shall be liable to arsh and not qisas.

(ii) If in (he above illustration, Z’s ear is physically perfect but without power of hearing, A shall be liable to qlsas because the defect in Z’s ear is not physical.

(iii) If in illustration (i) Z’s ear is pierced, A shall be liable to qisas because such minor defect is not physical imperfection.

337-N. Cases in which qisas for hurt shall not be enforced:

(1) The qisas for a hurt shall not be enforced in the following cases, namely:-
(a) when the offender dies before execution of qisas;
(b) when the organ of the offender liable to qisas is lost before the execution of qisas:
Provided that offender shall be liable to arsh, and may also be liable to ta’zir provided for the kind of hurt caused by him;
(c) when the victim waives the qisas or compounds the offence with badl-i-sufh; or
(d) when the right of qisas devolves on the person who cannot claim qisas against the offender under this Chapter:
Provided that the offender shall be liable to arsh, if there is any wali other than the offender, and if there is no wali other than the offender he shall be liable to ta’zir provided for the kind of hurt caused by him.

(2) Notwithstanding anything contained in this Chapter, in all cases of hurt, the Court may, having regard to the kind of hurt caused by him, in addition to payment of arsh, award ta’zir to an offender who is a previous convict, habitual or hardened, desperate or dangerous criminal or the offence has been committed by him in the name or on the pretext of honour.

Provided that the ta’zir shall not be less than one-third of the maximum imprisonment provided for the hurt caused if the offender is a previous convict, habitual, hardened, desperate or dangerous criminal or if the offence has been committed by him in the name or on the pretext of honour.

337-O. Wali in case of hurt:

In the case of hurt: The wali shall be-
(a) the victim:
Provided that, if the victim is a minor or insane, his right of qisas shall be exercised by his father or paternal grandfather, how high-so-ever;
(b) the heirs of the victim, if the later dies before the execution of qisas; and
(c) the Government, in the absence of the victim or the heirs of the victim.

337-P. Execution of qisas for hurt:
(1) Qisas shall be executed in public by an authorised medical officer who shall before such execution examine the offender and take due care so as to ensure that the execution of qisas does not cause the death of the offender or exceed the hurt caused by him to the victim.

(2) The wali shall be present at the time of execution and if the wali or his representative is not present, after having been informed of the date, time and place by the Court an officer authorised by the Court in this behalf shall give permission for the execution of qisas.

(3) If the convict is a woman who is pregnant, the Court may, in consultation with an authorised medical officer, postpone the execution of qisas upto a period of two years after the birth of the child and during this period she may be released on bail on furnishing of security to the satisfaction of the Court or, if she is not so released, shall be dealt with as if sentenced to simple’ imprisonment.

337-Q. Arsh for single organs:
The arsh for causing itlaf of an organ which is found singly in a human body shall be equivalent to the value of diyat.
Explanation: Nose and tongue are included in the organs which are found singly in a human body.

337-R. Arsh for organs in pairs:
The arsh for causing itlaf of organs found in a human body in pairs shall be equivalent to the value of diyat and if itlaf is caused to one of such organs the amount of arsh shall be one-half of the diyat:
Provided that, where the victim has only one such organ or his other organ is missing or has already become incapacitated the arsh for causing itlaf of the existing or capable organ shall be equal to the value of diyat.

Explanation: Hands, feet, eyes, lips and breasts are included in the organs which are found in a human body in pairs.

337-S. Arsh for the organs in quadruplicate:
The arsh for causing itlaf of organs found in a human body in a set of four shall be equal to-
(a) one-fourth of the diyat, if the itlaf is one of such organs;
(b) one-half of the diyat, if the itlaf is of two of such organs;
(c) three-fourth of the diyat, if the itlaf is of three such organs; and
(d) full diyat, if the itlaf is of all the four organs.
Explanation: Eyelids are organs which are found in a human body in a set of four.

337-T. Arsh for fingers:
(1) The arsh for causing itlaf of a finger of a hand or foot shall be one-tenth of the diyat.

(2) The arsh for causing itlaf of a joint of a finger shall be one-thirteenth of the diyat:
Provided that where the itlaf is of a joint of a thumb, the arsh shall be one-twentieth of the diyat.

337-U. Arsh for teeth:
(1) The arsh for causing itlaf of a tooth, other than a milk tooth, shall be one-twentieth of the diyat.

Explanation: The impairment of the portion of a tooth outside the gum amounts to causing itlaf of a tooth.

(2) The arsh for causing itlaf of twenty or more teeth shall be equal to the value of diyat.

(3) Where the itlaf is of a milk tooth, the accused shall be liable to daman and may, also be punished with imprisonment of either description for a term which may extend to one year:
Provided that, where itlaf of a milk tooth impedes the growth of. a new tooth, the accused shall be liable to arsh specified in sub-section (1).

337-V. Arsh for hair:
(1) Whoever uproots:-
(a) all the hair of the head, beard, moustaches eyebrow, eyelashes or any other part of the body shall be liable to arsh equal to diyat and may also be punished with imprisonment of either description for a term which may extend to three years as ta’zir;
(b) one eyebrow shall be liable to arsh equal to one- half of the diyat; and
(c) one eyelash, shall be liable to arsh equal to one fourth of the diyat.

(2) Where the hair of any part of the body of the victim are forcibly removed by any process not covered under sub section (1), the accused shall be liable to daman and imprisonment of either description which may extend to one year.

337-W. Merger of arsh:
(1) Where an accused more than one hurt, he shall be liable to arsh specified for each hurt separately:

Provided that, where:-
(a) hurt is caused to an organ, the accused shall be liable to arsh for causing hurt to such organ and not for arsh for causing hurt to any part of such organ; and
(b) the wounds join together and form a single wound, the accused shall be liable to arsh for one wound.

Illustrations
(i) A amputates Z’s fingers of the right hand and then at the same time amputates that hand from the joint of his writs. There is separate arsh for hand and for fingers. A shall, however, be liable to arsh specified for hand only.

(ii) A twice stabs Z on his thigh. Both the wounds are so close to each other that they form into one wound. A shall be liable to arsh for one wound only.

(2) Where, after causing hurt to a person, the offender causes death of such person by committing qatl liable to diyat, arsh shall merge into such diyat.
Provided that the death is caused before the healing of the wound caused by such hurt.

337-X. Payment of arsh:
(1) The arsh may be made payable in a lump sum or in instalments spread over a period of three years from the date of the final judgment.

(2) Where a convict fails to pay arsh or any part thereof within the period specified in subsection (1), the convict may be kept in jail and dealt with in the same manner as if sentenced to simple imprisonment until arsh is paid in full may be released on bail if he furnishes security equal to amount of arsh to the satisfaction of the Court.

(3) Where a convict dies before the payment of arsh any part thereof, it shall be recovered from his estate.

337-Y. Value of daman:
(1) The value of daman may be determined by the Court keeping in view:-
(a) the expenses incurred on the treatment of victim;
(b) loss or disability caused in the functioning or power of any organ; and
(c) the compensation for the anguish suffered by the victim.

(2) In case of non-payment of daman, it shall be recovered from the convict and until daman is paid in full to the extent of his liability, the convict may be kept in jail and dealt with in the same manner as if sentenced to simple imprisonment or may be released on bail if he furnishes security equal to the amount of daman to the satisfaction of the Court.

337-Z. Disbursement of arsh or daman:
The arsh or daman shall be payable to the victim or, if the victim dies, to his heirs according to their respective shares in inheritance.

338. Isqat-i-Hamal:
Whoever causes woman with child whose organs have not been formed, to miscarry, if such miscarriage is not caused in good faith for the purpose of saving the life of the woman, or providing necessary treatment to her, is said to cause isqat-i-hamal.
Explanation: A woman who causes herself to miscarry is within the meaning of this section.

338-A. Punishment for Isqat-i-haml:
Whoever cause isqat-i-haml shall be liable to punishment as ta’zir-
(a) with imprisonment of either description for a term which may extend to three years, if isqat-i-haml is caused with the consent of the woman; or
(b) with imprisonment of either description for a term which may extend to ten years, if isqat-i-haml is caused without the consent of the woman:
Provided that, if as a result of isqat-i-haml, any hurt is caused to woman or she dies, the convict shall also be liable to the punishment provided for such hurt or death as the case may be.

338-B. Isqat-i-janin:
Whoever causes a woman with child some of whose limbs or organs have been formed to miscarry, if such miscarriage is not caused in good faith for the purpose of saving the life of the woman, is said to cause Isqat-i-janin.
Explanation: A woman who causes herself to miscarry is within the meaning of this section.

338-C. Punishment for Isqat-i-janin:
Whoever causes isqat-i-ianin shall be liable to:-
(a) one-twentieth of the diyat if the child is born dead;
(b) full diyat if the child is born alive but dies as a result of any act of the offender; and
(c) imprisonment of either description for a term which may extend to seven years as ta’zir:
Provided that, if there are more than one child in the womb of the woman, the offender shall be liable to separate diyat or ta’zir, as the case may be/for every such child:
Provided further that if, as a result of isqat-i-fanin, any hurt is caused to the woman or she dies, the offender shall also be liable to the punishment provided for such hurt or death, as the case may be.

338-D. Confirmation of sentence of death by way of qisas or tazir, etc.:
A sentence of death awarded by way of qisas or ta’zir, or a sentence of qisas awarded for causing hurt, shall not be executed, unless it is confirmed by the High Court.

338-E. Waiver or compounding of offences:

(1) Subject to the provisions of this Chapter and Section 345 of the Code of. Criminal Procedure, 1898 (V of 1898), all offences under this Chapter may be waived or compounded and the provisions of Sections 309 and 310 shall, mutatis mutandis, apply to the waiver or compounding of such offences:

Provided that, where an offence has been waived or compounded, the Court may, in its discretion having regard to the facts and circumstances of the case, acquit or award ta’zir to the offender according to the nature of the offence.

Provided further that where an offence under this Chapter has been committed in the name or on the pretext of honour, such offence may be waived or compounded subject to such conditions as the Court may deem fit to impose with the consent of the parties having regard to the facts and circumstances of the case.

(2) All questions relating to waiver or compounding of an offence or awarding of punishment under Section 310, whether before or after the passing of any sentence, shall be determined by trial Court:
Provided that where the sentence of qisas or any other sentence is waived or compounded during the pendency of an appeal, such questions may be determined by the trial Court.

338-F. Interpretation:
In the interpretation and application of the provisions of this Chapter, and in respect of matter ancillary or akin thereto, the Court shall be guided by the Injunctions of Islam as laid down in the Holy Qur’an and Sunnah.

338-G. Rules:
The Government may, in consultation with the Council of Islamic ideology, by notification in the official Gazette, make such rules as it may consider necessary for carrying out the purposes of this Chapter.

338-H. Saving:

Nothing in this Chapter, except Sections 309. 310 and 338-E. shall apply to cases pending before any Court immediately before the commencement of the Criminal Law (Second Amendment) Ordinance, 1990 (VII of 1990), or to the offences committed before such commencement.


Ravi S/o. Ashok Ghumare Vs. State of Maharashtra – 03/10/2019

SUPREME COURT OF INDIA JUDGMENTS

MurderDeath sentence confirmed-The victim was barely a two-year old baby whom the appellant kidnapped and apparently kept on assaulting over 4-5 hours till she breathed her last. The appellant who had no control over his carnal desires surpassed all natural, social and legal limits just to satiate his sexual hunger. He ruthlessly finished a life which was yet to bloom. The appellant instead of showing fatherly love, affection and protection to the child against the evils of the society, rather made her the victim of lust.

ACT: Sections 302, 363, 376 and 377 of the Indian Penal Code

SUPREME COURT OF INDIA

Ravi S/o. Ashok Ghumare Vs. State of Maharashtra

[Criminal Appeal Nos. 1488-1489 of 2018]

BENCH:

J. ROHINTON FALI NARIMAN

J. SURYA KANT

J R.Subhash Reddy

SURYA KANT, J.

These appeals assail the judgment dated 20th January, 2016 passed by the High Court of Judicature at Bombay, Bench at Aurangabad, confirming the death reference in the Sessions Case No. 127 of 2012 decided by the Additional Sessions Judge, Jalna, in which the appellant having been found guilty of committing offences punishable under Sections 302, 363, 376 and 377 of the Indian Penal Code (for short, “the IPC”), has been awarded the sentence of death under Section 302, IPC along with the sentence of rigorous imprisonment(s) of different durations with fine for the rest of offences. The Trial Court as well as the High Court have concurrently held that the case falls within the exceptional category of ‘rarest of the rare’ cases where all other alternative options but to award death sentence, are foreclosed.

2. The facts leading to the aforestated conclusion are to the following effect:-

3. The informant Iliyas Mohinuddin (P.W.9) had been a fruitseller based in Jalna. On 06.03.2012 at about 5.00 p.m. while he was as usual busy in selling fruits, his wife informed him that their daughter (in short, ‘the victim child’) who was 2 years old, was missing. He along with his relatives started looking for the child. During their search, the informant came to know from Azbar (P.W.2) that the appellant had been spotted drunk and was distributing chocolates to small children in the lane near the Maroti Temple. The appellant was also a resident of the same lane. The informant went to the appellant’s house which was found locked. As the whereabouts of the missing child were still not known, the informant lodged a formal missing report to the police.

He also passed on the information to the police as received from Azbar (P.W.2) regarding the distribution of chocolates amongst small children by the appellant. The police, therefore, came to the appellant’s house which had two doors. One was found locked from outside while the other was locked from inside. Police broke open the door and entered the house along with the informant, his brother and a few other persons. They found the appellant in the house; deceased-victim was lying under the bed in a naked and unconscious condition. Blood was oozing out from her private parts and had multiple injuries on her body. She was covered in a blanket and taken to the hospital where the doctor declared her brought dead. Inquest panchnama was prepared and the body was sent for post mortem.

