HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Capital Sentence Reference No. 2 of 2008 State of U.P. Vs. Akhlaq and another Connected with Criminal Appeal No. 1726 of 2008 (Jail Appeal) Afaq Vs. State of U.P. Connected with Criminal Appeal No. 1727 of 2008 (Jail Appeal) Akhlaq Vs. State of U.P. and Criminal Appeal No. 1774 of 2008 Ekhlaque (Mohd. Ekhlaque) Vs. State of U.P. Hon'ble Imtiyaz Murtaza,J.
Hon'ble Virendra Kumar Dixit,J.
(Delivered by Hon. V.K.DIXIT,J.)
1. By these appeals, the appellants, Afaq and Akhlaq alias Ekhlaque alias Mohd. Ekhlaque (hereinafter to be referred as Akhlaq) seek to challenge the judgment and order dated 15.07.2008 passed by the learned Special Judge, Gangsters Act, District Faizabad in Gangster Case No. 738 of 2003 whereby the appellants have been held guilty of charges under Sections 302, 307/34 IPC and Section 3 (1) of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, for committing the murder of Altaf, Agma, Hazarabano and Sonu and for causing injuries to Salma and thereby awarded sentences as under :
__________________________________________________________ Appellants Found guilty of an Sentenced to offence under Section Akhlaq 3(1) of the U.P. Gangsters & 3 years RI Anti-Social Activities and fine of (Prevention) Act,1986. Rs.5000/- and in default of payment of fine,to undergo further Imprisonment of one year.
307/34 I.P.C. 5 years RI and fine of Rs.5000 and in default of payment of fine,to undergo further Imprisonment of one year. 302 I.P.C. Death Afaq 3(1) of the U.P. Gangsters & 3 years RI Anti-Social Activities and fine (Prevention) Act,1986. Rs.5000/- and in default of payment of fine, to undergo further Imprisonment of one year. 307/34 I.P.C. 5 years RI and fine of Rs.5000 and in default of payment of fine, to undergo further Imprisonment of one year. 302 I.P.C. Death ---------------------------------------------------------------------------- 2. Thumbnail sketch of the facts of the case is as mentioned herein below:
The complainant in the instant case is Ausafulnisa wife of Ambia Khan resident of village Jaganpur police station Raunahi District Faizabad who happens to be the mother of deceased Agma. She lodged the FIR in question at the Police Station Raunahi District Faizabad on 23.07.2003 at 6.45 hrs. The allegations in the F.I.R substantially are that the daughter of complainant, Agma (deceased), was tied in nuptial knots with Altaf son of Saeed resident of Nimaicha Salheypur, Police Station Raunahi, District Faizabad. It is alleged that there was a bad blood between her son-in-law Altaf on one hand and his brothers namely Akhlaq and Afaq, on the other hand. The complainant had gone to the house of her son-in-law on 22.07.2003 to bring about settlement between them. She stayed back there in the night. It is further alleged that at about 3.30 hrs. Akhlaq and Afaq assaulted her son-in-law Altaf, daughter, grand son and grand daughters with their axes. When the assaulted persons screamed for help, which attracted people and thereupon being challenged, both the appellants fled away from the spot. It is further alleged that when all the injured persons were being taken to Faizabad for treatment, her daughter Agma, son-in-law Altaf and grand son Sonu succumbed to their injuries in the way and her grand daughter Hazarabano who was referred by the District Hospital to Lucknow, also succumbed to her injuries on way to Lucknow. Her nine year old grand daughter Salma was taken to District Hospital, Faizabad, for treatment and she was the only injured who survived.
3.On the basis of the said complaint, a case was registered as Crime No. 485 of 2003 under Sections 302,307,324, 120-B IPC and Section 3(1) of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, at Police Station Raunahi District Faizabad. The Station Officer of the police station, Sri Abhimanyu Dhar Dwivedi who was present at the police station, as Investigating Officer started the investigation of the case. After investigation the chargesheet under Sections 302,307,324,120-B I.P.C. and Section 3(1) of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 was filed against the accused Akhlaq, Afaq, Smt. Nagina and Smt. Nagma. On the basis of aforesaid chargesheet on 15.04.2004 the learned trial court framed charge under Sections 302,307,324,120-B I.P.C. and 3(1) U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 to which the appellants Akhlaq and Afaq and non appellants Smt. Nagina and Smt. Nagma pleaded not guilty and claimed trial. Having denied the charge the appellants and co-accused Smt. Nagina and Smt. Nagma faced trial. During the trial the prosecution in support of its case examined in all eight witnesses namely P.W.1 Adil, P.W.2 Salma and P.W.3 Ausafulnisa who was also complainant, P.W.4 Dr. Chandra Shekhar Singh, P.W.5 Dr. A.P. Tiwari, P.W.6 Investigating Officer Shri Abhimanyu Dhar Dwivedi, the then Station Officer of Police Station Raunahi District Faizabad, P.W.7 Dr. D.P. Mishra and P.W.8 Shri Azad Keshari Sub Inspector, Police Station Raunahi District Faizabad.
4. The accused in their statements under section 313 Cr.P.C denied the incriminating evidence appearing against them. They pleaded that they have been implicated in a false case due to enmity and claimed to be innocent.
5. The trial court on appraisal of the entire evidence on record held that the charges under Sections 302,307,324 IPC and Section 3(1) of The U.P. Gangsters & Anti-Social Activities (Prevention) Act, 1986, were proved against the appellants Akhlaq and Afaq, who were held guilty of all the aforesaid offences and they were sentenced as aforesaid. No offences were found proved against Smt. Nagina and Smt. Nazma and accordingly they were acquitted.
6. Reference under Section 366 of Code of Criminal Procedure, 1973 has been made by the learned trial court for confirmation of the death sentence to the appellants.
7. Feeling aggrieved, the appellants have filed the present appeals in this Court.
8. Vide order dated 09.11.2009, learned counsel Sri Ashok Pandey, Advocate was appointed Amicus Curiae for the appellant Afaq.
9. We have heard learned counsel for the appellants and also the learned A.G.A at length and perused the trial court record.
10. In order to appreciate the aforesaid rival contentions of the learned counsel for the parties, we have independently scrutinized the oral as well as documentary evidence appearing on record with utmost care.
11. The witnesses examined by the prosecution in order to prop up its case, are P.W.1 Adil, P.W.2 Salma, P.W.3 Ausafulnisa, P.W.4 Dr. Chandra Shekhar Singh, P.W.5 Dr. A.P. Tiwari, P.W.6 Investigating Officer Shri Abhimanyu Dhar Dwivedi, the then Station Officer of Police Station Raunahi District Faizabad, P.W.7 Dr. D.P. Mishra and P.W.8 Shri Azad Keshari Sub Inspector, Police Station Raunahi District Faizabad.
12. (i) P.W.1 Adil son-in-law of complainant-Ausafulnisha, deposed that his sister-in-law Agma was married to Mohd. Altaf resident of village Nimaicha. She had three children namely Hazarabano (daughter), Salma (daughter) and Sonu (son) and that she was also pregnant at the time of occurrence. He also deposed that the deceased Altaf on one hand and accused Afaq and Akhlaq on the other hand, who also happened to be the full blooded brothers of deceased Altaf had a discord over a piece of land which grew into enmity between the two sides. He and his mother-in-law had the knowledge of this enmity and in order to resolve the dispute, he along with his mother-in-law had gone to the house of Altaf on 22.07.2003. He further deposed that they could not meet the accused during the day time and hence they stayed back there in the intervening night on 22/23.07.2003. It is also deposed that while Altaf was asleep outside the house, he, his mother-in-law and his sister-in-law and her children were asleep in the eastern room, in the court yard and in the western room of the house respectively. He further deposed that on 23.7.2003 at about 3.00 hrs, they heard the screams of Agma wife of Altaf followed by the screams of her children and immediately, he rushed outside the room and saw that accused appellants Akhlaq and Afaq were mercilessly inflicting blows by means of axe on Altaf, his wife Agma and her three children. He yelled for help and on hearing the alarm, one Nasim of village Nimaicha came there with a torch in his hand but in the meantime, both the accused persons fled away from the scene of occurrence. He further deposed that when he came out, he saw Altaf writhing in pain on account of injuries from blows of axe. He recalled that about a week prior to the incident, he and others had gone to village Nimaicha to bring about rapprochement between the disputing parties but the accused persons continued to stick to their guns. He further deposed that the accused-appellants had shifted wife and children in their in-laws house and also mortgaged agricultural land with the intention to commit murder in the pre-planned manner. He further deposed that the wife and children of both the accused had left the house two days prior to the incident. Reverting to the occurrence, he further deposed that the injured persons were taken to hospital where Altaf and his wife Agma were declared brought dead while injured Hazarabano and Salma were medically examined in District hospital. As the condition of Hazarabano was critical, she was referred to Medical College, Lucknow. She was rushed to Lucknow but she died at the gate of Medical College, Lucknow. Sonu (son of Altaf) also died during the treatment. The First Information Report of this incident was lodged by his mother-in-law Ausafulnisha at the Police Station Raunahi, District Faizabad. His statement was also recorded by the Investigating Officer. He also deposed that lots of people had collected on the spot but they were not willing to get trapped in the court proceedings on account of fear of reprisal from the accused persons.
(ii) In cross examination, he denied the suggestion that he had been involved in any criminal case. He also denied the suggestion that he or his brother ever lobbed bomb at Narendra Singh in the local courts. He also denied knowledge that Usha Rawat was named as accused in any criminal case involving incident of firing. He also denied the allegation that he ever opened fire by gatecrashing into some R.D.Inter college in Sohowal and explained that at the time of said incident, he was in Bombay. He also explained that he had installed a saw machine. He however denied that he was involved in the venture without any valid licence or that he was ever challaned for illegally running saw machine. He further explained that the dispute revolved round opening of door towards the piece of land which was being disputed to be part of share of Altaf. He also stated that three days prior to the incident, a brawl had taken place between Altaf and Afaq and in connection with this incident, a written report was submitted to the police station upon which a N.C.R was lodged. However, both sides thereafter made peace. He denied the suggestion that the wife (Agma) who was murdered was the second wife of Altaf. He also denied the suggestion that the accused appellant Akhlaq was blind. He also dwelt upon precise details of arrangement of sleeping in the house of Altaf.
(iii)This witness was subjected to gruelling cross examination but nothing reflecting on the prosecution case could be elicited which may impeach the testimony or the presence of this witness on the spot.
13.(i) The next witness is Salma who is arrayed as P.W. 2. She is the daughter of deceased Altaf. At the time of occurrence, she was aged about nine years. On the fateful night, she deposed that she was sleeping with her mother, father, sisters and brother; that at about 3.00 hrs., Akhlaq and Afaq had assaulted her, her father, mother, sister and brother with their axes. She further deposed that she had fallen unconscious after sustaining injuries.
(ii) In her cross examination, she stated that she had taken admission in 6th standard in A.I.T. Inter college and she had passed her fifth standard from Fatima School. She also stated that Adil was his uncle (husband of mother's sister) while Naseem was the son of her father's sister and that he was a native of village Nimaicha. On the day of occurrence, she stated that Naseem had not come to fetch her maternal grand mother. She also stated that she was taken for medical examination by a police constable and that she had suffered three injuries on her body. She denied that she was deposing after being tutored. Her mental ability was also tested by the court by asking her to tell the time as indicated by the wall clock. She recognized the accused/appellants Mohd. Akhlaq and Afaq who were present in Court. She also stated that she had often seen her father and Afaq quarreling. She also stated that in-laws of Akhlaq used to live in Nimaicha and Akhlaq also used to reside in village Nimaicha. She denied the knowledge that her uncle had purchased some land in village Sheikhpur. She also stated that at the time when incident took place, her maternal grand mother was present at the scene.
(iii). This witness was also subjected to gruelling cross examination but nothing shaking the foundation of prosecution case or impeaching the testimony of this witness could be elicited.
14 (i)The third witness examined by the prosecution is P.W.3 Smt. Ausafulnisha. She is complainant who lodged the F.I.R. She happens to be mother-in-law of the deceased Mohd. Altaf. She deposed that her son-in-law had two brothers namely Afaq and Akhlaq. Her son in law on one hand and accused namely Afaq and Akhlaq on the other hand, were embroiled in a land dispute. She further deposed that she had gone along with her other son-in-law namely Aadil at the house of her son-in-law to resolve the dispute and stayed there in the night. She further stated that at about 3.30 hrs., she woke up on hearing children groaning and weeping and saw that Afaq and Akhlaq were assaulting Sonu, Rani alias Hazarabano, Salma, Altaf and Agma with axe. She screamed for help upon which Nasim and other persons of the village came on the spot and upon being challenged, the accused Afaq and Akhlaq fled away from the scene of occurrence. Thereafter, she further deposed, vehicle was arranged and injured were rushed to Faizabad for treatment but on the way, her daughter Agma, son-in-law Altaf and grand son Sonu succumbed to injuries. She further deposed that after admitting the injured in the hospital, she went to the Police Station Raunahi and lodged the FIR (Ext. Ka-1).
(ii). In cross examination, when she was confronted with her statement recorded under section 161 Cr.P.C she did not deny that she had given the statement as read out to her. She however denied the suggestion that she had not accompanied Salma but it was police constable who had taken Salma to hospital. She denied the knowledge as to what was the conveyance used by the accused. She had given the statement to the effect that the accused Afaq had shifted his wife Nazma and children to his in law's house in a tempo. She denied to have had knowledge whether Nazma (wife of Afaq) was pregnant and therefore, she had gone to her father's house. She also stated that she knew Urdu language only.
(iii). This witness was also subjected to gruelling cross- examination but nothing shaking the foundation of prosecution case or impeaching the testimony of this witness could be elicited.
15 (i). P.W.4 Dr. Chandra Shekhar Singh, Medical Officer, Sri Ram Hospital, Ayodhya District Faizabad stated that on 23.07.2003 he was posted as medical Officer in Sri Ram Hospital Ayodhya District Faizabad. On that day he conducted the postmortem examination of Altaf Ahmad and found the following ante-mortem injuries :
1.Incised wound of size 9 cm X 2 cm. in the bone deep on the right side of head, 4 cm. above right ear.
2.Incised bone 9 cm. X 3 cm. in the bone deep 1 cm. below injury no.1.
3.Incised bone 13 cm. X 4 cm. in the bone deep on right side of face.
4.Incised bone 1 cm. X 2 cm. in the bone deep 1 cm. below injury no.3.
5.Incised bone 10 cm. X two and half in the bone deep on right hand opposite palm.
(ii). On internal examination he found that parietal occipital and temporal bones were fractured, membrane of brain and brain were torn and about 50 ml. clotted blood was found inside the scalp. In the opinion of the doctor the death was caused due to bleeding and shock. He also opined that death of Altaf could be caused on 23.07.2003 at 3.30 hrs. The post mortem report of Altaf Ahmad is Ext. Ka-2.
16.(i) P.W. 4 Dr. Chandra Shekhar Singh stated that on the same day i.e. 23.07.2003 at about 4.00 pm. also conducted postmortem of Sonu son of Altaf Ahmad and found the ante-mortem injuries on his body:
1.Incised wound 7 cm. X 3 cm. X muscle deep on the right parietal reason 3 cm. above the ear.
2.incised wound 11 cm. X 3 cm. X bone deep on the occipital reason.
3. The brain matter was coming out from the wound.
(ii). On internal examination the brain and membrane were found torn and parietal occipital of the skull was found fractured. The cause of death was excess bleeding and shock due to ante-mortem injuries. His death could be caused on 23.07.2003 at about 3.30 hrs. The postmortem report of the deceased Sonu prepared and signed by him is Ext.Ka-3.
17. From the perusal of the record, it transpires that post mortem of Smt. Agma wife of Altaf was also conducted by P.W.4 Dr. Chandra Shekher Singh, Medical Officer, Sri Ram Hospital, Ayodhya District Faizabad. It was not exhibited in the trial court but it will not cast any shadow over the merits of the case.
18.(i) P.W.5 Dr. A.P. Tiwari, Medical Officer, Jail and Police Hospital, Faizabad stated that on 23.07.2003 at 5.20 hrs. he examined Km. Salma aged about 9 years and found the following injury:
1.Chopped wound 7 cm. X 1 cm. X bone deep on head in occipital region.
(ii).This injury was kept under observation and the patient was admitted in the hospital. The injury report of Km. Salma was prepared by him and is exhibited as Ext. Ka-5. In his opinion this injury could be caused by axe on 23.07.2003 at about 3.30 hrs.
19. P.W.6 Shri Abhimanyu Dhar Dwivedi, Station Officer, GRP., Faizabad stated that on 23.07.2003 he was posted at Police Station Raunahi as Station Officer of Police Station Raunahi and in his presence the complainant Ausafulnisa lodged the FIR on the basis of which the case was registered and the investigation was started by him and he took the investigation as Investigating Officer of the case. He recorded the statements of the complainant Smt. Ausafulnisa, eye witness Adil Khan and scribe of Chik F.I.R. constable Tej Narain Singh and thereafter left for the place of occurrence alongwith the complainant, Sub Inspector Kedar Singh and other police personnel. He inspected the place of occurrence on the pointing out of the complainant and prepared site plan which is marked as Ext. Ka.6. He collected the blood stained soil, plain soil and blood stained bed sheet from the room of the deceased Sonu, Rani alias Hazarabano and injured Km. Salma and prepared recovery memo which is marked as Ext. Ka.7. The said blood stained bed sheet is marked as material Ext. 9. He took samples of blood stained soil and plain soil where deceased Agma was lying and prepared recovery memo Ext. Ka.8. He prepared the inquest report of the dead bodies and sent the same to hospital for postmortem. He also took possession of the blood stained, plain soil and blood stains from the cot upon which the deceased Altaf was lying and prepared the recovery memo Ext. Ka.9 thereafter he recorded the statements of the witnesses. The blood stained knot of the cot on which the deceased Altaf was sleeping is marked as material Ext.10. On 25.07.2003 accused-appellant Afaq was arrested. He recorded statement of accused-appellant Afaq. On 25.07.2003 on the pointing out of Afaq the axe marked as material Ext.8 which was used in the occurrence was recovered. He prepared the recovery memo of the axe marked as material Ext.8 which is marked as Ext. Ka.12. On 02.08.2003 he recorded the statement of injured Km. Salma daughter of Altaf. On 09.08.2003 he obtained police remand of accused-appellant Akhlaq and on the pointing out of accused appellant Akhlaq the axe exhibited marked as material Ext.1 which was used in occurrence, was recovered. The said axe marked as material Ext.1 was sealed and recovery memo (Ext. Ka.10) was prepared. He also prepared site plan (Ext.Ka.11) of the place from where the axe marked as material Ext.1 was recovered. He further stated that the blood stained soils and plain soils which was taken from the place of occurrence are marked as materials Ext.2 to Ext.7. Thereafter he was transferred from the police station Raunahi and the investigation was handed over to the Shri Azad Kesri Sub Inspector (P.W.8).