A panel of doctors, including Dr. B.L. Survase and Dr. Bedarkar (P.W. 7 and P.W.8 respectively) performed the post mortem and found multiple injuries on the person of the victim. They opined that the death was caused due to throttling. The informant – father of the victim lodged the report at 12.30 a.m. on 07.03.2012 on the basis of which Crime No. 56 of 2012 was registered. The appellant was arrested at about 1.00 a.m. on the same day by the Investigating Officer Rajinder Singh Gaur (P.W.12). The clothes worn by the appellant were seized and the seizure panchnama was drawn in the presence of panchnama witnesses – Sheikh Arshad and Sheikh Nayeem.

4. Iliyas (P.W.9), the father of the deceased-victim also produced the clothes worn by her which too were duly seized in the presence of Syed Muzeeb (P.W.1) and Mohd. Akbar Khan. The scene of crime panchnama was drawn and articles found on the spot were also seized. The appellant was referred for medical examination to Ghati Hospital, Aurangabad. The appellant’s blood samples were taken on 11.3.2012 and sent to Mumbai for DNA examination along with the seized muddemal. The blood samples of the appellant were taken again on 13.03.2012 and were sent for the DNA test.

5. On filing of the chargesheet, charges under Sections 363, 376 and 302, IPC were framed to which the appellant did not plead guilty and claimed trial. Thereafter, prosecution moved an application for framing an additional charge under Section 377, IPC. The said application was allowed and charge under Section 377 was framed to which also the appellant did not plead guilty. His defence was of total denial and that he was falsely implicated.

6. The prosecution examined 12 witnesses in all. The following points thus arose for consideration of the Trial Court:-

“1. Whether the prosecution proves that accused on 6.3.2012 at about 16.00 Hrs. in the vicinity of Indira Nagar, old Jalna, Taluka and District : Jalna, kidnapped xxx.. d/o Iliyas Pathan a minor girl under 16 years of age from her lawful guardianship & without his consent, and thereby committed an offence punishable u/s 363 of I.P.C.?

2. Whether the prosecution further proves that accused on above date, time and place of offence, committed rape on xxx.. and thereby committed an offence punishable u/s 376 of IPC?

3. Whether the prosecution further proves that accused on above date, time and place of offence, committed carnal intercourse against the order of nature with minor girl xxx.. and thereby committed an offence punishable u/s 377 of IPC?

4. Whether the prosecution further proves that accused on above date, time and place of offence, committed murder intentionally or knowingly causing death of xxx.., and thereby committed an offence punishable u/s 302 of IPC?”

7. The Trial Court discussed the evidence at length in the context of each point and answered them in the affirmative. It held the appellant guilty of the offences referred to above. The Trial Court thereafter compared the ‘aggravating circumstances’ vis-a-vis the ‘mitigating circumstances’ and having found that the crime was committed in a most brutal, diabolical and revolting manner which shook the collective conscience of the society, it found that the R.R. Test (rarest of the rare cases) is fully attracted, hence capital punishment was imposed on the appellant under Section 302, IPC.

8. The High Court considered the death reference as well as the appeal preferred by the appellant against the trial Court judgment and after scrutinising the prosecution evidence, reached the following factual issues:-

“A. Accused was found with victim girl in a house one door of which was locked from outside and another door closed from inside,

B. Multiple injuries found on the person of victim,

C. Medical evidence showing that the girl was forcibly raped and done to death,

D. Recovery of blood stained jeans pant and full bush shirt (torn) from the accused,

E. Motive,

F. Failure of accused to offer plausible explanation to the incriminating circumstances against him.”

9. The High Court held that the circumstances conclusively prove that all the pieces of the puzzle fit so perfectly that they leave no reasonable ground for a conclusion consistent with the hypothesis of the innocence of the appellant, rather the same leads to the irrefutable conclusion that it is the appellant who took away the victim child to his house, sexually assaulted her, committed unnatural intercourse and throttled her to death. Consequently, the conviction of the appellant under Sections 302, 376, 377 and 363 of the IPC. was upheld.

10. The High Court thereafter engaged itself on the question of quantum of sentence and as to whether the R.R. Test was attracted to the facts and circumstances of this case. The High Court drew up the balance sheet of the ‘aggravating’ and ‘mitigating’ circumstances and after their comparative analysis, it concurred with the extreme penalty awarded by the trial Court and confirmed the death sentence.

11. We have heard Ms. Nitya Ramkrishnan, Learned Counsel for the appellant and Mr. Nishant R. Katneshwarkar, Learned Counsel for the State of Maharashtra on merits as well as on the contentious issue re: quantum of sentence and have minutely perused the relevant record.

12. Learned Counsel for the appellant argued that there are chinks in the culpability calculus that have a direct bearing on the quantum of sentence as well. She urged that according to Azbar (P.W.2), the appellant was distributing chocolates to children near Maroti Temple around 3.30 to 4.00 p.m. and that the mother of the victim called her husband Iliyas (P.W.9) around 5.00 p.m. to inform that the deceased-victim had been missing since 4.00 p.m. There is no evidence that she was one amongst the children to whom the appellant was distributing chocolates; where had the victim been until 4.00 p.m. and where and when was she last seen and in whose company? The argument is that the victim was not lastly seen in the company of the appellant. It was then urged that the appellant’s house is four houses away from that of the victim; there are other houses next and opposite to that of the appellant, therefore, it is unbelievable that nobody saw the victim child being taken away by the appellant. She pointed out that five policemen entered the house of the appellant and the informant (P.W.9) also statedly accompanied them but the police officials in their depositions have not made any such reference.

13. According to Learned Counsel for the appellant, Azbar (P.W.2) also went to the house of the appellant only after learning that the victim had been traced in the house of the appellant, yet he claims to have seen the appellant under the cot while the victim was on the cot inside the house. It was unbelievable that even after the police had entered the 10×10 room and had hunted him out, the appellant would still remain under the cot until P.W.2 reached the spot. Similarly, Aslam (P.W.5) who is the maternal uncle of the victim, also went to the appellant’s house only after the victim had been found there. Yet, he too found the appellant under the cot.

According to the Learned Counsel, all these witnesses, namely, P.W.2, P.W.3, P.W.4, P.W.5 and P.W.9 have been set out after learning that the child had been found purportedly to describe a scene immediately upon entering the house, which naturally cannot be the case. It was strongly urged that most of these persons did not witness the crime or scene of the crime as they have deposed that the child and the appellant were found in a state of undress, only Dilip Pralhadrao Tejan (P.W.3), who is a police official, says that the appellant was found outraging the modesty of the child. It thus suggests that the testimony of all these witnesses is not accurate and at best it leads to an inference that the child was found in the same house as was the appellant. It was pointed out that the testimony of P.W.3, P.W.4 and P.W.9 varies at the point as to what they saw on entering the house. However, P.W.3’s statement claiming that the appellant was found outraging the modesty of the child under the bed, is different from the version of others who found a cloth around the bed and could see the appellant and the victim only when the cloth was removed. P.W.9 (father of the victim child) does not state the same facts as have been described by P.W.3 or P.W.4 and thus there is inconsistent version on what was seen inside the appellant’s house upon entering.

14. It was then urged that the houses in the area were in a close cluster and it would have been difficult for the appellant to take the child away without being noticed by anyone. Further, prosecution has failed to establish two crucial facts, namely, the place where the victim child was last seen and the estimated time of her death. In the absence of surety of these two facts as to when was the victim child last seen alive and her approximate time of death, the recovery of her dead body between 9.30-10.00 p.m. in the house of the appellant per se is insufficient to establish the charge beyond reasonable doubt.

15. It was contended that even as per P.W.9 (the informant) the appellant along with his family had been residing in that very house since the past 7-10 years, but the prosecution has failed to explain as to where had the other members of the family been during those six hours, between 4.00 p.m. to 10.00 p.m. on that fateful day. This assumes significance in view of the DNA report which merely indicates that they are from the same paternal progeny.

16. Learned Counsel lastly urged that since the basis for the match in DNA report is the comparison with the blood sample of the appellant, it was imperative upon the prosecution to establish that the sample indeed was that of the appellant only. The person, who drew the blood sample has not been examined as a witness nor the contemporary record of the procedure for taking blood sample has been explained. There is only a bald statement of the Investigating Officer that the appellant was referred to Ghati hospital, Aurangabad. There is no memo or material to show as to who collected the blood sample of the appellant, when was the sample collected and where and how was it preserved. As against it, the medical examination reports and sample collection reports of the appellant (Exbts. 21, 21A and 22) indicate that no blood sample was taken which shows the incorrectness of the Investigating Officer’s testimony.

The chemical lab at Mumbai also does not mention any receipt of a blood sample of the appellant. She argued that the prosecution has strongly relied on the D.N.A. evidence despite the fact that the method of analysis used, i.e., Y-Chromosome Short Tandem Repeat Polymorphism (Y-STR) has certain inherent limitations due to which accurate identification of the accused cannot be established beyond a reasonable doubt. Unlike other processes like autosomal STR analysis, Y-STR analysis does not allow for individual identification in the same male lineage. It was thus contended that the prosecution has failed to bring the guilty at home, hence the appellant deserves the benefit of doubt.

17. Learned State Counsel, however, refuted all the appellant’s contentions and took us through the ocular and medical evidence, especially the eye-witness’s account to urge that there is no error or lapse worth whispering committed by the prosecution in establishing the appellant’s guilt. He extensively referred to the relevant parts of the impugned judgments to explain as to how the ‘aggravating’ and ‘mitigating’ circumstances have been drawn up and weighed before awarding or confirming the death sentence.

18. Before entering the hassled arena of sentencing, it is apropos to recapitulate the facts and evidence on record to find out whether the prosecution has been able to prove the charges against the appellant beyond any reasonable doubt.

19. The victim was not even 2-year old when she died an unnatural death. The post mortem was conducted on 07.03.2012 by a panel of doctors, which included Dr. B.L. Survesh (P.W.7) and Dr. Bedarkar (P.W.8). According to Dr. B.L. Survesh, the external injuries corresponded to the internal injuries and were sufficient in the ordinary course of nature to cause death. All the injuries were ante-mortem and the cause of death was throttling. The Medical Board found following injuries on external examination on the body of the deceasedvictim:-

1. Linear abrasion on right side of chest 2 cm, oblique, reddish in colour.

2. Abrasion over left zygomatic area, 5 x 2 cm.

3. Linear abrasion, left side of neck, above clavicle reddish, about 1 cm in length and 2 in number.

4. Linear abrasion, left scapular region, two in number, one below other 21/2 cm. reddish in colour.

5. Abrasion, 5 in number, at the centre over lower back, 1/2 x 1 cm each in size.

6. Contrusion over vault 1/2 x 1/2 cm.

7. Abrasion over right sub mandibular region, 1 cm reddish.

8. Abrasion, right supra clavicular region, 2 in number, 1/2 cm each, over above other.

20. The panel of doctors further found following injuries on the internal examination of the body:-

1. Neck dissection under the skin, contusion to muscle and subcutaneous tissues corresponding to abrasions on skin.

2. Right and left lungs congested.

3. Heart was found congested. 13

4. Right side of the heart was full of blood and left side was empty.

5. Tongue was inside the mouth between the teeth.

6. Stomach was congested and was containing semidigested food.

21. On the vaginal examination of the victim, evidence of tear at posterior vaginal wall and triangular shape tear 2x1x1/2 cm. was noticed and hymen was found ruptured. Dr.Survase (P.W.7) has deposed that “on perusal of report as to examination of anal swab in DNA report, and, considering observation in clause 15 of the post mortem report, I opine that there was unnatural sex.” Similarly, Dr.Bedarkar (P.W.8) after perusing the same DNA report and post mortem report has stated that, ” I opine that vaginal and anal intercourse was performed.”

22. It, therefore, stands established beyond any pale of doubt that the victim child was subjected to forcible vaginal and anal/unnatural intercourse and she died of asphyxia due to throttling.

Connection between the appellant and the crime

23. Azbar (P.W.2) had known the appellant since their childhood as both of them had been residing in the same lane. On 06.03.2012, while going towards his house at about 3.30 to 4.00 p.m. he met the appellant who was drunk and was distributing chocolates to children near Maroti Temple. His friend Gayas called him [Azbar (P.W.2)] at 5.00 p.m. to inform that the victim, daughter of Iliyas, was missing. They started looking for the child near Bhagya Nagar Railway Station, Mhada Colony, Aurangabad Chouphuly, Sanjay Nagar, etc. Then he got to know that the victim had been traced in the house of the appellant. P.W.2 then went to the appellant’s house at Indira Nagar.

There was a crowd of people there and police was already present when he entered the house and saw that the child was lying on a cot and a blanket was put on her body. The appellant was under the said bed. The witness also slapped the appellant 2-3 times before the police took the later. P.W.2 was called on the next day on 07.03.2012 for spot panchnama. One white paper, a pencil, blue broken bangle, one pass book carrying names of Reena and Lakshmi Bai Ghumare and one piece of a saree was found and seized by the police and kept in an envelope. The panchnama bears his signatures. In his cross-examination, P.W.2 has categorically stated that though the parents of the appellant are alive but they were not present at his house at the time of occurrence. He has explained in detail as to how the panchnama was prepared.