20. P.W.7 Dr. D.P. Mishra, Superintendent, Balrampur Hospital, Lucknow deposed that he was posted as Physician in Balrampur Hospital on 23.07.2003. On that day at 4.30 pm. he conducted the postmortem of Km. Hazarabano daughter of Altaf resident of Nimaicha Salhepur, Police Station Raunahi District Faizabad whose dead body was sent by the Station Officer of Police Station Chowk District Lucknow, he found the following ante-mortem injury:
1.Crushed injury over left side of scalp 5 cm. from left ear. Skull bone was fractured, left temporal bone fractured and brain matter was opened, clotted blood was present.
21. The post mortem report of Km. Hazarabano was prepared by him and is exhibited as Ext Ka-13. In his opinion the said injury could be caused by axe and thereby death due to shocked due to head injury.
22.(i) P.W.8 Sri Azad Kesri Station Officer, Police Station Cantt District Faizabad deposed that on his transfer to police station Raunahi, his predecessor Investigating Officer Sri Abhumanyu Dhar Dwivedi Station Officer Police Station Raunahi District Faizabad handed over the investigation of this case to him. He met the village Pradhan Shafiq Ahmad and area Lekhpal Sri Ram Navel Yadav in order to ascertain about the property of accused and deceased and recorded their statements. He also deposed that he came to know that except the ancestral property there is no other land in favour of accused/appellants Akhlaq and Afaq, as per the revenue record. He recorded the statement of Gram Panchayat Adhikari to ascertain about the properly of accused-appellants. He also recorded the statement of inquest witness Sri Ran Vijay Singh on 05.10.2003 and after completing the investigation he submitted chargesheet Ext. Ka-14, against the accused Afaq, Akhlaq, Smt. Nagina and Smt. Nazma under Sections 302,307,324 and 120 (b) IPC and Section 3 (1) of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986. The gang chart was prepared by Sri Abhimanu Dhar Dwivedi and was approved by the then District Magistrate. He also deposed that he was acquainted with the hand writing and signature of Sri Abhimanyu Dhar Dwivedi. The gang chart is marked as Ext Ka-15. The FIR of this case was written by constable Moharir Shri Tej Narain Singh and the case was registered by constable Baij Nath Shukla. He further deposed that he was well acquainted with the handwriting and signatures of constable Moharir Shri Tej Narain Singh and Constable Shri Baij Nath Shukla and proved Chik F.I.R. and General-diary which are Exhibited as Ext Ka-16 and Ext. Ka-17 respectively.
(ii). In the cross examination, he said that he did not record the statement of those witnesses whose statement had already been recorded by the earlier Investigating Officer. He denied the suggestion that he has concocted the entire prosecution case in order to falsely implicate the accused on trumped up charges.
23.(i) Learned counsel for the appellant Akhlaq, Sri Abdul Rafey Siddiqui, Advocate and Sri Ashok Pandey, Amicus Curiae, appearing for the appellant Afaq contended that the evidence produced in this case is not sufficient and convincing to warrant the conviction of the appellants. They also contended that the evidence adduced by the prosecution cannot be accepted as they, besides being interested witnesses, have given a concocted version which casts severe doubts about truthfulness of the prosecution case. It was submitted that the prosecution failed to make out any case against the accused appellants. To prop up their submissions, they argued that the first information report is anti-timed; that the evidence adduced by the prosecution is conflicting and self contradictory and therefore, they further argued that the same cannot be said to be reliable for basing the conviction of the appellants. They also referred to the evidence of P.W.3 Salma and submitted that she being child witness was tutored and she gave the evidence on dotted line and by this reckoning he argued that her evidence cannot be placed any credence for convicting the appellants. The learned counsel further submitted that the motive is too feeble. It is also submitted that the learned trial court rendered the impugned judgment merely on surmises and conjectures resulting in gross miscarriage of justice in convicting the appellants. It was further submitted that the appellant Akhlaq was blind person and was unable to see and recognize anybody and his involvement in the commission of offence is highly doubtful. They put weight to the arguments advanced and further argued that the case does not come within the ambit of the rarest of rare cases in which the death sentence can be awarded and which would warrant the penalty of death sentence, if the prosecution is believed to be true. The accused are innocent and have not committed any crime and they deserve to be acquitted. Summing up arguments, the learned counsels also contended that there is no reliable evidence brought on record to connect the appellants with the crime and therefore, the appellants could not be convicted for offences punishable under the aforesaid sections.
(ii). Per contra, learned A.G.A. appearing on behalf of the State, has canvassed for correctness of the view taken by the learned trial judge and argued that it is a case in which four persons were brutally murdered and one person was seriously injured. He also canvassed that it assumes proportion that the murder has been committed by the appellants/brothers of the deceased Altaf who did not show any mercy as the accused-appellants were blinded by greed for a small piece of land and by this reckoning, they do not deserve any leniency or mercy by this Court. It has been further argued by the learned A.G.A. that the presence of three eye witnesses cannot be impeached as that testimony has remained unshaken. Besides there is no conflict or contradiction between the prosecution case and ocular testimony. He further submitted that the evidence on record has proved the prosecution case beyond any shadow of doubt and the conviction and sentence awarded by the learned trial court does not require any interference by this Court.
24. (i) In connection with the first submission that the witnesses should not be relied upon as they related to the deceased and also that they were partisan and interested witness and further they were imbued with powerful motive to falsely implicate the appellants in the case. First of all we shall deal with the contention regarding interestedness of the witnesses.
(ii) It is not a safe rule to reject merely on the basis of relationship of the witness with the deceased. In such a situation it only puts the court with the solemn duty to make a deeper probe and scrutinize the evidence with more than ordinary care.
(iii) It is well settled that the relationship is not a factor to affect credibility of a witness. It is more often that a relation would not conceal let off the hook to the real culprit. It must be observed here that if plea of false implication is made, foundation has to be laid to prop it up. It brooks no dispute that the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. The learned trial court has placed implicit reliance on the evidence of P.W.2 Salma daughter of the deceased Altaf. The trial court also rejected the contention that P.W.1 Adil, brother-in-law of Agma, was imbued with powerful motive on account of previous enmity. P.W.2 Salma deposed on oath that on the fateful night she was sleeping with her mother, father, Sister and brother, that at about 3.00 hrs. Akhlaq and Afaq (appellants) had asaulted her father, mother, sister and brother with their axes. She was subjected to gruelling cross examination but nothing shaking the foundation of case or impeaching the testimony of the witnesses could be elicited. P.W.1 Adil deposed that in the intervening night on 22/23.07.2003 while Altaf was asleep outside the house, he, his mother-in-law, his sister-in-law and her children were asleep in the eastern room, in the court yard and in the western room of the house respectively. He further deposed that at about 3.00 hrs., he heard the screams of Agma wife of Altaf followed by the screams of her children and immediately, he rushed outside the room and saw that accused appellants Akhlaq and Afaq were mercilessly inflicting blows by means of axe on Altaf, his wife Agma and her three children. P.W.1 Adil was subjected to gruelling cross examination but nothing shaking the foundation of prosecution case could be elicited, which may impeach the testimonies or the presence of this witness on the spot. This witness has supported the prosecution case in all its pros and cons. Likewise P.W. 3 Smt. Ausafulnisha also supported the prosecution case in all its ramification. P.W.3 Smt. Ausafulnisa deposed that on the fateful night at about 3.30 hrs., she woke up on hearing children groaning and weeping and saw that Afaq and Akhlaq were assaulting Sonu, Hazarabano, Salma, Altaf and Agma with axe. She screamed for help upon which Nasim and other persons of the village came on the spot and upon being challenged, the accused appellants Akhlaq and Afaq fled away from the seen of occurrence. P.W.3 Smt. Ausafulnisa was also subjected to gruelling cross examination but nothing shaking the foundation of prosecution case could be elicited. From a close scrutiny of the statements of the above witnesses it clearly transpires that their presence at the time of place of occurrence cannot be denied and further that the evidence of these witnesses was cogent and convincing. In connection with the above, we feel called to notice certain decisions on the point.
25. In the case of Dalip Singh and Ors. v. The State of Punjab reported in AIR 1953 SC 364, the Hon'ble Apex Court has observed in paragraphs 25 and 26 of the judgment as under:
" 25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eye-witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in 'Rameshwar v. State of Rajasthan' (AIR 1952 SC 54 at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel."