24. Dilip Pralhadrao Tejan (P.W.3) the police official, had been attached to Kadim Jalna police station on 06.03.2012. The missing report lodged by Ilias (P.W.9) about his 2-year old daughter was handed over to P.W.3 for inquiry. P.W. 3 along with policemen Katake, Jawale, Rathod and Chavan was in Indira Nagar area of Jalna where he got to know that the appellant was seen distributing chocolates and icecream/fruits to minor children. P.W.3 along with other police officials, therefore, went to the house of the appellant between 9.30 to 9.45 p.m. and found that there were two doors, one was locked from outside and the other from inside. P.W.3 peeped through the gap in the door and noticed some cloth around the bed. He called the appellant by name but nobody responded.

The witness then broke open the door and entered the house and found the appellant outraging the modesty of the victim child under the bed. The police-party covered the baby with a quilt and placed her on the bed. Meanwhile about 20 persons followed them including Aslam, the maternal uncle of the missing child. The victim child was sent along with Aslam for medical treatment. Since several more agitated persons gathered at the scene, the police rescued the appellant and took him to the police station. The peole were demanding that the appellant be handed over to them. On a specific court question as to in which manner and in what circumstances P.W.3 saw the accused and the deceased, he had answered in no uncertain terms that the “deceased kid was found naked and blood was oozing from her mouth and private parts. There was no shirt on the person of the accused, his jean and trouser was found on his knee. Accused was also found naked.”

25. Constable Sanjay Katake (P.W.4) was also a member of the police team led by API Dilip Pralhadrai Tejan which was looking for the missing child in Indira Nagar area of Jalna. P.W.4 has also unequivocally deposed that they were informed by the people in the vicinity that the appellant ‘used’ to distribute icecream and chocolates among the children and on that day also he was seen doing so. The police team, therefore, went to the house of the appellant which had two doors. One of the door was locked from outside whereas the other was from inside. The police party called the appellant by name, but he did not respond. Then, they peeped through the slit of the door and noticed a bed and some piece of cloth around it and got suspicious that there was somebody under the bed. They broke open the door and entered the house. A.S.I. Tejankar removed the cloth around the bed and the police team found the appellant and the victim child under the bed in naked condition.

Tejankar placed the child over the bed. “Blood was found oozing from mouth and private part of that kid”. The victim was wrapped in a blanket and rushed to the hospital through her maternal uncle. 4-5 persons who had entered the house along with the police team insisted on having the custody of the appellant. Meanwhile, 150-200 more persons gathered at the spot. The appellant was rescued from the mob and taken to the police station. The mob became aggressive and started pelting stones on the police vehicles and the policemen. Some loss was also caused to the house of the appellant. P.W.4 is the same police official who lodged the report at Kadim Jalna Police Station (Exbt. 45). In his cross-examination, it was suggested to P.W.4 that there is a population of about 5000 in the vicinity and that he never accompanied Mr. Tejankar, ASI and he knew nothing about the incident.

26. Aslam (P.W.5) has deposed that deceased was daughter of his sister. The husband of his sister, Iliyas informed him on 06.03.2012 on telephone that deceased was missing and he asked him to bring a photograph of the victim to the police station. Aslam brought one photograph of the child to Kadim Jalna police station and lodged the missing report. The witness thereafter went to look for the missing child in Ambad Chouphuly Railway Station and Moti Bagh area. While he was still looking for her, one Hussain Pathan informed him on phone that the child had been found so he immediately went to the Indira Nagar area, Jalna to the house of the appellant. He noticed that the appellant was under the bed while the victim was lying on the bed. There were no clothes on the person of the child; she was wrapped in a blanket. He then took the victim to Deepak Hospital, Jalna, then to the Civil Hospital, Jalna where the doctors declared her brought dead. The witness has denied in the cross-examination that there was any quarrel between Ilias (P.W.9), father of the victim and the appellant.

27. Nand Kumar Vinayakrao Tope (P.W.6) is a police head constable, who was on duty at Kadim Jalna police station on 12.03.2012. He has deposed that on 11.03.2012 he was asked to carry muddemal along with a covering letter which he deposited on 12.03.2012 in C.A. Office, Mumbai. The covering letter is Exbt. P-51. He also carried the blood sample of the appellant to C.A. Office, Mumbai and deposited the same on 14.03.2012. He has categorically stated in his crossexamination that the blood sample of the appellant bore signatures of the doctors and panches.

28. We may now briefly refer to the statement of Ilias (P.W.9) – father of the victim girl. He has deposed that the child was about two years old; he resides in Indira Nagar, Jalna along with his family, including his wife Aysha; the appellant was also residing in the same lane. On the date of occurrence, i.e, 06.03.2012 he was selling fruits in Nutan Vasahat area of Jalna when his wife informed him on phone at about 5.00 p.m. that their daughter had been missing since 4.00 p.m. He immediately went home where his father and brother had already reached. They started looking for the child in the adjoining localities.

The witness informed the police about his missing daughter who also started searching for her. Azhar Usman meanwhile informed him that the appellant while under the ‘influence of liquor’ was distributing chocolates to children. P.W.9 then went to the house of appellant which was found locked from outside. The missing report of the child was lodged around 8.00-8.30 p.m. The witness also passed on the information to the police that he had gathered from Azhar. The Police party too, therefore, reached at the house of appellant and they broke open one of the doors. The witness and his brother entered the house along with the police and found that his daughter was lying under the bed and the appellant was also lying under the bed. His daughter was naked and there were injuries on her person aw well as private parts.

Police laid the child on the bed and after covering her with a cloth she was taken to Deepak Hospital, Jalna where doctors informed that the victim was already dead. The appellant killed her by pressing her throat. The witness also identified his signatures on the report lodged by him Exbt. P- 67. The witness in his cross-examination denied any dispute with the father of the appellant in connection with the purchase of the premises.

29. The other witness whose statement has a direct bearing on connecting the appellant with the crime is API Rajendrasingh Prabhusingh Gaur (P.W.12), who was attached to Kadim JalnaPolice Station on 06.03.2012. He arrested the appellant at 1.00 a.m. on 07.03.2012. The appellant was brought to the police station by ASI Tejankar. He has further stated that “blue jeans and green shirt on the person of accused was seized. There were blood-stains and semen stains on it. The seizure panchnama Exbt. P-19 bears my signature and also of the accused.” He has further deposed that the father of the victim produced knicker and frock worn by the deceased victim and also the blanket in which she was wrapped. Blue bangle, painjan were also seized under panchnama Exbt. P-32, which bears his signatures along with those of the panches. Muddemal articles shown at S.No. 125 in the chargesheet were the same. Muddemal article Nos. 6 and 7 in the chargesheet were the clothes of the appellant.

The police officer (P.W.12) went to the spot and also collected a paper having blood-stains, piece of blue bangle, a passbook of post office and yellow piece of a saree having blood-stains. All these articles were seized under his signatures and of the panches. P.W.12 has further stated that the appellant was referred to Ghati Hospital, Aurangabad for his medical examination and report Nos. 21 and 21A were obtained. Appellant’s blood sample was taken on 11.03.2012 from S.D.H. Ambad and all the blood samples were sent to Mumbai for DNA examination along with a forwarding letter Exbt. P-51. Since the said blood sample was not sent as per the prescribed format, another blood sample of the appellant was taken by the Medical Officer at S.D.H. Ambad on 13.03.2012 and it was sent along with the covering letter Exbt. P-52. P.W.12 also sent viscera of the victim on 12.03.2012 along with letters which bear his signatures.

The report of the viscera Exbt. P-81 was also obtained. P.W.12 had further identified the reports regarding clothes on the person of the victim and the appellant Exbt. P-82. P.W.12 has been subjected to a fairly long cross-examination but no discrepancy, having bearing on the merits of the case, has been extracted.

30. After a tenacious analysis of the testimonies of the witnesses with respect to the facts seen by each one of them, there remains no room to doubt that on 06.03.2012 the appellant after taking liquor was seen distributing chocolates to children sometime around 3.30/4.00 p.m. The victim child went missing around 4.00 p.m. as was informed to Ilias (P.W.9) by his wife at about 5.00 p.m.

The information of her missing was immediately circulated amongst the family members/relatives and all of them desparately started searching for her. Meanwhile, the missing report was lodged with police as well. During such search operations by the police and also the family members of the missing child, it surfaced that the appellant was distributing chocolates to allure children near Maroti Temple on that day and around that time the child went missing. The police-team, Iliyas – the father of the victim and his brother, genuinely apprehensive and smelling something foul, reached the house of the appellant and nabbed him red-handed under the bed with the victim in naked condition. It further stands established conclusively that deceased had been brutally assaulted and subjected to vaginal and unnatural intercourse.

The victim had been inflicted multiple injuries on face, head, neck, external genetalia as well as inside the uterus and urethra. We may in this regard refer to, in particular, the deposition of Dilip Pralhadrai Tejan (P.W.3), who after making forceful entry inside the appellant’s house, found him outraging the modesty of the child. The appellant had the special knowlege as to in what circumstances the victim child suffered those multiple injuries. The burden to prove that those injuries were not caused by him was on the appellant alone in view of Section 106 of the Evidence Act, which he has miserably failed to discharge though the evidence on record proves beyond doubt that the victim child was in unlawful custody of the appellant from about 4.00 p.m. till she breathed her last breath due to the beastly attack on her.

Scientific Evidence connecting the appellant with the Crime:

31. Dr. Bhanu Das Survase (P.W.7) was a member of the panel of doctors, who conducted post mortem on the dead body of the victim. He has testified that samples of swabs, blood sample and nails sample of the victim were taken by them. So is the statement of Dr. Bedarkar (P.W.8) who has stated that “various types of swabs, nasal swabs, superficial vaginal swab, deep vaginal smear on slide, superficial vaginal smear on slide, anus swab, skin scraping of blood on thigh and abdomen, nails and blood samples of xxx.. were taken.” He has further deposed that all samples were seized and handed over to the police. Police Inspector Rajendrasingh Prabhusingh Guar (P.W.12) has stated on oath that after arresting the appellant, the blue jeans and green shirt on his person were seized and that there were blood-stains and semen stains on it. The knicker and frock of the victim along with blanket in which she was wrapped as well as various articles collected from the scene of crime including a piece of saree having blood-stains, were seized. The blood sample of the appellant was also taken and all the seized articles/samples were sent to Mumbai for examination.

32. Shrikant Hanamant Lade (P.W.11) Assistant Director in Forensic Science Laboratory, Mumbai, who got training in CDFD Institute, Hyderabad also, has authored about 30 papers on DNA, besides a well known book ‘Forensic Biology’. He has testified that they conducted the DNA test as per the guidelines issued by the Director of Forensic Science, Ministry of Home Affairs, New Delhi. Their office received the sealed muddemal from Kadim, Jalna Police Station sent vide letter dated 11.03.2012 as also the blood sample of the appellant sent vide letter dated 13.03.2012 (Exbt. P-52).

The blood sample of the victim was received on 12.03.2012 along with samples of oral swabs and other articles. P.W.11 analysed the oral swabs and other articles of the victim, nasal swabs, superficial vaginal swab, deep vaginal smear on slide, superficial vaginal smear on slide, anus swab, skin scraping of blood on thigh and abdomen, nails as also other blood samples. P.W.11 has further deposed that, “I have extracted DNA from blood sample of Accused Ravi Ghumare, Superficial vaginal swab on Exhibit No.3, deep vaginal swab Exhibit No.4, Deep vaginal swab on slide Exhibit No.5 superficial vaginal swab on slide Exhibit No.6, anal swab Exhibit No.7, skin scrapping of blood on thigh and abdomen Exhibit No.8, blood & semen detected on Exhibit No.3 Jeans pant.

This DNA was amplified by using Y-chromosome specific marker, Y-chromosome short tandem repeat polymorphism [YSTR] and by using Polymerase Change Reaction [for short PCR] amplification technique. DNA profile was generated. I analyzed all these DNA profiles. My interpretation is male haplotypes of semen detected on Exhibit No.3 Superficial vaginal swab Exhibit No.4 deep vaginal sway Exhibit No.3 Superfinal vaginal swab Exhibit No.4 deep vaginal sway Exhibit No.5 deep vaginal smear on slide, Exhibit No.6 superficial vaginal smear on slide, Exhibit No.7 anal swab, Exhibit No.8 skin scrapings of blood on thigh and abdomen and blood and semen detected on Exhibit No.3, jeans pant of F.S X. ML Case No.DNA 951/12 matched with the male haplotypes of blood sample of Exhibit No.1, Ravi Ashok Ghumare of F.S.L. ML Case No.DNA-209/12.

My opinion is DNA profile of semen detected on Exhibit No.3 superficial vaginal swab, Exhibit 4 deep vaginal swab, Exhibit No.5 deep vaginal smear on slid Exhibit No.6 superficial vaginal smear on slide, Exhibit No.7 anal swab, Exhibit No.8, skin scrapings of blood on thigh and abdomen, blood and semen detected on Exhibit No.3 jeans pant of F.S.L ML Case No.DNA- 951/112 and blood sample of Exhibit No.1 Ravi Ashok Ghumare of F.S.LML Case No.DNA-209/12 is from the same paternal progeny. Accordingly, I prepared examination report filed with list Exhibit No.71 bear my signature, Contents are correct. It is at Exhibit No.75. Analysis of all above DNA profiles is shorn in table in the same report. Blue jeans pant and shirt of Accused Exhibit No.3 & 4 were referred by biological section of our office. I extracted DNA from blood and semen detected Exhibit No.3, full jeans pant, blood detected on Exhibit No.4 full bush shirt, and sample of Ravi Ghumare.

Then this DNA was amplified by using 15 STR Loci using PCR amplification technique. My interpretation is DNA profile of blood and semen detected on Exhibit No.3 full jeans pant, blood detected on Exhibit No.4 full bush shirt [torn] of F.S.l. ML. Case No.DNA-951/12 and blood sample of Ravi Ashok Ghumare is identical and from one and same source of male origin. DNA profiles match with the maternal and paternal alleles in the source of blood.”

33. Shrikant Lade (P.W.11) accordingly prepared the DNA report which is duly attested by the Assistant Chemical Analyser also. On seeing the contents of his report, P.W.11 has pertinently deposed that “I can opine on going through the reports Exbts. 75-76 that there were sexual intercourse and unnatural intercourse on the victim by the accused Ravi.”

[emphasis applied].

34. The unshakable scientific evidence which nails the appellant from all sides, is sought to be impeached on the premise that the method of DNA analysis “Y-STR” followed in the instant case is unreliable. It is suggested that the said method does not accurately identify the accused as the perpetrator; and unlike other methods say autosomal-STR analysis, it cannot distinguish between male members in the same lineage.

35. We are, however, not swayed by the submission. The globally acknowledged medical literature coupled with the statement of P.W.11 – Assistant Director, Forensic Science Laboratory leaves nothing mootable that in cases of sexual assualt, DNA of the victim and the perpetrator are often mixed. Traditional DNA analysis techniques like “autosomal- STR” are not possible in such cases. Y-STR method provides a unique way of isolating only the male DNA by comparing the YChromosome which is found only in males. It is no longer a matter of scientific debate that Y-STR screening is manifestly useful for corroboration in sexual assault cases and it can be well used as excalpatory evidence and is extensively relied upon in various jurisdictions throughout the world.1 & 2. Science and Researches have emphatically established that chances of degradation of the ‘Loci’ in samples are lesser by this method and it can be more effective than other traditional methods of DNA analysis.

Although Y-STR does not distinguish between the males of same lineage, it can, nevertheless, may be used as a strong circumstantial evidence to support the prosecution case. Y-STR techniques of DNA analysis are both regularly used in various jurisdictions for identification of offender in cases of sexual assault and also as a method to identify suspects in unsolved cases. Considering the perfect match of the samples and there being nothing to discredit the DNA analysis process, the probative value of the forensic report as well as the statement of P.W.11 are very high. Still further, it is not the case of the appellant that crime was committed by some other close relative of him. Importantly, no other person was found present in the house except the appellant.

36. There is thus overwhelming eye-witness account, circumstantial evidence, medical evidence and DNA analysis on record which conclusively proves that it is the appellant and he alone, who is guilty of committing the horrendous crime in this case. We, therefore, unhesitatingly uphold the conviction of the appellant.

Motive

37. Though the High Court has observed that ‘satisfaction of lust’ and ‘removal of trace’ was the appellant’s motive but motive is not an explicit requirement under the Indian Penal Code, though ‘motive’ may be helpful in proving the case of the prosecution in a case of circumstantial evidence. This Court has held in a catena of decisions that lack of motive would not be fatal to the case of prosecution as sometimes human beings act irrationally and at the spur of the moment. The case in hand is not entirely based on circumstantial evidence as there are reliable eye-witness depositions who have seen the appellant committing the crime, may be in part. Such an unshakable evidence with dense support of DNA test does not require the definite determination of the motive of the appellant behind the gruesome crime.

Sentencing:

38. On the question of sentence, Learned Counsel for the appellant vehemently urged that the Courts below have been largely influenced by the ‘nature’ and ‘brutality’ of the crime while awarding the extreme sentence of death penalty. She referred to a list of as many as 35 decisions rendered by this Court in the cases of rape and murder of a child-victim in which the death sentences were commuted to life imprisonment. It was urged that brutality of the crime alone is not sufficient to impose the sentence of death; it is imperative on the State to establish that the convict is beyond reform and to this end it is relevant to see whether this is the first conviction or there has been previous crimes. The socioeconomic conditions of the convict and the state of mind must be assessed by the Court before awarding such a penalty; the death penalty must not be awarded in a case of circumstantial evidence as any chink in the culpability calculus would interdict the extreme penalty.

Learned Counsel heavily relied upon

(i) Kalu Khan v. State of Rajasthan (2015) 16 SCC 492 in which a three-Judge Bench of this Court commuted the death sentence in murder, abduction and rape, holding that the life imprisonment would serve the object of reformation, retribution and prevention and that giving and taking life is divine, which cannot be done by Courts unless alternatives are foreclosed. Another three-Judge Bench decision in Sunil v. State of Madhya Pradesh (2017) 4 SCC 393 where a 25- year old was held guilty of murder and rape of a 4-year old child, but not sent to gallows on the parameters that he could be reformed and rehabilitated, has been pressed into aid. She, in specific, cited several three-Judge Bench judgments where the young age of the accused was taken as a mitigating circumstance and in the absence of previous criminal history, the conduct of the accused while in custody and keeping in view the socio-economic strata to which he belonged, the possibility of reform was not ruled out and death penalty was commuted.

39. Learned Counsel for the appellant placed great reliance on a three-Judge Bench decision of this Court dated December 12, 2018 rendered in Rajindra Pralhadrao Wasnik v. State of Maharashtra in Review Petition(Crl.) Nos. 306-307/2013 in which the appellant was held guilty of rape and murder of a 3- year old child and the death sentence was substituted by the life imprisonment with a rider, “that the convict shall not be released for the rest of his life”. This Court viewed in that case that

(a) the case was solely based on circumstantial evidence,

(b) probability of reformation and rehabilitation could not be ruled out,

(c) DNA sample of the accused was taken, but not submitted in the Trial Court, and

(d) the factum of pendency of two similar cases against the accused reflecting on his bad character was not admissible. Yet another three-Judge Bench decision of this Court in Parsuram v. State of Madhya Pradesh (Criminal Appeal Nos. 314-315 of 2013), decided on 19th February, 2019 where also death sentence awarded to a 22-year old who was found guilty of rape and murder of a minor girl, was commuted on the principles quoted above, has been relied upon.

40. The appellant’s Counsel urged that the High Court ought not to have followed

(i) Dhanjoy Chaterjee v. State of West Bengal (1994) 2 SCC 220, which was later on doubted by this Court in Shankar Kishanrao Khade v. State of Maharashtra (2013) 5 SCC 546 and

(ii) Shivaji v. State of Maharashtra (2008) 3 SCC 269 which too was held to be per curian in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498. She very passionately urged that neither the High Court nor the Trial Court have given reasons for imposition of death penalty as both the Courts have been influenced by the nature of the crime. The mitigating circumstances of the appellant were inadequately represented. The brutality of the crime is the pre-dominant ground for imposition of death penalty though this Court has cautioned contrarily in a catena of decisions. Both the Courts have failed in recording a finding that the appellant was beyond reform and unless it was so found, the case cannot belong to the ‘rarest of the rare’ category.

41. Relying upon the facts like

(i) lack of criminal antecedents;

(ii) no record of anti-social conduct prior to the crime;

(iii) appellant being 25-30 years of age;

(iv) brutality of crime cannot be a ground to award death sentence; and

(v) the appellant belongs to poor section of society, his learned Counsel urged that this is not a fit case for imposition of death penalty.

42. Learned State Counsel, contrarily, maintained that the instant case satisfies the principle of ‘rarest of the rare cases’ and the appellant who committed the crime of rape and murder of a barely 2-year old innocent toddler in the most dastardly manner, does not deserve any liniency. According to him, the appellant is a menace to the society and to deter such like crimes against mankind, this Court should show no misplaced sympathy.

43. The question which eventually falls for consideration is whether the instant case satisfies the test of ‘rarest of the rare cases’ and falls in such exceptional category where all other alternatives except death sentence, are foreclosed and whether this Court should explore the award of actual life imprisonment as prescribed by this Court in Swamy Shraddananda @ Murli Manohar Mishra v. State of Karnataka (2008) 13 SCC 767 which has got seal of approval of the Constitution Bench in Union of India v. V. Sriharan @ Murugan & Ors. (2016) 7 SCC 1.

44. The Constitution Bench of this Court in Bachan Singh v. State of Punjab (1980) 2 SCC 684, while upholding the constitutionality of death penalty under Section 302 IPC and the sentencing procedure embodied in Section 354(3) of the Code of Criminal Procedure, struck a balance between the protagonists of the deterrent punishment on one hand and the humanity crying against death penalty on the other and elucidated the strict parameters to be adhered to by the Courts for awarding death sentence. While emphasising that for persons convicted of murder, life imprisonment is the ‘rule’ and death setnence an ‘exception’, this Court viewed that a rule abiding concern for the dignity of the human life postulates resistance in taking the life through laws instrumentality and that the death sentence be not awarded “save in the rarest of the rare cases” when the alternative option is foreclosed.

45. In Machhi Singh v. State of Punjab (1983) 3 SCC 470, this Court formulated the following two questions to be considered as a test to determine the rarest of the rare cases in which the death sentence can be inflicted:

“(a) Is there something uncommon, which renders sentence for imprisonment for life inadequate calls for death sentence?

(b) Rather the circumstances of the crime such that there is no alternative, but to impose the death sentence even after according maximum weightage to the mitigating circumstances which speaks in favour of the offender?”

46. Machhi Singh then proceeded to lay down the circumstances in which death sentence may be imposed for the crime of murder and held as follows:-

“32. The reasons why the community as a whole does not endorse the humanistic approach reflected in “death sentence-in-no-case” doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of “reverence for life” principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it.

The very existence of the rule of law and the fear of being brought to book operates as a deterrent for those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by “killing” a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self- preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so “in rarest of rare cases” when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance:

I. Manner of commission of murder

33. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance,

(i) when the house of the victim is set aflame with the end in view to roast him alive in the house.

(ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.

(iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.

II. Motive for commission of murder

34. When the murder is committed for a motive which evinces total depravity and meanness. For instance when

(a) a hired assassin commits murder for the sake of money or reward

(b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust, or

(c) a murder is committed in the course for betrayal of the motherland.

III. Anti-social or socially abhorrent nature of the crime

35. (a) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance.

(b) In cases of “bride burning” and what are known as “dowry deaths” or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

IV. Magnitude of crime

36. When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

V. Personality of victim of murder

37. When the victim of murder is

(a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder

(b) a helpless woman or a person rendered helpless by old age or infirmity

(c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust

(d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons …..”

47. It thus spells out from Machhi Singh (supra) that extreme penalty of death sentence need not be inflicted except in gravest cases of extreme culpability and where the victim of a murder is … (a) an innocent child who could not have or has not provided even an excuse, much less a provocation for murder…”, such abhorent nature of the crime will certainly fall in the exceptional category of gravest cases of extreme culpability.

48. This Court in Machhi Singh’s case confirmed the death sentence awarded to Kashmir Singh – one of the appellants as he was found guilty of causing death to a poor defenceless child (Balbir Singh) aged 6 years. The appellant Kashmir Singh was categorised as a person of depraved mind with grave propensity to commit murder.

49. Bachan Singh and Machhi Singh, the Constitution Bench and the Three-Judge Bench decisions respectively, continue to serve as the foundation-stone of contemporary sentencing jurisprudence though they have been expounded or distinguished for the purpose of commuting death sentence, mostly in the cases of

(i) conviction based on circumstantial evidence alone;

(ii) failure of the prosecution to discharge its onus re: reformation;

(iii) a case of residual doubts; and

(iv) where the other peculiar ‘mitigating’ circumstances outweighed the ‘aggravating’ circumstances.

50. It is noteworthy that the object and purpose of determining quantum of sentence has to be ‘society centric’ without being influenced by a ‘judge’s’ own views, for society is the biggest stake holder in the administration of criminal justice system. A civic society has a ‘fundamental’ and ‘human’ right to live free from any kind of psycho fear, threat, danger or insecurity at the hands of anti-social elements. The society legitimately expects the Courts to apply doctrine of proportionality and impose suitable and deterent punishment that commensurate(s) with the gravity of offence.

51. Equally important is the stand-point of a ‘victim’ which includes his/her guardian or legal heirs as defined in Section 2(wa), Cr.P.C. For long, the criminal law had been viewed on a dimensional plane wherein the Courts were required to adjudicate between the accused and the State. The ‘victim’- the de facto sufferer of a crime had no say in the adjudicatory process and was made to sit outside the court as a mute spectator. The ethos of criminal justice dispensation to prevent and punish ‘crime’ would surreptitiously turn its back on the ‘victim’ of such crime whose cries went unheard for centuries in the long corridors of the conventional apparatus. A few limited rights, including to participate in the trial have now been bestowed on a ‘victim’ in India by the Act No. 5 of 2009 whereby some pragmatic changes in Cr.P.C. have been made.

52. The Sentencing Policy, therefore, needs to strike a balance between the two sides and count upon the twin test of

(i) deterrent effect, or

(ii) complete reformation for integration of the offender in civil society. Where the Court is satisfied that there is no possibility of reforming the offender, the punishments before all things, must be befitting the nature of crime and deterrent with an explicit aim to make an example out of the evil-doer and a warning to those who are still innocent. There is no gainsaying that the punishment is a reflection of societal morals. The subsistence of capital punishment proves that there are certain acts which the society so essentially abhores that they justify the taking of most crucial of the rights – the right to life.

53. If the case-law cited on behalf of the appellant where this Court commuted death sentence into life imprisonment for the ‘rest of the life’ or so is appreciated within these contours, it won’t need an elaborate discussion that the peculiarity of the facts and circumstances of each case prompted this Court to invoke leniency and substitute the death sentence with a lesser punishment. The three-Judge Bench decision in Rajendra Pralhadrai Washnik (supra) is clearly distinguisahable on this very premise as that was a case, not only based on circumstantial evidence but where even the DNA sample of the accused though taken was not submitted in the trial Court.