26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.
26. In the case of Masalti and Ors. v. State of U.P. reported in AIR 1965 SC 202, the Supreme Court has observed in paragraph 14 of the judgment as under :
"....There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not evidence strikes the Court as genuine whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
28. In the case of Abdul Rashid Abdul Rahiman Patel and others Vs. State of Maharashtra reported in (2007) 9 SCC 1, Hon'ble the Apex Court has observed in paragraph 17 of the judgment as under:
"......It is well settled that in a criminal trial merely because a witness is interested his evidence cannot be discarded if the same is otherwise found to be credible. In the present case, as we have come to the conclusion that the evidence of these witnesses is consistent and corroborated by medical evidence it is not possible to discard the same on the ground that they were interested person."
29. In the case of Namdeo Vs. State of Maharashtra reported in (2007) 14 SCC 150, Hon'ble the Apex Court has observed in paragraph 38 of the judgment as under:
"38.....From the above case law, it is clear that a close relative cannot be characterized as an "interested" witness. He is a "natural" witness. His evidence, however, must be scrutinised carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the "sole" testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one".
30. The above position was highlighted in the cases of Harbans Kaur and another Vs. State of Haryana reported in (2005) 9 SCC 195, Bhimappa Chandappa Hosamani Vs. State of Karnataka reported in (2006) 11 SCC 323, Kulesh Mondal Vs. State of W.B. reported in (2007) 8 SCC 578 and Kalegura Padma Rao and another Vs. State of Andhra Pradesh Represented by the Public Prosecutor reported in (2007) 12 SCC 48.
31. All the witnesses of fact namely P.W.1 Adil, P.W.2 Salma and P.W.3 Ausafulnisa have categorically supported the prosecution case which is totally reliable, cogent convincing and free from contradiction. Therefore, in view of the law laid down by the Apex Court in the above mentioned decisions, we are of the considered view that there arises no reason to disbelieve them.
32. The next argument advanced across the bar revolves round the motive. It is submitted that the motive alleged was not so powerful as to impel appellants for commission of murder of his own brother.
33. Before dealing with this aspect, we are of the considered view that the question of motive is not material where there is a direct evidence of the acts of the accused and the acts themselves are sufficient to disclose the intention of the accused persons. Motive is the ultimate end which a person hopes to achieve whereas intention is the immediate effect of his act. Moreover motive is not a Sine-quo-non to prove the case of the prosecution. In deciding the question of intention of causing death, the nature of weapon used, the part of the body on which the blow was given, the force and number of blows are all factors from which an inference as to the intention can, as a fact, be drawn. Here in the instant case from a perusal of the record and also the testimonies on record, it is amply proved that by the time the incident had occurred, the dispute over landed property had aggravated between the deceased Altaf and the appellants. The factum of dispute between the parties relating to landed property has not been emphatically denied by the defence. The learned counsel has tried to soft-peddle the dispute stating that it was over a small piece of land. We have also perused the reasoning given by the court below as regards motive and in our considered view, the motive was too strong for commission of the offence. The argument that the dispute was over a small piece of land, cannot be stretched to a point as to hold that the motive was too feeble to impell the appellant to commit the crime.
34. The next argument advanced by the learned counsel for the appellants is that appellant-Akhlaq was blind person.
35. Defence has to prove his defence to the extent of preponderance of probability where as prosecution has to prove his case to the hilt of all reasonable doubts. P.W.1 Adil in his cross examination specifically denied the suggestion that the accused appellant Akhlaq was blind person. On the other hand, the accused-appellant Akhlaq has not produced any convincing evidence in defence to prove that he was blind person. The appellant Akhlaq even to the extent of preponderance of probability failed to prove that he was blind person at the time of occurrence.
36. The next argument which was emphatically canvased is that P.W. 2 Salma being child witness, implicit reliance cannot be place upon her testimony. In connection with the above submission, we have to glance back into the evidence of P.W. 2 Salma. It would appear from the record that at the time of incident the witness was aged about 9 years. She stated that on the day of occurrence she was sleeping with her mother, father, sister and brother and at about 3.00 hrs., Akhlaq and Afaq had assaulted her, her father, mother, sister and brother with axe. She further deposed that she had fallen unconscious after sustaining injuries. This witness too was subjected to grueling cross examination. In her evidence, she had denied that she was tutored. The mental agility of this witness was tested by the trial court by asking her to tell the time as indicated by the wall clock hanging in the court. She recognized Mohd. Akhlaq and Afaq who were present in the court. She also stated that she had often seen her father and Afaq quarreling. She also stated that at the time when incident took place, her maternal grand mother was present at the scene.
37. The evidence of this witness is concise and precise and it is specific and vivid. It is neither embellished nor embroidered. It is the evidence of a child who has gone through the unusual and cruel incidence. It is pathetic that the girl of a tender age has seen her father, mother and others being killed.
38. The Indian Evidence Act does not prescribe any particular age as a determinative factor to treat a witness to be immune from tutoring. Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions because of tender years, extreme old age, disease whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. It is settled position in law that the evidence of a child witness is not required to be rejected per se but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction based thereon.
39. In Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341] it was held as follows: (SCC p. 343, para 5):
"5......A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored...."
40. The above position was highlighted in the cases of Ratansingh Dalsukhbhai Nayak v. State of Gujarat reported in (2004) 1 SCC 64, Nivrutti Pandurang Kokate Vs. State of Maharashtra reported in (2008) 12 SCC 565, Kalawati W/o. Devaji Dhote Vs. State of Maharashtra reported in (2009) 4 SCC 37, Rameshbhai Chandubhai Rathod Vs. State of Gujarat reported in (2009) 5 SCC 740 and State of Karnataka Vs. Shantappa Madivalappa Galapuji and others reported in (2009) 12 SCC 731.
41. The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. In view of the law laid down by the Apex Court in the above mentioned decisions, we are of the considered view that looking at from any angle the judgment of the trial court on this point does not suffer from any infirmity to warrant interference.
42. The next argument advanced by the learned counsel for the appellants is that the first information report is anti-timed.
43. A bare perusal of the first information report would reveal that the incident took place on 23.07.2003 at 3.30 hrs. in the morning and the first information report was lodged at 6.45 hrs. which is prompt and there is no inordinate delay for lodging the report. We have given our anxious consideration on the point and from a close scrutiny of the entire evidence on record it clearly transpires that the first information report is not anti-timed.
44. The next argument revolves round the submission that it was not possible for two persons to have committed the murders that too in the presence of number of witnesses.
45.It has come in the evidence that deceased Altaf was asleep outside at the door of the house, while Agma deceased was asleep in the court yard. The other deceased persons were asleep in the room situated on the western side of the house. It has again come in the evidence of the witnesses that they woke up on hearing the groans of the deceased and injured. All the deceased and injured were asleep at separate places. Most of the injuries sustained by the deceased/injured are on the neck and head as would be ascertainable from the post mortem reports. A person who is fast asleep if attacked would not react so quickly as a person who is quite awake and is attacked. In this circumstance, the sound of groaning or crying gets subdued. From the facts on record, it would transpire that operation of attacking with axes were carried with utmost precision and quickness and in such circumstances, it would leave little room for the deceased to have reacted or cried for help or to ward off the blows particularly when they were fast asleep.
46.In view of the facts and circumstances of the case, we are of the considered view that the entire operation of attacking with excess by the accused-appellants Akhlaq and Afaq could well be conducted by the accused-appellants.
47. The next subsidiary argument advanced across the bar is that the investigation was not properly conducted and the investigation conducted was shoddy and left many questions unanswered and further that the investigating officer etc were not cross examined and therefore, it was a fit case for remand. All these aspects have been dealt with at prolix length by the court below and we do not propose to burden this judgment by reiterating all those details all over again. It would suffice to say that the trial court has given cogent reasons to dispel the contentions that the investigation was shoddy. We feel called to notice certain decisions on the point.
48. In the case of Rampal Pithwa Rahidas v. State of Maharashtra reported in 1994 Supp (2)SCC 73 a somewhat similar situation occurred where the Apex Court reiterated the duty of the investigating agency to act honestly and fairly. In that case a communication-cum-application by an approver, before he was made approver wherein he had claimed the bail on the ground that he knew nothing about the offence and he was unnecessarily being incarcerated, was not confronted to him at the time of trial. The Court took the view that though the witness was not confronted with that statement and in a strict sense it was not brought before the Court, yet the same communication could be looked into by the Courts.
The Apex Court observed in paragraph 37 as under:
"The quality of a nation's civilization," it is said, "can be largely measured by the methods it uses in the enforcement of criminal law" and going by the manner in which the investigating agency acted in this case causes concern to us. In every civilized society the police force is invested with the powers of investigation of the crime to secure punishment for the criminal and it is in the interest of the society that the investigating agency must act honestly and fairly and not resort to fabricating false evidence or creating false clues only with a view to secure conviction because such acts shake the confidence of the common man not only in the investigating agency but in the ultimate analysis in the system of dispensation of criminal justice. Let no guilty man go unpunished but let the end not justify the means! The Courts must remain ever alive to this truism. Proper results must be obtained by recourse to proper means -otherwise it would be an invitation to anarchy."