It was thus a case of “residuary doubts” as explained by this Court in Ashok Debbarma v. State of Tripura (2014) 4 SCC 747. The same analogy takes away the persuvasive force in Parsuram (supra), for that too was a case where the guilt was established only on the basis of circumstantial evidence.

54. Contrary to it, a Three-Judge Bench of this Court in Vsanta Sampat Dupare v. State of Maharashtra (2017) 6 SCC 631, which is very close on facts to this case, found the convict guilty of raping and battering to death a little girl of 4 years after luring her by giving chocolates. The prosecution established its case by relying upon the ‘last seen theory’ as the appellant was seen taking away the victim on a bicycle on the fateful day. The eye-witness account, the disclosure statement made by the accused coupled with the other circumstantial evidence nailed him. The death setence was confirmed by this Court on 26th November, 2014.

He, thereafter filed a Review Petition after about three years, claiming that post-confirmation of his death sentence, he had improved his academic qualification, completed the Gandhi Vichar Pariksha and had also participated in the Drawing Competition organised sometime in January, 2016. It was also asserted that his jail record was without any blemish and there was a possibility of the accused being reformed and rehabilitated. This Court dismissed the Review Petition by way of a self-speaking judgment, holding that the aggravating circumstances, namely, the extreme depravity and the barbaric manner in which the crime was committed and the fact that the victim was a helpless child of four years clearly outweigh the mitigating circumstances now brought on record.

55. In Khushwinder Singh v. State of Punjab, (2019) 4 SCC 415, this Court affirmed the death sentence of an accused who had killed six innocent persons, out of which two were minors, by kidnapping three persons, drugging them with sleeping tablets, and then pushing them into a canal. Thereafter, three other members of the same family were also done away with. This Court upheld the award of capital punishment observing as follows:-

“14. Now, so far as the capital punishment imposed by the learned Sessions Court and confirmed by the High Court is concerned, at the outset, it is required to be noted that, as such, the learned counsel appearing on behalf of the accused is not in a position to point out any mitigating circumstance which warrants commutation of death sentence to the life imprisonment. In the present case, the accused has killed six innocent persons, out of which two were minors – below 10 years of age. Almost, all the family members of PW 5 were done to death in a diabolical and dastardly manner. Fortunately, or unfortunately, only one person of the family of PW 5 could survive. In the present case, the accused has killed six innocent persons in a pre-planned manner.

The convict meticulously planned the time. He first kidnapped three persons by way of deception and took them to the canal and after drugging them with sleeping tablets, pushed them in the canal at midnight to ensure that the crime is not detected. That, thereafter he killed another three persons in the second stage/instalment. Therefore, considering the law laid down by this Court in Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1 : (2017) 2 SCC (Cri) 673] , the case would fall in the category of the “rarest of rare case” warranting death sentence/capital punishment. The aggravating circumstances are in favour of the prosecution and against the accused. Therefore, striking a balance between the aggravating and mitigating circumstances, we are of the opinion that the aggravating circumstance would tilt the balance in favour of capital punishment. In the facts and circumstances of the case, we are of the opinion that there is no alternative punishment suitable, except the death sentence.

The crime is committed with extremist brutality and the collective conscience of the society would be shocked. Therefore, we are of the opinion that the capital punishment/death sentence imposed by the learned Sessions Court and confirmed by the High Court does not warrant any interference by this Court. Therefore, we confirm the death sentence of the accused imposed by the learned Sessions Court and confirmed by the High Court while convicting the appellant for the offence punishable under Section 302 IPC.”

56. In a recent Three-Judge Bench decision of this Court in Manoharan v. State by Inspector of Police, Variety Hall Police Station, Coimbatore, (2019) SCC Online 951, the appellant’s capital punishment was confirmed by the High Court in a case in which he along with his co-accused was held guilty of kidnapping a 10-year old girl and her 7-year old brother. After committing gang rape of the minor girl, both the victims were done away with by throwing them into a canal which caused their death by drowning. This Court (by majority) upheld the death sentence, concluding as follows:-

“41. In the circumstances, we have no doubt that the trial court and High Court have correctly applied and balanced aggravating circumstances with mitigating circumstances to find that the crime committed was cold blooded and involves the rape of a minor girl and murder of two children in the most heinous fashion possible. No remorse has been shown by the Appellant at all and given the nature of the crime as stated in paragraph 84 of the High Court’s judgment it is unlikely that the Appellant, if set free, would not be capable of committing such a crime yet again. The fact that the Appellant made a confessional statement would not, on the facts of this case, mean that he showed remorse for committing such a heinous crime. He did not stand by this confessional statement, but falsely retracted only those parts of the statement which implicated him of both the rape of the young girl and the murder of both her and her little brother. Consequently, we confirm the death sentence and dismiss the appeals.”

57. It is equally apt at this stage to refer the recent amendments carried out by Parliament in the Protection of Children from Sexual Offences Act, 2012 by way of The Protection of Children from Sexual Offences (Amendment) Act, 2019 as notified on 6th August, 2019. The unamended Act defines “Aggravated Penetrative Sexual Assault” in Section 5, which included, “whoever commits aggravated penetrative sexual assault on a child below the age of 12 years.” Originally, the punishment for an aggravated sexual assault was rigorous imprisonment for a term not less than 10-years but which may extend for imprisonment for life with fine.

58. The recent amendment in Section 6 of 2012 Act has substituted the punishment as follows:-

“Post the Amendment, Section 6 has been substituted as follows:-

“6. (1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine, or with death.

(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.”

[Emphasis applied]

59. The minimum sentence for an aggravated penetrative sexual assault has been thus increased from 10 years to 20 years and imprisonment for life has now been expressly stated to be imprisonment for natural life of the person. Significantly, ‘death sentence’ has also been introduced as a penalty for the offence of aggravated penetrative sexualt assault on a child below 12 years.

60. The Legislature has impliedly distanced itself from the propounders of “No-Death Setence” in “No Circumstances” theory and has re-stated the will of the people that in the cases of brutal rape of minor children below the age of 12 years without murder of the victim, ‘death penalty’ can also be imposed. In the Statement of Objects and Reasons of amendment, Parliament has shown its concern of the fact that “in recent past incidents of child sexual abuse cases administering the inhuman mindset of the accused, who have been barbaric in their approach to young victim, is rising in the country.”

If the Parliament, armed with adequate facts and figures, has decided to introduce capital punishment for the offence of sexual abuse of a child, the Court hitherto will bear in mind the latest Legislative Policy even though it has no applicability in a case where the offence was committed prior thereto. The judicial precedents rendered before the recent amendment came into force, therefore, ought to be viewed with a purposive approach so that the legislative and judicial approaches are well harmonised.

61. In the light of above discussion, we are of the considered opinion that sentencing in this case has to be judged keeping in view the parameters originating from Bachan Singh and Machhi Singh cases and which have since been strengthened, explained, distinguished or followed in a catena of subsequent decisions, some of which have been cited above. Having said that, it may be seen that the victim was barely a two-year old baby whom the appellant kidnapped and apparently kept on assaulting over 4-5 hours till she breathed her last. The appellant who had no control over his carnal desires surpassed all natural, social and legal limits just to satiate his sexual hunger. He ruthlessly finished a life which was yet to bloom. The appellant instead of showing fatherly love, affection and protection to the child against the evils of the society, rather made her the victim of lust.

It’s a case where trust has been betrayed and social values are impaired. The unnatural sex with a two-year old toddler exhibits a dirty and perverted mind, showcasing a horrifying tale of brutality. The appellant meticulously executed his nefarious design by locking one door of his house from the outside and bolting the other one from the inside so as to deceive people into believing that nobody was inside. The appellant was thus in his full senses while he indulged in this senseless act. Appellant has not shown any remorse or repentance for the gory crime, rather he opted to remain silent in his 313 Cr.P.C. statement. His deliberate, well-designed silence with a standard defence of ‘false’ accusation reveals his lack of kindness or compassion and leads to believe that he can never be reformed. That being so, this Court cannot write off the capital punishment so long as it is inscribed in the statute book.

62. All that is needed to be followed by us is what O’ Conner J. very aptly observed in California v. Ramos, 463 U.S. 992 that the “qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination” and in order to ensure that the death penalty is not meted out arbitrarily or capriciously, the Court’s principal concern has to be with the procedure by which the death sentence is imposed than with the substantive factors laid before it.

63. For the reasons aforestated, we dismiss the appeals and affirm the death sentence.

J. (ROHINTON FALI NARIMAN)

J. (SURYA KANT)

NEW DELHI

03.10.2019


SUPREME COURT OF INDIA

Ravi S/o Ashok Ghumare Vs. The State of Maharashtra

[Criminal Appeal Nos. 1488-1489 of 2018]

R. Subhash Reddy, J.

1. I have gone through the opinion of my learned Brother, Surya Kant, J. I am in agreement with the view expressed in the said judgment, to the extent of confirming the conviction recorded against the appellant, for the offence under Sections 363, 376, 377 and 302 of the Indian Penal Code, 1860 (for short ‘IPC’). However, as I am of the view that, this is not a fit case where the appellant is to be awarded capital punishment, i.e, death penalty, as such, I wish to share my view separately, in this judgment.

2. The appellant was tried for committing the rape and murder on the minor girl child “Zoyabano” and he was charged for offence punishable under Sections 363, 376, 377 and 302 IPC. After the trial, learned Additional Sessions Judge at Jalna, by judgment dated 16.09.2015, has held that appellant is guilty for the charges framed against him.

3. By order dated 18.09.2015, the trial court, by recording a finding that crime committed by the appellant is heinous, brutal and inhuman, convicted and sentenced the appellant to death for the offence punishable under Section 302 IPC and ordered that he shall be hanged by neck till he is dead, subject to confirmation by the High Court as per Section 366 of Code of Criminal Procedure and also imposed a fine of Rs.500/- (Rupees Five Hundred Only). Similarly, learned Additional Sessions Judge has convicted the appellant for offence punishable under Section 376 of IPC and ordered sentence to suffer life imprisonment and a fine of Rs. 500/-(Rupees Five Hundred Only) and a sentence of rigorous imprisonment for 10 years for the offence punishable under Section 377 IPC with a fine of Rs.500/-(Rupees Five Hundred Only) and a sentence of R.I. for one year for the offence punishable under Section 363 with a fine of Rs.500/- (Rupees Five Hundred Only). Further, it was ordered that all the sentences of imprisonment shall run concurrently.

4. The reference which was made to the High Court under Section 366 was numbered as Confirmation Case No.1 of 2015 and the appeal preferred by the appellant was numbered as criminal appeal No. 783 of 2015. The High Court by the Common Judgment and Order dated 20.01.2016, while dismissing the criminal appeal preferred by the appellant, has confirmed the death sentence imposed under Section 302 IPC. Hence, these appeals.

5. I am in agreement with the view expressed by my learned Brother, to the extent of upholding conviction, as such, there is no need to appreciate the evidence on-record in detail. As such, I confine consideration of such evidence on-record to the extent to modify the sentence on the appellant. 6. For the conviction recorded against the appellant for the offences alleged against him, by balancing the aggravated and mitigated circumstances, I am of the view that the death sentence imposed on the appellant requires modification to that of the life imprisonment, without any remission, for the following reasons.

7. For the offence under Section 302 of IPC the punishment prescribed for committing murder is death or imprisonment for life. At first instance, challenge to Section 302 of IPC was turned down by this Court in the case of Jagmohan Singh v. State of Uttar Pradesh3. Further, in Constitution Bench, this Court in the case of Bachan Singh v. State of Punjab4, ,concluded that Section 302, providing death penalty for offence of murder is constitutional. In the aforesaid judgment, this Court has indicated the standards and norms, restricting the area for imposition of death penalty. Further, for considering the imposition of sentence of death, aggravating and mitigating circumstances were also broadly indicated.

In the aforesaid judgment, while considering the scope of Section 235(2) read with Section 354(3) of the Code of Criminal Procedure, this Court has held that, in fixing the degree of punishment or in making the choice of sentence for various offences, including one under Section 302, IPC, the Court should not confine its consideration “principally or merely” to the circumstances connected with the particular crime, but also due consideration to the circumstances of the criminal. However, it is observed that, what is the relative weight to be given to the aggravating and mitigating factors, depends on facts and circumstances of each case. The aggravating and mitigating circumstances, as suggested by Dr.Chitale were mentioned in the Judgment. Paragraphs 202 to 207 of the judgment reads as under:

“202. Drawing upon the penal statutes of the States in U.S.A. framed after Furman v. Georgia [33 L Ed 2d 346 : 408 US 238 (1972)] , in general, and clauses 2 (a), (b), (c) and (d) of the Indian Penal Code (Amendment) Bill passed in 1978 by the Rajya Sabha, in particular, Dr Chitale has suggested these “aggravating circumstances”:

“Aggravating circumstances: A court may, however, in the following cases impose the penalty of death in its discretion:

(a) if the murder has been committed after previous planning and involves extreme brutality; or (b) if the murder involves exceptional depravity; or

(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed- (i) while such member or public servant was on duty; or

(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or

(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code.”

203. Stated broadly, there can be no objection to the acceptance of these indicators but as we have indicated already, we would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other.

204. In Rajendra Prasad [(1979) 3 SCC 646 : 1979 SCC (Cri) 749] , the majority said: “It is constitutionally permissible to swing a criminal out of corporeal existence only if the security of State and Society, public order and the interests of the general public compel that course as provided in Article 19(2) to (6)”. Our objection is only to the word “only”. While it may be conceded that a murder which directly threatens, or has an extreme potentiality to harm or endanger the security of State and Society, public order and the interests of the general public, may provide “special reasons” to justify the imposition of the extreme penalty on the person convicted of such a heinous murder, it is not possible to agree that imposition of death penalty on murderers who do not fall within this narrow category is constitutionally impermissible.

We have discussed and held above that the impugned provisions in Section 302 of the Penal Code, being reasonable and in the general public interest, do not offend Article 19, or its “ethos” nor do they in any manner violate Articles 21 and 14. All the reasons given by us for upholding the validity of Section 302 of the Penal Code, fully apply to the case of Section 354(3), Code of Criminal Procedure, also. The same criticism applies to the view taken in Bishnu Deo Shaw v. State of W.B. [(1979) 3 SCC 714 : 1979 SCC (Cri) 817] which follows the dictum in Rajendra Prasad [(1979) 3 SCC 646 : 1979 SCC (Cri) 749] .

205. In several countries which have retained death penalty, pre-planned murder for monetary gain, or by an assassin hired for monetary reward is, also, considered a capital offence of the first-degree which, in the absence of any ameliorating circumstances, is punishable with death. Such rigid categorisation would dangerously overlap the domain of legislative policy. It may necessitate, as it were, a redefinition of ‘murder’ or its further classification. Then, in some decisions, murder by fire-arm, or an automatic projectile or bomb, or like weapon, the use of which creates a high simultaneous risk of death or injury to more than one person, has also been treated as an aggravated type of offence. No exhaustive enumeration of aggravating circumstances is possible. But this much can be said that in order to qualify for inclusion in the category of “aggravating circumstances” which may form the basis of “special reasons” in Section 354(3), circumstance found on the facts of a particular case, must evidence aggravation of an abnormal or special degree.

206. Dr Chitale has suggested these mitigating factors:

“Mitigating circumstances- In the exercise of its discretion in the above cases, the court shall take into account the following circumstances:

(1) That the offence was committed under the influence of extreme mental or emotional disturbance.

(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.

(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.

(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above.

(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.”

207. We will do no more than to say that these are undoubtedly relevant circumstances and must be given great weight in the determination of sentence. Some of these factors like extreme youth can instead be of compelling importance. In several States of India, there are in force special enactments, according to which a “child”, that is, “a person who at the date of murder was less than 16 years of age”, cannot be tried, convicted and sentenced to death or imprisonment for life for murder, nor dealt with according to the same criminal procedure as an adult. The special Acts provide for a reformatory procedure for such juvenile offenders or children.”

8. Further in the three Judge Bench Judgment of this Court, in the case of Machhi Singh and Ors. v.State of Punjab5, this Court has considered tests to determine “rarest of rare” case, to impose death sentence under Section 302 IPC.

9. In the aforesaid judgment, this Court has held that the following questions may be asked and answered, in order to apply the guidelines indicated in Bachan Singhcase2, where the question of imposing the death sentence arises.

(a) Is there something uncommon about the crime which renders sentence for imprisonment for life inadequate and calls for a death sentence? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances, which speak in favour of the offender?

10. In this judgment, it is held by this Court that the guidelines indicated in Bachan Singhcase2, will have to be culled out and applied to the facts of each individual case, where the question of imposing death sentence arises. Paragraph 38 of the said judgment reads as under:

“38. In this background the guidelines indicated in Bachan Singh case2 will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following prepositions emerge from Bachan Singh case2 :

(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’.

(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

11. In this judgment, on facts, by holding that it is a cold-blooded, calculated and gruesome multiple murders, as a reprisal in a family feud and 17 helpless, defenceless, innocent men, women and children were gunned down while asleep on the same night in quick succession in different neighbouring villages, confirmed the death sentence imposed on Machhi Singh and two others.

12. In this case, learned counsel for the appellant has contended that the Trial Court as well as the High Court, fell in error in confining nature and brutality of crime alone, to award the sentence of death. It is submitted that nature of crime alone is not sufficient to impose the sentence of death, unless State proves by leading cogent evidence that the convict is beyond reform and rehabilitation. It is submitted that the socio-economic conditions of the convict and the circumstances under which crime is committed are equally relevant for the purpose of considering whether a death penalty is to be imposed or not. It is submitted that as the case on hand, rests on circumstantial evidence, same is also the ground not to impose capital punishment, of death.

13. In support of his argument, learned counsel for the appellant has relied on the three Judge Bench Judgment of this Court, in the case of Kalu Khan v. State of Rajasthan6, wherein the accused was charged for offence of abduction, rape and murder of 4 year old girl child, death sentence was commuted to life imprisonment. Paragraphs 32 and 33 of the said judgment reads as under:

“32. In our considered view, in the impugned judgment and order, the High Court has rightly noticed that life and death are acts of the divine and the divine’s authority has been delegated to the human courts of law to be only exercised in exceptional circumstances with utmost caution. Further, that the first and foremost effort of the Court should be to continue the life till its natural end and the delegated divine authority should be exercised only after arriving at a conclusion that no other punishment but for death will serve the ends of justice. We have critically appreciated the entire evidence in its minutest detail and are of the considered opinion that the present case does not warrant award of the extreme sentence of death to the appellant-accused and the sentence of life imprisonment would be adequate and meet the ends of justice. We are of the opinion that the four main objectives which the State intends to achieve, namely, deterrence, prevention, retribution and reformation can be achieved by sentencing the appellant-accused for life. 33. Before parting, we would reiterate the sentiment reflected in the following lines by this Court in Shailesh Jasvantbhai case [Shailesh Jasvantbhai v. State of Gujarat, (2006) 2 SCC 359 : (2006) 1 SCC (Cri) 499] : (SCC pp. 361-62, para 7)

“7. … Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of ‘order’ should meet the challenges confronting the society. Friedman in his Law in a Changing Society stated that: ‘State of criminal law continues to be – as it should be – a decisive reflection of social consciousness of society.’ Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be.”

14. In the case of Lehna v. State of Haryana7,it was held that the special reasons for awarding the death sentence must be such that compel the court to conclude that it is not possible to reform and rehabilitate the offender. Paragraph 14 of the said judgment reads as under: “……Death sentence is ordinarily ruled out and can only be imposed for “special reasons”, as provided in Section 354(3). There is another provision in the Code which also uses the significant expression “special reason”. It is Section 361. Section 360 of the 1973 Code re-enacts, in substance, Section 562 of the Criminal Procedure Code, 1898, (in short “the old Code”). Section 361 which is a new provision in the Code makes it mandatory for the court to record “special reasons” for not applying the provisions of Section 360. Section 361 thus casts a duty upon the court to apply the provisions of Section 360 wherever itis possible to do so and to state “special reasons” if it does not do so.

In the context of Section 360, the “special reasons” contemplated by Section 361 must be such as to compel the court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the legislature that reformation and rehabilitation of offenders and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country. Section 361 and Section 354(3) have both entered the statute-book at the same time and they are part of the emerging picture of acceptance by the legislature of the new trends in criminology. It would not, therefore, be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors.”

15. Learned counsel for the appellant has also relied on the three Judge Bench Judgment of this Court, in the case of Sunil v. State of Madhya Pradesh8,wherein the accused, aged about 25 years at the relevant time, was charged for offence of rape and murder of 4 year old child, death sentence was commuted to that of life imprisonment. In the said judgment, this Court has held that one of the compelling/mitigating circumstances that must be acknowledged in favour of the appellant is his young age at which he had committed the crime and further that the accused can be reformed and rehabilitated, are the other circumstances which could not but have been ignored by courts below.

16. Reliance is also placed by learned counsel for the appellant, on the three Judge Bench Judgment of this Court, in the case of Rajendra Pralhaderao Wasnik v. State of Maharashtra9, where accused was found guilty of rape and murder of 3 year old child, death sentence was substituted by life imprisonment, with a rider that the convict shall not be released from custody for the rest of his normal life.

17. The aforesaid three judgments relied on by the learned counsel for the appellant, supports the case of the appellant, when we consider to balance the aggravating and mitigating circumstances of this case on hand.

18. From the deposition of PW-9, it is clear that he is a fruit vendor, residing in Nutan Vasahat area, Jalna and the appellant also resides in the same lane. Further, it is also clear from his deposition that accused was under influence of liquor, on the day of occurrence of crime. As such, it is clear that on the day of occurrence, he was under influence of liquor and he is aged about 25 years and he had no previous history of any crimes and in absence of any evidence from the side of the prosecution to show that he cannot be reformed and rehabilitated to bring in to the main stream of the society, the judgments relied on by learned counsel for the appellant, fully support the case of the appellant, to modify the sentence.

19. In the case of Machhi Singh and Ors. v. State of Punjab3,this Court has confirmed that the death sentence to Machhi Singh and two others, mainly by recording a finding that it was a cold-blooded, calculated and gruesome murders, as a reprisal in a family feud, in which, 17 helpless, defenceless, innocent men, women and children were gunned down, as such, same can be termed as “rarest of rare” case. In the case on hand, it cannot be said to be a preplanned and pre-meditated one. To record a finding that a particular crime committed is a pre-planned and pre-meditated one, something more is required of planning to commit a murder on a day earlier to the date of occurrence. In the case on hand, where it is clear from the evidence on-record that the appellant was under influence of liquor and committed the offence, cannot be termed as a pre-planned one, to count the same as an aggravating circumstance, for balancing aggravating and mitigating circumstances.

20. In the case of Sandesh v. State of Maharashtra10, this Court, once again, acknowledged the principle that it is for the prosecution to lead evidence, to show that there is no possibility that the convict cannot be reformed. Similarly, in Mohinder Singh v. State of Punjab11,it was held in Paragraph 23 of the judgment as under: “……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.”

21. In the case of Sushil Sharma v. State (NCT of Delhi)12,this Court acknowledged that among various factors, one of the factors required to be taken into consideration, for awarding or not awarding capital punishment, is the possibility of reformation and rehabilitation of the convict. This acknowledgment was made in paragraph 103 of the judgment, which reads as under:

“103. In the nature of things, there can be no hard-and-fast rules which the court can follow while considering whether an accused should be awarded death sentence or not. The core of a criminal case is its facts and, the facts differ from case to case. Therefore, the various factors like the age of the criminal, his social status, his background, whether he is a confirmed criminal or not, whether he had any antecedents, whether there is any possibility of his reformation and rehabilitation or whether it is a case where the reformation is impossible and the accused is likely to revert to such crimes in future and become a threat to the society are factors which the criminal court will have to examine independently in each case. Decision whether to impose death penalty or not must be taken in the light of guiding principles laid down in several authoritative pronouncements of this Court in the facts and attendant circumstances of each case.”

22. In the case of Amit v. State of Maharashtra13, this Court adverted to the prior history of the accused and noted that there is no record of any previous heinous crime and also there is no evidence that he would be a danger to the society if the death penalty is not awarded to him. Paragraph 10 of the said judgment reads as under:

“10. The next question is of the sentence. Considering that the appellant is a young man, at the time of the incident his age was about 20 years; he was a student; there is no record of any previous heinous crime and also there is no evidence that he will be a danger to the society, if the death penalty is not awarded. Though the offence committed by the appellant deserves severe condemnation and is a most heinous crime, but on cumulative facts and circumstances of the case, we do not think that the case falls in the category of rarest of the rare cases…….”

23. In the case of Surendra Pal Shivbalakpal v. State of Gujarat14, this Court has held that the involvement in any previous criminal case by the accused, was considered to be a factor, to be taken into consideration, for the purpose of awarding death sentence. Paragraph 13 of the said judgment reads as under:

“13. The next question that arises for consideration is whether this is a “rarest of rare case”; we do not think that this is a “rarest of rare case” in which death penalty should be imposed on the appellant. The appellant was aged 36 years at the time of the occurrence and there is no evidence that the appellant had been involved in any other criminal case previously and the appellant was a migrant labourer from U.P. and was living in impecunious circumstances and it cannot be said that he would be a menace to society in future and no materials are placed before us to draw such a conclusion. We do not think that the death penalty was warranted in this case. We confirm conviction of the appellant on all the counts, but the sentence of death penalty imposed on him for the offence under Section 302 IPC is commuted to life imprisonment.”

24. Further, this case on hand, rests solely on the circumstantial evidence.

25. In the case of Bishnu Prasad Sinha v. State of Assam15,this Court has held that ordinarily, death penalty would not be awarded, if the guilt of the accused is proved by circumstantial evidence, coupled with some other factors that are advantageous to the convict. Paragraph 55 of the said judgment reads as under:

“55. The question which remains is as to what punishment should be awarded. Ordinarily, this Court, having regard to the nature of the offence, would not have differed with the opinion of the learned Sessions Judge as also the High Court in this behalf, but it must be borne in mind that the appellants are convicted only on the basis of the circumstantial evidence. There are authorities for the proposition that if the evidence is proved by circumstantial evidence, ordinarily, death penalty would not be awarded. Moreover, Appellant 1 showed his remorse and repentance even in his statement under Section 313 of the Code of Criminal Procedure. He accepted his guilt.”

26. Further, in the case of Aloke Nath Dutta v. State of West Bengal16,the principle that death penalty should ordinarily not to be awarded, in a case arising out of circumstantial evidence, was broadly accepted with the rider that there should be some “special reason” for awarding death penalty. Paragraph 174 of the said judgment reads as under:

“174. There are some precedents of this Court e.g. Sahdeo v. State of U.P.[(2004) 10 SCC 682] and Sk. Ishaque v. State of Bihar[(1995) 3 SCC 392] which are authorities for the proposition that if the offence is proved by circumstantial evidence ordinarily death penalty should not be awarded. We think we should follow the said precedents instead and, thus, in place of awarding the death penalty, impose the sentence of rigorous imprisonment for life as against Aloke Nath. Furthermore we do not find any special reason for awarding death penalty which is imperative.”