49. In the case of Ram Bihari Yadav Vs. State of Bihar reported in (1998) 4 SCC 517, it was held that if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law- enforcing agency but also in the administration of justice.
50. In the case of Paras Yadav Vs. State of Bihar reported in (1999) 2 SCC 126, it was held by the Hon'ble the Supreme Court that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not, the contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.
51. In the case of Amar Singh. Vs. Balwinder Singh and others reported in (2003) 2 SCC 518, the Apex Court has held as under:
"....In cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect."
52. In the case of State of M.P. Vs. Mansingh reported in (2003) 10 SCC 414, the Apex Court has observed in paragraph 12 of the judgment as under:
"12. Even if it is accepted that there were deficiencies in the investigation as pointed out by the High Court, that cannot be a ground to discard the prosecution version which is authentic, credible and cogent......."
53. In the case of Dhanaj Singh alias Shera and others Vs. State of Punjab reported in (2004) 3 SCC 654, the Apex Court has observed in paragraphs 5 and 8 of the judgment as under:
"5. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.
"8. The stand of the appellants relates esentially to acceptability of evidence. Even if the investigation is defective, in view of the legal principles set out above, that pales into insignificance when ocular testimony is found credible and cogent...."
54. In the case of Zahira Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors., reported in (2004) 4 SCC 158, Hon'ble the Apex Court has observed in paragraphs 43-49 of the judgment as under:
"43. The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.
44.The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e. (i) giving a discretion to the Court to examine the witness at any stage and (ii) the mandatory portion which compels the Courts to examine a witness if his evidence appears to be essential to the just decision of the Court. Though the discretion given to the Court is very wide, the very width requires a corresponding caution. In Mohan Lal v. Union of India,this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the word such as, "any Court" "at any stage", or "any enquiry or trial or other proceedings" "any person" and "any such person" clearly spells out that the Section has expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow any discretion but obligates and binds the Court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case -'essential', to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the Section is to enable the court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the Court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to upheld the truth.
45.It is not that in every case where the witness who had given evidence before Court wants to change his mind and is prepared to speak differently, that the Court concerned should readily accede to such request by lending its assistance. If the witness who deposed one way earlier comes before the appellate Court with a prayer that he is prepared to give evidence which is materially different from what he has given earlier at the trial with the reasons for the earlier lapse, the Court can consider the genuineness of the prayer in the context as to whether the party concerned had a fair opportunity to speak the truth earlier and in an appropriate case accept it. It is not that the power is to be exercised in a routine manner, but being an exception to the ordinary rule of disposal of appeal on the basis of records received in exceptional cases or extraordinary situation the Court can neither feel powerless nor abdicate its duty to arrive at the truth and satisfy the ends of justice. The Court can certainly be guided by the metaphor, separate the grain from the chaff, and in a case which has telltale imprint of reasonableness and genuineness in the prayer, the same has to be accepted, at least to consider the worth, credibility and the acceptability of the same on merits of the material sought to be brought in.
46. Ultimately, as noted above, ad nauseam the duty of the Court is to arrive at the truth and subserve the ends of justice. Section 311 of the Code does not confer any party any right to examine, cross-examine and re-examine any witness. This is a power given to the Court not to be merely exercised at the bidding of any one party/person but the powers conferred and discretion vested are to prevent any irretrievable or immeasurable damage to the cause of society, public interest and miscarriage of justice. Recourse may be had by Courts to power under this section only for the purpose of discovering relevant facts or obtaining proper proof of such facts as are necessary to arrive at a justice decision in the case.
47.Section 391 of the Code is another salutary provision which clothes the Courts with the power of effectively decide an appeal. Though Section 386 envisages the normal and ordinary manner and method of disposal of an appeal, yet it does not and cannot be said to exhaustively enumerate the modes by which alone the Court can deal with an appeal. Section 391 is one such exception to the ordinary rule and if the appellate Court considers additional evidence to be necessary, the provisions in Section 386 and Section 391 have to be harmoniously considered to enable the appeal to be considered and disposed of also in the light of the additional evidence as well. For this purpose it is open to the appellate Court to call for further evidence before the appeal is disposed of. The appellate Court can direct the taking up of further evidence in support of the prosecution; a fortiori it is open to the court to direct that the accused persons may also be given a chance of adducing further evidence. Section 391 is in the nature of an exception to the general rule and the powers under it must also be exercised with great care, specially on behalf of the prosecution lest the admission of additional evidence for the prosecution operates in a manner prejudicial to the defence of the accused. The primary object of Section 391 is the prevention of guilty man's escape through some careless or ignorant proceedings before a Court or vindication of an innocent person wrongfully accused. Where the court through some carelessness or ignorance has omitted to record the circumstances essential to elucidation of truth, the exercise of powers under Section 391 is desirable.
48 The legislature intent in enacting Section 391 appears to be the empowerment of the appellate court to see that justice is done between the prosecutor and the persons prosecuted and if the appellate Court finds that certain evidence is necessary in order to enable it to give a correct and proper findings, it would be justified in taking action under Section 391.
49.There is no restriction in the wording of Section 391 either as to the nature of the evidence or that it is to be taken for the prosecution only or that the provisions of the Section are only to be invoked when formal proof for the prosecution is necessary. If the appellate Court thinks that it is necessary in the interest of justice to take additional evidence it shall do so. There is nothing in the provision limiting it to cases where there has been merely some formal defect. The matter is one of the discretion of the appellate Court. As re-iterated supra the ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the public prosecutor is also entitled to justice. The cause of the community deserves equal treatment at the hands of the Court in the discharge of its judicial functions."
55. In the case of Major Singh and another Vs. State of Punjab reported in (2006) 10 SCC 499, the Apex Court has observed in Paragraphs 11 and 12 of the judgment as under :
11.Even assuming that we accept the defence version that Chanan Singh was not a witness to the incident, we see no reason to disregard or disbelieve the evidence of Lakhbir Singh who was an eyewitness to the incident. Lakhbir Singh is a natural witness and he has clearly deposed about the incident in question in detail. We see no reason to disbelieve his evidence.
12.Learned counsel for the appellant has referred to certain minor defects and minor discrepancies in the prosecution case. It is well settled that minor discrepancies and minor defects in the prosecution case are not a good ground for rejecting the entire prosecution case.
56. In the case of Mahendra Singh Vs. State of M.P. reported in (2007) 9 SCC 796, the Apex Court has observed in paragraph 12 of the judgment as under:
"12......but it is also well-known that deficiency in investigation shall not stand in the way of the court in arriving at a finding of guilt if it is otherwise found to have been proved."
57. In the case of Sidhartha Vashisht alias Manu Sharma Vs. State (NCT OF DELHI reported in (2010) 6 SCC 1. The supreme Court has observed in paragraphs 197 and 232 of the judgment as under:
"197. In the Indian Criminal jurisprudence, the accused is placed in a somewhat advantageous position than under different jurisprudence of some of the countries in the world. The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance to the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21of the Constitution of India."
"232. A criminal trial is not an enquiry into the conduct of an accused for any purpose other than to determine whether he is guilty of the offence charged. In this connection, that piece of conduct can be held to be incriminatory which has no reasonable explanation except on the hypothesis that he is guilty. Conduct which destroys the presumption of innocence can alone be considered as material. In this regard, it is useful to refer Anant Chaintaman Lagu vs. State of Bombay AIR 1960 SC 500:- paras 68 & 76 "68.Circumstantial evidence in this context means a comBeenation of facts creating a network through which there is no escape for the accused, because the facts taken as a whole do not admit of any inference but of his guilt.
76.....This conduct of the accused was so knit together as to make a network of circumstances pointing only to his guilt......his methods was his own undoing; because even the long arm of coincidence could not explain the multitude of circumstances against him, and they destroyed the presumption of innocence with which law clothed him."
58. In view of the facts and circumstances of the case and the guidelines given by the Apex Court in the above mentioned cases, we are of the view that even if it is accepted that there were some deficiencies in the investigation, that cannot be a ground to discard the prosecution version which is authentic, credible and cogent.
59. Lastly, the question that arises for serious consideration is whether imposition of death sentence to the appellants in the facts and circumstances of the case is justified?
60. Under the old Code of Criminal Procedure (Act V of 1898) ample discretion was given to the courts to pass death sentence as a general proposition and the alternative sentence of life term could be awarded in exceptional circumstances, that too after advancing special reasons for making this departure from the general rule. The new Code of Criminal Procedure, 1973 has entirely reversed the rule. A sentence for imprisonment for life is now the rule and capital sentence is an exception. It has also been made obligatory on the courts to record special reasons if ultimately death sentence is to be awarded. A Constitutional Bench of the Supreme Court in the case of Bachan Singh Vs. State of Punjab reported in (1980) 2 SCC 684, while upholding the constitutional validity of the death sentence voiced that as a legal principle death sentence is still awardable but only in rarest of rare cases when the alternative option of lesser sentence is unquestionably foreclosed.
61. In the case of Ediga Anamma v. State of U.P. reported in 1974 4 SCC 443, the Supreme Court in paragraphs 21 and 25- 26 of the judgment observed as under:
"21. It is obvious that the disturbed conscience of the State on the vexed question of legal threat to life by way of death sentence has sought to express itself legislatively, the stream of tendency being towards cautious, partial abolition and a retreat from total retention."