27. In the case of Swamy Shraddananda v. State of Karnataka17,this Court has held that the convictions based on seemingly conclusive circumstantial evidence, should not be presumed to be fool-proof. Paragraph 87 of the said judgment reads as under:

“87. It has been a fundamental point in numerous studies in the field of death penalty jurisprudence that cases where the sole basis of conviction is circumstantial evidence, have far greater chances of turning out to be wrongful convictions, later on, in comparison to ones which are based on fitter sources of proof. Convictions based on seemingly conclusive circumstantial evidence should not be presumed as foolproof incidences and the fact that the same are based on circumstantial evidence must be a definite factor at the sentencing stage deliberations, considering that capital punishment is unique in its total irrevocability. Any characteristic of trial, such as conviction solely resting on circumstantial evidence, which contributes to the uncertainty in the culpability calculus, must attract negative attention while deciding maximum penalty for murder.”

28. From the above judgments referred, it is clear that in a case of conviction based on circumstantial evidence, ordinarily the extreme punishment of death penalty should not be imposed. In a given case, guilt of the accused is proved beyond reasonable doubt, by establishing chain of circumstances, resulting in conviction, such cases, by considering balancing aspects of aggravating and mitigating circumstances, in appropriate cases, death penalty can be imposed. But, at the same time ordinarily, if no special reasons exist, in a case of conviction based on circumstantial evidence, death penalty should not be imposed. In this case on hand, the conviction of the appellant is mainly based on circumstantial evidence. On this ground also, I am of the view that the death sentence, imposed on him, is to be modified.

29. From the materials placed on record, it is clear that accused is a permanent resident of Indira Nagar, Jalna. The father of the deceased, PW-9, himself has stated that he is a fruit vendor in Nutan Vasahat area, Jalna, and accused also resides in the same lane, nearby his residence. It is also clear from the evidence of PW-9, to the East and West side of the house of the appellant, a person having buffaloes used to reside at the relevant time. From such evidence onrecord, it is easy to assess the socio-economic condition of the appellant and it can certainly be said that he is a person below poverty line.

30. In a judgment of this Court, in the case of Sunil Damodar Gaikwad v. State of Maharashtra18,while holding that court must not only look at the crime but also offender and to give due consideration to circumstances of offender, has further held that in imposing penalty, socio-economic condition can be considered as one of the mitigating factors, in addition to those indicated in Bachan Singh2 and MachhiSingh3. Para 20 of the said judgment reads as under:

“20. When there are binding decisions, judicial comity expects and requires the same to be followed. Judicial comity is an integral part of judicial discipline and judicial discipline the cornerstone of judicial integrity. No doubt, in case there are newer dimensions not in conflict with the ratio of the larger Bench decisions or where there is anything to be added to and explained, it is always permissible to introduce the same. Poverty, socioeconomic, psychic compulsions, undeserved adversities in life are thus some of the mitigating factors to be considered, in addition to those indicated in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] and Machhi Singh [Machhi Singh v. State of Punjab, (1983) 3 SCC 470 : 1983 SCC (Cri) 681] cases. Thus, we are bound to analyse the facts in the light of the aggravating and mitigating factors indicated in the binding decisions which have influenced the commission of the crime, the criminal, and his circumstances, while considering the sentence.

31. In view of the aforesaid judgments of this Court and evidence on record in this case, which establishes the socio-economic condition of the appellant, as a person below poverty line, can also be considered as one of the mitigating factors, while balancing the aggravating and mitigating factors.

32. I am conscious of recent amendments carried out to the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’), by way of Protection of Children from Sexual Offences Amendment Act, 2019. By virtue of the said amendments, taking note of increasing trend of crimes against the children, minimum sentence is increased for various offences and for offence under Section 6 of the Act i.e aggravated penetrative sexual assault, minimum imprisonment, which shall not be less than 20 years, which may extend to natural life or penalty of death. Prior to the amendments made by recent amending Act of 2019, for offence under POCSO, death penalty was not provided. By virtue of the amendments made in appropriate cases, for offences falling under provisions of the POCSO Act alone, a penalty of death sentence can be imposed. In the case on hand, the offence was committed prior to coming into force, of the Act.

33. Even then, we cannot forget the legislative intent which resulted in amendments to POCSO, while dealing with the offences against the children. At the same time, even for imposing the death sentence, for cases arising out of the provisions under POCSO Act, 2012, it is the duty of the courts to balance the aggravating and mitigating circumstances. To balance such aspects, the guidelines in Bachan Singh v. State of Punjab2 and further reiterated in the case of Machhi Singh and Ors. v. State of Punjab3 and in the case of Sushil Murmu v. State of Jharkhand19,will continue to apply. Further, repeatedly, it is said by this Court, in the various judgments that the aggravating and mitigating factors are to be considered with reference to the facts of each case and there cannot be any hard and fast rule for balancing such aspects.

34. I am clear in my mind that in this case on hand, the mitigating circumstances of the appellant, dominate over the aggravating circumstances, to modify the death sentence to that of life imprisonment. Even as per the case of prosecution, the appellant was under influence of liquor at the time of committing the offence, and there is no evidence on record from the side of prosecution, to show that there is no possibility of reformation and rehabilitation of the appellant. Further, age of the appellant was 25 years at the relevant time and conviction is solely based on circumstantial evidence. Taking all such aspects into consideration, the death penalty imposed on the appellant is to be modified to that of life imprisonment, for the offence under Section 302 IPC.

35. Long line of cases decided by this Court are cited by learned counsel for the appellant, in similar set of facts and circumstances, this Court has modified the death sentence to that of imprisonment for life, without any remission. Few recent decisions of this Court are:

36. In a three Judge Bench Judgments of this Court, in the case of Nand Kishore v. State of Madhya Pradesh20dated 18.01.2019 and in the case of Raju Jagdish Paswan v State of Maharashtra21dated 17.01.2019, for which I am party, in similar circumstances, this Court has modified the death penalty to that of life imprisonment, without any remission.

37. Further, in a recent three Judge Bench Judgment of this Court, in the case of Vijay Raikwar v. State of Madhya Pradesh22, where there was an offence involving rape and murder of a girl aged about 71/2 years, while confirming the conviction of the offences under Section 376(2)(f) and Section 201 IPC and also under Sections 5(i), 5(m) and 5(r) read with Section 6 of the POCSO Act, this Court commuted the death sentence to life imprisonment.

38. In the aforesaid judgments, in a similar set of facts, this Court has modified the sentence to life imprisonment. In this case also there is no previous crime record for the appellant. The above referred judgment, supports the case of the appellant.

39. For the aforesaid reasons, these appeals are allowed in part. While confirming the conviction recorded by the Trial Court, death sentence imposed on the appellant is modified to that of life imprisonment i.e to suffer for life till his natural death, without any remission/commutation.

J [R.Subhash Reddy]

 

New Delhi;

October 03, 2019


1″Y-STR analysis for detection and objective confirmation of child sexual abuse”, authored by Frederick C. Delfin – Bernadette J. Madrid – Merle P. Tan – Maria Corazon A. De Ungria.

2″Forensic DNA Evidence: Science and the Law”, authored by Justice Ming W. Chin, Michael Chamberlain, A,y Roja, Lance Gima

3 1973(1) SCC 20

4 1980(2) SCC 684

5 1983(3) SCC 470

6 (2015) 16 SCC 492

7 (2002) 3 SCC 76

8 (2017) 4 SCC 393

9 Review Petition (Criminal) Nos. 306-307 of 2013

10 (2013) 2 SCC 479

11 (2013) 3 SCC 294

12 (2014) 4 SCC 317

13 (2003) 8 SCC 93

14 2005(3) SCC 127

15 (2007) 11 SCC 467

16 (2007)12 SCC 230

17 (2007) 12 SCC 288

18 (2014) 1 SCC 129

19 (2004) 2 SCC 338

20 Criminal Appeal No. 94 of 2019

21 Criminal Appeal No. 88-89/2019

22 (2019) 4 SCC 210


 

Guru @ Gurubaran & Ors. Vs. State represented by Inspector of Police 27/09/2019

Life sentenced converted-The The accused can only be held guilty of having committed the offence under Section 324 IPC. He has already undergone imprisonment for around 11 years and, therefore, his conviction under Section 302 IPC is altered to Section 324 IPC and the sentence is reduced to the period of incarceration already undergone.

ACTS: Section 302, Indian Penal Code

SUPREME COURT OF INDIA

Guru @ Gurubaran & Ors. Vs. State represented by Inspector of Police

[Criminal Appeal No. 1893 of 2010]

Deepak Gupta, J.

1. This appeal is filed by Accused Nos. 1, 2, 3, 5 and 9 against the judgment of the High Court whereby Guru @ Gurubaran (A1) and Durai @ Durairajan (A2) have been convicted under Section 302, Indian Penal Code (IPC) and sentenced to imprisonment for life and to pay a fine of Rs.1000/each with default sentence of 3 months rigorous imprisonment (RI). As far as Vettri @ Vetrivell (A3) is concerned, he was convicted under Section 324 IPC on two counts and sentenced to one year RI on each count and fine of Rs.1000/with default sentence of 3 months. Narayanan (A5) and Srinivasan (A9) along with other accused were convicted under Section 323 IPC and sentenced to undergo six months RI and pay fine of Rs.1000/each with default sentence of 3 months. All the sentences were to run concurrently.

2. The prosecution case is that Parasuraman (PW14), son of deceased Saroja and Munusamy Pillai (PW1), was in love with Uma, the younger sister of A1. They both got married and after the marriage, PW14 lived in his wife’s house. However, Saroja (deceased) did not approve of this. Thereafter, PW14 came back to his house. On 03.03.1998, it is alleged that Jayaraman (A4) assaulted Nagarajan (PW2), brother of Saroja and brotherinlaw of PW1. To settle the dispute, a Panchayat was called the next day. It is admitted that this Panchayat was called at the instance of A1. The Panchayat was to be conducted in the evening. However, since the Pradhan of the Panchayat was indisposed, the Panchayat could not be held.

Thereafter, PW2, his sister Saroja (deceased), his wife Rani (PW7), Murugan (PW13) and Naveen Kumar, son of PW2 and PW7 stood outside the house of PW2 talking amongst themselves. According to him, PW13 had come to the village because of the Panchayat. While they were standing there, A1 came armed with a sickle (Koduval), A2 armed with an Iron Pipe, A3 armed with a sickle (Koduval) and A4 to A9 carrying thick wooden staffs in their hands. It is alleged that A1 attacked deceased Saroja with a sickle on the front portion of her head and said that it was only because of her that the younger sister of A1 has to live separately from her husband. A2 gave a blow on the back of the neck of Saroja with an iron pipe.

The other accused are alleged to have attacked Saroja with wooden staffs in their hand. When the family members of Saroja tried to protect her, all the accused surrounded her and, as such, they could not protect her. According to the eyewitnesses, they were also attacked by the members of the aggressive party. The version of all the eyewitnesses is similar.

3. However, there are some discrepancies with regard to the manner in which the said incident took place. According to PW1, on the date of Panchayat, first a verbal altercation took place between the two sides and then the attack took place whereas, according to PW2 and some of the other eyewitnesses, the attack took place without any provocation. We are of the considered view that for the purpose of deciding this appeal, we can even presume that there was some verbal altercation between the two sides.

4. The occurrence is not denied. The main defence is that there was a free fight on both sides and that there is no evidence to show that there is prior meeting of minds. The accused had not been convicted under Section 34 or Section 149 IPC and, therefore, each individual accused can only be convicted for the injury attributed to that individual. Therefore, it becomes relevant to refer to the medical evidence of the autopsy surgeon Dr. Rajamani, Assistant Surgeon (PW3).

The injuries are as follows:

“1. An Antemortem red, oblique lacerated wound measuring 6cm x 1cm x 1cm, exposing the bones over the left frontal region of scalp, 1 cm away from the midline with bleeding and blood clots. On Exploring the wound, echymosis seen behind the scalp over the frontal, parietal, temporal and back of skull. There is a fracture of frontal bone measuring 5 cm in length, vertical, para sagittally and 1cm away from midline over the left side, extended to upwards to fronto parietal junction, and another fracture line which is adjacent to it and slightly oblique from the frontal bone to towards fronto parietal junction, 4cm x 1/8 on and on exposing the skull bones blood clots seen over the membranes of the leftcerebral hemisphere of brain on the frontal, parietal, temporal and occipital region, of the brain. Both fractures are involving inner and outer table of the skull.

2. An abrasions varying size from 3cm to 21/2cm x 1/4 cm with ½ cm different from each other, oblique, placed over middle 1/3 of right side neck.

3. An AM abrasion 21/2cm x 1/4 cm obliquely placed 1cm away from injury No.2 on right side of neck.

4. An AM swelling whole of the anterior and lateral side of right side neck. On exposing the injury No.2, 3, 4 minor blood clots under the skin of neck and congestion of sternomastoid muscle and blood clots seen in anterior and lateral side of right side neck.”

5. The doctor states that these injuries caused the death. The first injury is a lacerated wound and it is urged by Mr. S. Nagamuthu, learned senior counsel, that this injury could not have been caused by sickle (Koduval), which is a sharpedged weapon. A sickle is an instrument mainly meant for cutting grass and crops. The inner side is sharp but the outer side is blunt. While using it as an instrument of agriculture only, the sharp edge is used but while using it as a weapon of offence, more often than not, it will be the outer side which will be used to hit the victim. The doctor has opined that the injury could have been caused by a sickle which is MO1 and, therefore, the medical evidence fully corroborates the version of all the eyewitnesses.