"25. We assume that a better world is one without legal knifing of life, given propitious social changes. Even so, to sublimate savagery in individual or society is a long experiment in spiritual chemistry where moral values, socio-economic conditions and legislative judgment have a role. Judicial activism can only be a signpost, a weather vane no more. We think the penal direction in this jurisprudential journey points to life prison normally, as against guillotine, gas chamber, electric chair, firing squad or hangman's rope. ''Thou shalt not kill' is a slow commandment in law as in life, addressed to citizens as well as to States, in peace as in war. We make this survey to justify our general preference where Section 302 keeps two options open and the question is of great moment."
26........."A legal policy on life or death cannot be left for ad hoc mood or individual predilection and so we have sought to objectify to the extent possible, abandoning retributive ruthlessness, amending the deterrent creed and accepting the trend against the extreme and irrevocable penalty of putting out life."
62. In the case of Rajendra Prasad Vs. State of U.P. reported in (1979) 3 SCC 646, the Supreme Court has observed in paragraphs 68,69 and 71 of the judgment as under:
"68. These illustrations show that angry or scary irrationality has no place in awarding death sentence because 'reasonableness' and fairness are the touchstone of the constitutionality of capital penalty. Thus, we hold that only in these very limited circumstances can the court award the extreme penalty. The terrible nature of the murder should not frenzy the court into necessary 'capital' penalty, for its pertinence is only to the extent it helps to decide whether the prisoner, if released after a few years in a penitentiary, will reasonably be prone to continued killing. If life-long imprisonment will prevent further killing, he may be allowed to live with the limited fundamental rights allowed in a prison setting."
"69.Even in extreme cases, one has to judge carefully whether the social circumstances, personal remorse, the excruciation of long pendency of the death sentence, with the prisoner languishing in nearsolitary suffering all the time, are not adequate infliction, so as to make capital sentence too cruel and arbitrary and agonising not to violate Art. 14. Our penal pharmacopoeia must provide for the extreme remedy of extinction of the whole personality only in socially critical situations. This is spiritual-social justice."
"71. The Indian Penal Code fabricated in the imperial foundry well over a century ago has not received anything but cursory parliamentary attention in the light of the higher values of the National Charter which is a testament of social justice. Our Constitution respects the dignity and, therefore, the divinity of the individual and preservation of life, of everyone's life. So the Court must permeate the Penal Code with exalted and expanded meaning to keep pace with constitutional values and the increasing enlightenment of informed public opinion. A nineteenth century text, when applied to twentieth century conditions, cannot be construed by signals from the grave. So, while courts cannot innovate beyond the law the law cannot be viewed as cavemen's pieces. The penological winds of change, reflected in juristic debates, bilkls for abolition of death penalty in Parliament and the increasing use of clemency and commutation by the highest executive, must affect the living law of statutory application."
63. In the case of Bachan Singh Vs. State of Punjab and others reported in (1980) 2 SCC 684, the Supreme Court has observed in paragraph 209 of the judgment as under :
"209.There are numerous other circumstances justifying the passing of the lighter sentence, as there are countervailing circumstances of aggravation. "We cannot obviously feedinto a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society." Nonetheless, it cannot be over emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in section 354 (3). Judges should never be blood-thirsty. Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, show that in the past, Courts have inflicted the extreme penalty with extreme infrequency-a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that Courts, aided by the broad illustrative guidelines indicated by the Supreme Court, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in section 354 (3), viz., that for persons convicted of murder life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought Lot to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."
64. In the case of Machchi Singh and others v. State of Punjab reported in (1983) 3 SCC 470 the Supreme Court expanded the "rarest of rare" formulation beyond the aggravating factors listed in Bachan Singh (supra) to cases where the "collective conscience" of a community may be shocked. But the Bench in this case underlined that full weightage must be accorded to the mitigating circumstances in a case and a just balance had to be struck between aggravating and mitigating circumstances. The Hon'ble Supreme Court has observed in paragraph 38 of the judgment as under :
"38.In this background the guidelines indicated in Bachan Singh case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh case
(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 alongwith 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 just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised."
65. In the case of Ravindra Trimbak Chouthmal Vs. State of Maharashtra reported in (1996) 4 SCC 148, the Apex Court has observed in Paragraph 10 of the judgment as under:
"10.We have given considered thought to the question and we have not been able to place the case in that category which could be regarded as the "rarest of the rare" type......... To halt the rising graph, we, at one point, thought to maintain the sentence; but we entertain doubt about the deterrent effect of adeath penalty. We, therefore, resist ourselves from upholding the death sentence, much though we would have desired annihilation of a despicable character like the appellant before us. We, therefore character like the appellant before us. We, therefore, commute the sentence of death to one of R.I. for life imprisonment."
66. In the case of Om Prakash v. State of Haryana, [(1999) 3 SCC 19], the Hon'ble Apex Court, deliberated on the apparent tension between responding to "cry of the society" and meeting the Bachan Singh (supra) dictum of balancing the "mitigating and aggravating circumstances", the Apex Court was of the view that the sentencing court is bound by Bachan Singh (supra) and not in specific terms to the incoherent and fluid responses of society as observed in para 7 of the judgment as under:
7.It is true that court must respond to the cry of the society and to settle what would be a deterrent punishment for an abominable crime. It is equally true that a large number of criminals go unpunished thereby increasing criminals in the society and law losing its deterrent effect. It is also a truism as observed in the case of State of M.P. v.Shyamsunder Trivedi [SCC at p.273] that the exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact situation and the peculiar circumstances of a given case often results in miscarriage of justice and makes the justice delivery system a suspect; in the ultimate analysis, the society suffers and a criminal gets encouraged. Sometimes it is stated that only rights of the criminals are kept in mind, the victims are forgotten. Despite this it should be kept in mind that while imposing the rarest of rare punishment, i.e., death penalty, the court must balance the mitigating and aggravating circumstances of the crime and it would depend upon particular and peculiar facts and circumstances of each case."
67. In the case of Jayawant Dattatraya Suryarao Vs. State of Maharashtra reported in (2001) 10 SCC 109, Hon'ble the Apex Court has observed in paragraphs 65 and 69 of the judgment as under:
"65. In our view, there is force in the aforesaid submission. Accused 6, who has confessed his involvement in the crime including the crimes committed by him previously, has specifically stated that he asked Brijesh Singh to go back from the hospital without firing. He has not confessed that he has fired any shot during the incident. In this set of circumstances, even though we hold that it was an act of terrorism committed by the accused, this would not be a fit case for imposing death sentence. However, considering the confessional statement as a whole coupled with the other evidence and the terror created by the accused, we confirm the conviction but modify the sentence from death penalty to imprisonment for life -- till rest of life."
"69. In this case also, considering the heinous act of terrorism and brutal murder of two police constables who were on duty to guard Shailesh Haldankar, even though we hold this would not be a fit case for imposing death sentence, we direct that accused will not be entitled to any commutation or pre-mature release under Section 433-A of Criminal Procedure Code, Prisoners Act, Jail Manual or any other statute and the rules made for the purpose of commutation and remissions.
68. In the case of Devender Pal Singh v. State of N.C.T. Of Delhi 2002 (5) SCC 234, Hon'ble the Apex Court, expanded the formulation for imposing extreme penalty. The guidelines may be abstracted below as under:[SCC p.271, para 58] "........(1.) 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.
(2) When the murder is committed for a motive which evinces total depravity and meanness e.g. Murder by hired assassin for money or reward, or cold blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.
(3) 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; or in cases of bride burning or dowry deaths or when murder is committed in order to re-marry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
(4) When the crime is enormous in proportion. For instance when mutiple murders, say of all or almost all the members of a family or alarge number of persons or a particular caste, community, or locality are committed.
(5) When the victim of murder is an innocent child or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community."
69. In the case of Vashram Narshibhai Rajpara v. State of Gujarat reported in (2002) 9 SCC 168, the Apex Court in paragraph 9 of the judgment held as under :
"9. As for the quantum of sentence, we have given our careful consideration in the light of the submissions of the counsel on either side. As to what category a particular case would fall depends, invariably on varying facts of each case and no absolute rule for invariable application or yardsticks as a ready reckoner can be formulated. In Panchhi & Others vs State of U.P. [1998(7) SCC 177] it has been observed that the brutality of the manner in which the murder was perpetrated may not be the sole ground for judging whether the case is one of the "rarest of rare cases", as indicated in Bachan Singh vs State of Punjab [1980 (2) SCC 684] and that every murder being per se brutal, the distinguishing factors should really be the mitigating or aggravating features surrounding the murder. The intensity of bitterness, which prevailed, and the escalation of simmering thoughts into a thirst for revenge or retaliation were held to be also a relevant factor. In Om Prakash vs State of Haryana [1999 (3) SCC 19] dealing with a case of murder of seven persons, some totally innocent too, over a dispute relating to a small house in a village, this court observed that the particular and peculiar facts and circumstances of each case should be properly balanced and noticing the mentally depressed condition of the accused, held the case to be not one of those rarest of rare cases where the lesser sentence of life imprisonment could not be said to be adequate, despite the fact that the accused was guilty of committing a gruesome act of a premeditated and well thought out murder. While striking a contrast with such of those cases where the extreme punishment of death is warranted, it was also observed that the one dealt with therein was neither a crime committed because of lust for wealth or women (neither for money such as extortion, dacoity or robbery nor even for lust and rape) or an anti-social act involving kidnapping and trafficking in minor girls or of an anti- social element dealing in dangerous drugs which affects the entire moral fibre of the society and kills a number of persons nor was committed for power or political ambitions or as part of organized criminal activities. No doubt those cannot be said to be exhaustive of such category but merely enumerative of the criminal intent of the worst type, destructive of the basic orderliness fundamental to the very existence of a welfare oriented society.