6. It was next urged that the offence was not of murder but may amount to culpable homicide not amounting to murder. It has been urged that the case would fall within Exception 4 to Section 300 IPC, which reads as follows:

“Exception 4 – Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.”

7. We are of the view that the accused cannot take benefit of this Exception. It has come in evidence that all the accused persons came armed. Two were armed with sickles, one with an iron pipe and the other with wooden staffs. Even if it is assumed that they may not have come with the intention of killing, the fact that they were armed, clearly indicates that the occurrence did not take place in the heat of passion, upon a sudden quarrel. As pointed out above, both sides were coming to attend a Panchayat to settle a dispute. Where was the need to carry arms if the intention was only to settle a dispute? Even otherwise, we feel that Exception 4 is not applicable because the manner in which the blow was given right on the middle of the head, brings this case squarely within clause “Fourthly” of Section 300 IPC, which reads as follows:

“300. Murder –

xxx xxx xxx

Secondly xxx xxx xxx

Thirdly xxx xxx xxx

Fourthly If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.”

8. A1 should have known that the act which he is performing, of hitting the deceased on the head with a sickle with such great force causing fracture of the skull, is so dangerous that it would have imminently caused death. Therefore, we find no reason to alter the sentence or conviction of Guru @ Gurubaran (A1).

9. However, as far as Durai @ Durairajan (A2) is concerned, since the High Court has held that neither Section 34 nor Section 149 IPC are applicable, each accused will only be responsible for his own acts and injuries. In this behalf, reference was made to a judgment of this Court in the case of Atmaram Zingaraji vs. State of Maharashtra[1 (1997) 7 SCC 41]. There is no appeal by the State. As far as A2 is concerned, he is alleged to have given a blow with an iron pipe on the back of the neck of the deceased. This resulted in injury numbers 2 and 3.

They are merely abrasions and could not have caused death. Therefore, the accused can only be held guilty of having committed the offence under Section 324 IPC. He has already undergone imprisonment for around 11 years and, therefore, his conviction under Section 302 IPC is altered to Section 324 IPC and the sentence is reduced to the period of incarceration already undergone. As far as Vettri @ Vetrivell (A3), Narayanan (A5) and Srinivasan (A9) are concerned, we find no reason to interfere with the judgment of the High Court as each has been held guilty for the offence which they have committed.

10. In view of the above, the appeal of Accused Nos. 1, 3, 5 and 9 is dismissed and the appeal of Accused No. 2 is allowed and his conviction is altered from offence punishable under Section 302 IPC to offence punishable under Section 324 IPC and the sentence is reduced to the period of incarceration already undergone.

11. Accused Appellant Nos.1 & 2 were granted bail vide this Court’s order dated 08.01.2018. In view of the above, bail bond of Appellant No.1 (A1) is cancelled. He shall be taken into custody forthwith to serve remaining period of the sentence and bail bond of Appellant No.2 (A2) is discharged. Pending application(s), if any, stand(s) disposed of.

J. (Deepak Gupta)

J. (Aniruddha Bose)

New Delhi

September 27, 2019


Karuppanna Gounder Vs. State represented by the Inspector of Police – 17/09/2019

SUPREME COURT OF INDIA JUDGMENTS

Accused acquitted : The question is whether the death of the deceased could be attributed to the injury caused by the appellant A1. The appellant is alleged to have used the Sammatti (hammer) and he gave a blow at the back of the head or on the neck of the deceased. Both the injuries do not correspond with the injury of the back of the head or neck. These injuries can be related to the attack made by A2 Rajendran, A3 and A4, who have alleged to have used iron rods. Unfortunately, A3 and A4 have been acquitted and A2 has only been convicted for causing simple injury with a weapon.we give benefit of doubt to the appellant no.1, acquitting him of the offence of murder but convict him under Section 324, IPC.

ACT: Section 302, Indian Penal Code, 1860 and 324

SUPREME COURT OF INDIA

Karuppanna Gounder Vs. State represented by the Inspector of Police

[Criminal Appeal No. 557 of 2010]

DEEPAK GUPTA, J.

1. This appeal filed by the accused appellant is directed against the judgment and order of the High Court of Madras dated 19.12.2008, whereby conviction of the appellant no.1 (A1) under Section 302, Indian Penal Code, 1860 (IPC for short) has been upheld. Since appellant No.2 (A2 Rajendran) has died during the pendency of this appeal, the appeal shall stand abated in so far as appellant no.2 is concerned.

2. The facts of the case are that Chinnappa Gounder (deceased) was the neighbour of the first accused. They both had adjacent landed properties and shared a common boundary. There was a common well on this boundary which was also divided between the appellant no.1 and the deceased. A dividing wall was there in the well.

3. The appellant had initiated some civil proceedings and appear to have obtained an order permitting accused no.1 to repair the well. On 17.07.2000, Karuppanna Gounder, his soninlaw Rajendran, his wife Thangaiyee, his son Mayakrishnan, and some others were removing sand from their portion of the well when PW6, son of the deceased Chinnappa Gounder objected to this action since they were dropping the sand on the passage used by the deceased and his family.

4. On this a quarrel ensued and there was a verbal altercation between the parties. The first accused Karuppanna Gounder attacked Chinnappa Gounder with a Sammatti (hammer), and A2, his son-in-law used a Koduval (sickle) to attack Chinnappa Gounder on the head. A4 and A5 attacked the deceased with iron rods and hit him on the head while the other accused attacked the deceased with stones and sticks. When PW6 tried to intervene he was also attacked by the accused. Thereafter, Chinnappa Gounder was taken to the hospital where he died. After completing all investigations, the police filed a report under Section 173 of the Code of Criminal Procedure, 1973 against the appellant no.1 and 12 other accused. They pleaded not guilty and claimed trial. After trial, the trial court found A1Karuppanna Gounder guilty of charge of murder and he was awarded life imprisonment. A2Rajendran was also held guilty under Section 302, 307, 324 of IPC and was awarded life imprisonment for the offence of murder. All the other accused who were charged for various offences including murder were acquitted by the trial court.

5. The High Court upheld the sentence of the A1appellant herein, but as far A2soninlaw, Rajendran was concerned, it was held that the injuries caused on the skull of the deceased Chinnappa Gounder were fatal. However, as per the medical opinion this injury could not have been caused with Koduval (sickle). Since the injury was a lacerated wound, the High Court held that it could not have been caused by a sharp-edged weapon. The court further held that there was no attempt to murder by A2 but he caused simple injuries to 4 persons i.e., PW6, PW9, PW10 and PW11, and awarded 3 years rigorous imprisonment.

6. We have heard Mr. S. Nagamuthu, learned senior counsel appearing for the appellant no.1. The main issue is whether the injury caused by the appellantA1 can be said to be the cause of death of the deceased. There are many eyewitnesses, including PW1, A. Senthil Kumar. Since the depositions made by all of them are similar, we are only referring to the statement of PW1.

7. According to this witness, after the verbal altercation took place, the appellantA1 and his son Kandasamy returned to their house but came back to the place of occurrence soon along with their son-in-law Rajendran. It is alleged that the appellantA1 chased the deceased with Sammatti (hammer) in his hand and gave a blow with the hammer on the back side of the head of the deceased. Here we may mention that there is some variation in the translation because at some places it is mentioned as back of the neck and in some places as back of the head. Be that as it may, the injury allegedly caused to Chinnappa Gounder by the appellant no.1 was at the back of the head. Chinnappa sat down raising a cry. Then A2Rajendran hit him on the centre of the head with a Koduval (sickle). A3 and A4 allegedly hit the deceased at the place where A2Rajendran had hit the deceased. We may point out that in cross-examination all have admitted that both the appellants gave only one blow each to the deceased Chinnappa Gounder.

8. As observed above, the High Court held that the injury on the centre of the head could not have been caused by the Koduval (sickle) only on the ground that the injury was a lacerated wound and, therefore, could not have been caused with a sharpedged weapon. We are of the view that this view of the High Court may not be correct because a Koduval (sickle) has a sharp side on the inner portion and a blunt side on the outer portion. Injury could have been caused by the outer side of the Koduval (sickle). Unfortunately, the State has not filed any appeal and since the occurrence took place 19 years back, we may not reopen the matter.

9. Now coming to the postmortem report, there are 4 injuries mentioned out of which two are relevant and they are as follows:”

1. Laceration 10 x 2 cm bone deep on middle of head in parietal area.

2. Compound fracture skull with laceration 10x4x3 cm deep from frontal to parietal area of head. Brain matter is exposed with injury to membranes.”

10. The first injury is 10 x 2 cm bone deep on the middle of the head in the parietal area meaning from the centre of the skull towards the back. The second injury which is a bigger injury goes from the frontal to the parietal area. The injury was caused with such great force that the skull broke into many pieces and the brain matter had come out of the skull.

11. The question is whether the death of the deceased could be attributed to the injury caused by the appellant A1. The appellant is alleged to have used the Sammatti (hammer) and he gave a blow at the back of the head or on the neck of the deceased. Both the injuries do not correspond with the injury of the back of the head or neck. These injuries can be related to the attack made by A2 Rajendran, A3 and A4, who have alleged to have used iron rods. Unfortunately, A3 and A4 have been acquitted and A2 has only been convicted for causing simple injury with a weapon. Furthermore, since only one accused is left, we cannot take recourse to the provisions of Section 34 or Section 149 IPC.

12. In view of the above, we give benefit of doubt to the appellant no.1, acquitting him of the offence of murder but convict him under Section 324, IPC. The appellant has already undergone sufficient punishment for that offence and, therefore, his sentence is modified to the period already undergone by him. The appellant is on bail, his bail bonds are discharged. The appeal is partly allowed in the aforesaid terms. Application(s), if any, shall also stand dismissed.

J. (Deepak Gupta)

J. (Aniruddha Bose)

New Delhi

September 17, 2019


 

Mohd. Aslam Versus State of U.P. -12/02/1974

AIR 1974 SC 678 : (1974) 4 SCC 91 : (1974) CriLJ SC 605


(SUPREME COURT OF INDIA)

(Before : D. G. Palekar, K. K. Mathew And S. N. Dwivedi, JJ.)

Criminal Appeal No. 32 of 1974,

Decided on : 12-02-1974.

Penal Code, 1860—Section 302—Sentence—Death Sentence—Single stab wound caused by youth of 20 years—Background of hostile atmosphere—Sentence of death reduced to life imprisonment.

In this surcharged atmosphere it appeals the appellant who was an impressionable young man must have been emotionally affected and that is why he and his friend Saidullah, also a young lad, decided to murder him. Both of them waylaid the deceased in the evening and while Saidullah caught him from behind the appellant Mohd. aslam stabbed him with a knife in the chest. There was only one stab wound and that resulted in death. It appears to us that the appellant must have been influenced by the general atmosphere in the family which was hostile to the deceased, and having lost his head committed this crime. We think that the High Court would have been well advised, having regard to the age of the appellant and also the circumstances of the crime, to have reduced the sentence to one of life imprisonment. Confirming the conviction under Section 302 we set aside the sentence of death imposed on the appellant and sentence him to life imprisonment.

Judgment

Palekar, J—In this appeal which came before us by special leave we are concerned only with the sentence, since the special leave was limited to the question of sentence.

2. The present appellant Mohd. aslam s/o Faiyaz Hussain and a friend of his Saidullah were both convicted by the learned Sessions Judge of Pilibhit for offences under Section 302 and Section 302 r/w Section 34, I.P.C., and while the appellant Mohd. aslam was sentenced to death, Saidullah was sentenced to life imprisonment. Their appeal was dismissed by the High Court at Allahabad and the sentence of death passed on the appellant Mohd. aslam was confirmed.

3. So far as the conviction of the appellant is concerned we do not think there can be any objection to the same. The appellant’s conviction under Section 302, I.P.C. for the murder of his brother-in-law Manzoor Hussain was correct and we do not see any good ground for interference. The only question with which we propose to deal is the sentence imposed on him.

4. The appellant was hardly 19 or 20 years old when he committed the offence. The learned Sessions Judge duly noted that the appellant was young but was of the view that his “age would not come into consideration” and for that he thought “there was well-established law”. The High Court, in its turn, thought that there was no extenuating circumstances. It appears to us that both the courts have adopted a very mechanical approach. The deceased Manzoor Hussain had married the appellant’s sister Iran Begum about 2 years prior to the offence. Within a year after the marriage, Manzoor Hussain left his wife. She apparently came and lived with her parents. The whole family, including the appellant, appears to have been very much exercised over this affair. But they must have thought that it would be possible some day for Iran Begum to go back to her husband. But four months before the offence, Manzoor Hussain made this impossible by marrying another girl. This led to criminal activities between both the families and complaints and cross-complaints were filed. A chapter case was also started. In this surcharged atmosphere it appears the appellant who was an impressionable young man must have been emotionally affected and that is why he and his friend Saidullah, also a young lad, decided to murder him. Both of them waylaid the deceased in the evening and while Saidullah caught him from behind the appellant Mohd. aslam Stabbed him with a knife in the chest. There was only one stab wound and that resulted in death. It appears to us that the appellant must have influenced by the general atmosphere in the family which was hostile to the deceased, and having lost his head committed this crime. We think that the High Court would have been well advised, having regard to the age of the appellant and also the circumstances of the crime, to have reduced the sentence to one of life imprisonment. Confirming the conviction under Section 302 we set aside the sentence of death imposed on the appellant and sentence him to life imprisonment.