70. In the case of Ram Pal Vs. State of U.P. reported in (2003) 7 SCC 141, the Apex Court has observed in paragraphs 8 and 9 of the judgment as under:
"8. Bearing in mind the above broad guidelines laid down by this Court in the case of Bachan Singh (supra), if we consider the facts of the case we notice the fact that the appellant was a party to an incident in which 21 people including young children were murdered by gun shot injuries or by burning them in latched houses itself could be considered as aggravating circumstances to consider awarding of death sentence. According to the judgment in Bachan Singh's case (supra), then we will have to weigh the same with any mitigating circumstances that may be available on the facts of this case. While doing the said exercise of searching for mitigating circumstances in the present case, we find the incident in question was sequel to the murder of Bhagwati a close relative of the appellant and other principal accused, which was suspected to have been committed by the members of the victims family. Prior to that the victims family was accused of having committed the murder of 2 of the close relatives of the appellant's family for which some of the members of the victims family were being prosecuted. On facts and circumstances of this case, we think this circumstance can be treated as a circumstance which amounts to a provocation from the victims side. We also notice that the role played by the appellant is somewhat similar to the role played by the other accused persons who have been given lesser sentence while the appellant has been awarded death sentence that too with the aid of Section 149 IPC therefore, a question arises why this appellant should not be considered at par with those accused for the purpose of awarding the sentence. We also notice from the argument of the learned counsel which is supported by material on record, that the specific overt act attributed to the appellant that he climbed the house of the informant and threatened to shoot the victims if they came out of their houses, while the other accused latched and set the houses on fire seems to be an afterthought not having been told to the investigating officer by the witnesses when their statements were recorded by him. We also notice that the appellant was not treated by the prosecution itself as the leader of the gang but was considered to be one amongst other accused who took part in the incident. The fact that accused has spent nearly 17 years in custody after the incident in question can also be treated as a mitigating circumstance while considering the question of sentence."
"9. The above noted circumstances which we consider as mitigating circumstances, in our opinion, outweigh the aggravating circumstances as found by the courts below. In the said view of the matter, we think it appropriate to allow this appeal and in substitution of sentence of death awarded to the appellant, we sentence the appellant under Section 302 read with Section 149 IPC to undergo imprisonment for life. The said sentence shall run concurrently with the substantive sentence imposed by the trial court on other counts."
71. In the case of Sahdeo Vs. State of U.P. reported in (2004) 10 SCC 682, the Apex Court has observed in paragraph 9 of the judgment as under:
"9. As regards the sentence of death imposed on five accused persons by the sessions court, which was confirmed by the appellate court, the counsel for the appellants, Shri Sushil Kumar submitted that in the absence of clear and convincing evidence regarding the complicity of the accused, these appellants could not be visited with the death penalty, while the counsel for the State submitted that this is a ghastly incident in which eight persons were done to death and the death penalty alone is the most appropriate punishment to be imposed. Though it is proved that there was an unlawful assembly and the common object of that unlawful assembly was to kill the deceased persons, there is another aspect of the matter inasmuch as there is no clear evidence by the use of whose fire-arm all the six deceased persons died as a result of firing in the bus. It is also pertinent to note that the investigating agency failed to produce clear and distinct evidence to prove the actual overt acts of each of the accused. The failure to examine the driver and conductor of the bus, the failure to seize the bus and the absence of a proper 'mahzar', are all lapses on the part of investigating agency. Moreover, the doctor who gave evidence before the court was not properly cross-examined regarding the nature of the injuries. Some more details could have been collected as to how the incident might have happened inside the bus. These facts are pointed out to show that the firing may have been caused by the assailants even while they were still standing on the footboard of the bus and some of the appellants may not, in fact, have had an occasion to use the fire-arm, though they fully shared the common object of the unlawful assembly. Imposition of the death penalty on each of the five appellants may not be justified under such circumstances. We take this view in view of the peculiar circumstances of the case and it should not be understood to mean that the accused persons are not to be convicted under Section 302 read with Section 149 and the death penalty cannot be imposed in the absence of various overt acts by individual accused persons. In view of the nature and circumstances of the case, we commute the death sentence imposed on A-1 Sahdeo, A-4 Subhash, A-5 Chandraveer, A-7 Satyapal and A-10 Parvinder to imprisonment for life."
72. In the case of Surendra Pal Shivbalakpal Vs. State of Gujarat reported in (2005) 3 SCC 127, the Apex Court has observed in paragraph 13 of the judgment 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."
73. In the case of Aloke Nath Dutta and others Vs. State of West Bengal reported in (2007)12 SCC 230, the Apex Court has observed in paragraphs 169,176 and 178 of the judgment as under:
169. We must remind ourselves that there has been a growing demand in the international fora that death penalty should be abolished. [See Second Optional Protocol to the International Covenants on Civil and Political Rights and the Protocol to the American Constitution on Human Rights to abolish death penalty]. Pursuant to or in furtherance of the pressure exhorted by various international NGOs, several countries have abolished death penalty. The superior courts of several countries have been considering the said demand keeping in view the international covenants, conventions and protocol.
176. Sentencing indisputably is a part of criminal jurisprudence. More importantly, in death penalty references sentencing issues requires serious deliberation. Cases of this nature warrant objective evaluation of indicia and legal thresholds.
178. When a statute provides for death penalty, so long as the same is not ultra vires, application thereof cannot be altogether eliminated. But keeping in view the decision of the Constitution Bench of this Court, the jurisdiction of this Court in this behalf is limited. Death penalty can be awarded only if in the opinion of the court, the case answers the description of rarest of rare cases. What would constitute a rarest of rare cases must be determined in the fact situation obtaining in each case. We have also noticed herein before that different criteria have been adopted by different benches of this Court, although the offences are similar in nature. Because the case involved offences under the same provision, the same by itself may not be a ground to lay down any uniform criteria for awarding death penalty or a lesser penalty as several factors therefor are required to be taken into consideration. No sentencing policy in clear cut terms has been evolved by the Supreme Court. What should we do ?
74. In the case of Swamy Shraddananad alias Murali Manohar Mishra Vs. State of Karnataka reported in (2007) 12 SCC 288, the Apex Court has observed in paragraphs 46-55 and 62 of the judgment as under:
46. We are not oblivious of the fact that there is a material difference distance between 'may be' and 'must be' and furthermore in a case of this nature the evidence must be considered with more than ordinary care lest the shocking nature of crime induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law. [See Kashmira Singh v. State of Madhya Pradesh - AIR 1952 SC 159].
"47. The question, however, is as to whether in a case of this nature death sentence should be imposed. In Aloke Nath Dutta (supra), this Court had an occasion to consider a large number of decisions taking different views in regard to the interpretation of the words "rarest of rare cases" as adumbrated in Bachan Singh v. State of Punjab [(1980) 2 SCC 684]."
48.This Court had also the occasion therein to notice the growing demand in the international fora and in particular the second Optional Protocol to the International Covenants on Civil and Political Rights and the Protocol to the American Constitution on Human Rights abolished that death penalty should be abolished.
49. Recently, the Privy Council in Reyes v. R. [(2002) UKPC 11 : 12 BHRC 219] and Hughes, R. v. (Saint Lucia) [(2002) UKPC 12], noticing the decision of this Court in Mithu v. State of Punjab [(1983) 2 SCR 6903], opined that the mandatory death punishment is unconstitutional. [See also Fox v. The Queen (2002) 2 AC 284, Bowe v. The Queen (2006) 1 WLR 1623 and Coard & Ors. v. The Attorney General (Grenada), (2007) UKPC 7].
50.Abolition of death penalty is not being and, in fact, cannot be advocated; but what requires serious consideration is as to whether the jurisdiction should not be invoked unless there exists an extra-ordinary situation to find that it comes within the purview of "rarest of rare" cases. The approach of the courts should not be to confine its thought process to the identification of a "rare" case. The expression "rarest of rare" case has been evolved by a Constitution Bench of this Court and, thus, demands a meaningful application.
51. It is interesting to note that Bhagwati, J. in Bachan Singh v. State of Punjab reported in [(1982) 3 SCC 24], while expressing his dissenting opinion, noticed as under :
"This arbitrariness in the imposition of death penalty is considerably accentuated by the fragmented Bench structure of our courts where Benches are inevitably formed with different permutations and combinations from time to time and cases relating to the offence of murder come up for hearing sometimes before one Bench, sometimes before another sometimes before a third and so on. Professor Blackshield has in his article on Capital Punishment in India published in Volume 21 of the Journal of the Indian Law Institute pointed out how the practice of Bench formation contributes to arbitrariness in the imposition of death penalty. It is well known that so far as the Supreme Court is concerned, while the number of Judges has increased over the years, the number of Judges on Benches which hear capital punishment cases has actually decreased. Most cases are now heard by two-Judge Benches. Professor Blackshield has abstracted 70 cases in which the Supreme Court had to choose between life and death while sentencing an accused for the offence of murder and analysing these 70 cases he has pointed out that during the period April 28, 1972 to March 8, 1976 only 11 Judges of the Supreme Court participated in 10 per cent or more of the cases. He has listed these 11 Judges in an ascending order of leniency based on the proportion for each Judge of plus votes (i.e. votes for the death sentence) to total votes and pointed out that these statistics show how the judicial response to the question of life and death varies from judge to judge. It is significant to note that out of 70 cases analysed by Professor Blackshield, 37 related to the period subsequent to the coming into force of Section 354, sub-section (3) of the Code of Criminal Procedure, 1973. If a similar exercise is performed with reference to cases decided by the Supreme Court after March 8, 1976, that being the date up to which the survey carried out by Professor Blackshield was limited, the analysis will reveal the same pattern of incoherence and arbitrariness, the decision to kill or not to kill being guided to a large extent by the composition of the Bench. Take for example Rajendra Prasad case decided on February 9, 1979. In this case, the death sentence imposed on Rajendra Prasad was commuted to life imprisonment by a majority consisting of Krishna Iyer, J. and Desai, J., A.P. Sen, J. dissented and was of the view that the death sentence should be confirmed. Similarly in one of the cases before us, namely, Bachan Singh v. State of Punjab, when it was first heard by a Bench consisting of Kailasam and Sarkaria, JJ., Kailasam, J. was definitely of the view that the majority decision in Rajendra Prasad case9 was wrong and that is why he referred that case to the Constitution Bench. So also in Dalbir Singh v. State of Punjab, the majority consisting of Krishna Iyer, J. and Desai, J. took the view that the death sentence imposed on Dalbir Singh should be commuted to life imprisonment while A.P. Sen, J. stuck to the original view taken by him in Rajendra Prasad case and was inclined to confirm the death sentence, It will thus be seen that the exercise of discretion whether to inflict death penalty or not depends to a considerable extent on the value system and social philosophy of the Judges constituting the Bench"
52.We are not oblivious of a line of decisions of this Court where the doctrine of proportionality has been applied, even in the matter of awarding death penalty. [See State of Rajasthan v. Kheraj Ram, (2003) 8 SCC 224, Bablu @ Mubarik Hussain v. State of Rajasthan, 2006 (14) SCALE 15 and Shivu and Anr. v. R.G. High Court of Karnataka and Anr. 2007 (3) SCALE 157]
53.In this case we need not go into the correctness or otherwise of the said view. Although it is also not necessary to do so, we may notice some development of law in this regard.
54.The Criminal Justice Act 1991 of England famously hailed doctrine of proportionality as the guiding principle. But since the 1991 legislation, field of sentencing has seen much reform and Criminal Justice Act of 2003 presents a fresh set of sentencing objectives. Section 142 of the Act delineates the following as the purposes of sentencing:
"142 Purposes of sentencing (1) Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing- (a) the punishment of offenders, (b) the reduction of crime (including its reduction by deterrence), (c) the reform and rehabilitation of offenders, (d) the protection of the public, and (e) the making of reparation by offenders to persons affected by their offences." 55. In this context it, a reference should also be made of the Halliday Report of 2001 (Making Punishments Work) which has some interesting insights to offer on the sentencing structure in England and Wales. In the same vein, a White Paper in 2002 has made a case of reforms and suggested a shift from the proportionality principle.
62. It is important to refer to Harbans Singh v. Union of India [AIR 1982 SC 849] at this juncture. In that case three people were sentenced to death by the trial court for playing an equal part in jointly murdering a family of four persons. The sentence of all the three was confirmed by the High Court. Each of them moved to the Supreme Court by different Special Leave Petitions before three separate benches. One of the accused's petition was dismissed and he was actually executed. Another's petition was allowed and his death sentence was commuted to life imprisonment. And the petition of the third one was also dismissed. He filed a review petition, which was also dismissed, and the Executive refused clemency. He then moved another petition before the Supreme Court bringing to light this arbitrariness. The Supreme Court recommended the President to commute his sentence. Chandrachud J. while lamenting the death of dead accused said:
"The fate of Jeeta Singh has a posthumous moral to tell. He cannot profit by the direction which we propose to give because he is now beyond the process of human tribunals."
75. The Apex Court in the case of Swamy Shraddananad alias Murali Manohar Mishra Vs. State of Karnataka reported in (2008) 13 SCC 767 has observed in paragraphs 33,34,38, 39, 74,75, 94 and 95 of the judgment as under :
33."We are not concerned here with the issue of the Constitutionality of death sentence that stands conclusively settled by two present purpose is that both the Constitution Benches firmly declined to be drawn into making any standardisation or categorisation of cases for awarding death penalty? It was strongly urged before the Court that in order to save the sentence of death from the vice of arbitrariness it was imperative for the Court to lay down guide lines, to mark and identify the types of murder that would attract the punishment of death, leaving aside the other kinds of murder for the lesser option of the sentence of imprisonment for life. In Jagmohan the Court turned down the submission observing (in paragraph 25 of the judgment) as follows:[(1973) 1 SCC 20] [SCC pp. 34-35 para 26] "26....In India this onerous duty is cast upon Judges and for more than a century the Judges are carrying out this duty under the Indian Penal Code. The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment. That discretion in the matter of sentence is as already pointed out, liable to be corrected by superior courts. Laying down of standards to the limited extent possible as was done in the Model Judicial Code would not serve the purpose. The exercise of judicial discretion on well recognized principles is in the final analysis the safest possible safeguards for the accused."
34. As on the earlier occasion, in Bachan Singh too the Court rejected the submission. The Court did not accept the contention that asking the Court to state special reasons for awarding death sentence amounted to leaving the Court to do something that was essentially a legislative function. The Court held that the exercise of judicial discretion on well established principles and on the facts of each case was not the same as to legislate. On the contrary, the Court observed, any attempt to standardise or to identify the types of cases for the purpose of death sentence would amount to taking up the legislative function. The Court said that a `standardization or sentencing discretion is a policy matter which belongs to the sphere of legislation' and `the Court would not by overleaping its bounds rush to do what Parliament, in its wisdom, warily did not do.'
38.In the end, the Court following the decision in Jagmohan left the sentencing process exactly as it came from the legislative, flexible and responsive to each case on its merits, subject to the discretion of the Court and in case of any error in exercise of the discretion subject further to correction by the Superior Court(s). The Court observed:(Bachan Singh Case SCC p. 748 para 197) "197. In Jagmohan, this Court had held that this sentencing discretion is to be exercised judicially on well-recognised principles, after balancing all the aggravating and mitigating circumstances of the crime. By "well-recognised principles" the Court obviously meant the principles crystallized by judicial decisions illustrating as to what were regarded as aggravating or mitigating circumstances in those cases. The legislative changes since Jagmohan - as we have discussed already - do not have the effect of abrogating or nullifying those principles. The only effect is that the application of those principles is now to be guided by the paramount beacons of legislative policy discernible from Sections 354(3) and 235(2), namely: (1) The extreme penalty can be inflicted only in gravest cases of extreme culpability; (2) In making choice of the sentence, in addition to the circumstances of the offence, due regard must be paid to the circumstances of the offender also."
39.Earlier in the judgment while reaffirming Jagmohan, subject of course to certain adjustments in view of the legislative changes (section 354(3) the Court observed:
"161..........The expression "special reasons" in the context of this provision, obviously means "exceptional reasons" founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal. Thus, the legislative policy now writ large and clear on the face of Section 354(3) is that on conviction for murder and other capital offences punishable in the alternative with death under the Penal Code, the extreme penalty should be imposed only in extreme cases."
(Emphasis added) In conclusion the Constitution Bench decision in Bachan Singh said:
"209.........It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3) viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."
74. At this stage, it will be useful to take a very brief look at the provisions with regard to sentencing and computation, remission etc. of sentences. Section 45 of the Penal Code defines "life" to mean the life of the human being, unless the contrary appears from the context. Section 53 enumerates punishments, the first of which is death and the second, imprisonment for life. Sections 54 and 55 give to the appropriate Government the power of commutation of the sentence of death and the sentence of imprisonment for life respectively. Section 55A defines "appropriate Government". Section 57 provides that in calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years.
75. It is now conclusively settled by a catena of decisions that the punishment of imprisonment for life handed down by the Court means a sentence of imprisonment for the convict for the rest of his life. (See the decisions of this Court in Gopal Vinayak Godse vs. The State of Maharashtra &others, (1961) 3 SCR 440 (Constitution Bench); Dalbir Singh & others vs. State of Punjab, (1979) 3 SCC 745; Maru Ram vs. Union of India, (1981) 1 SCC 107 (Constitution Bench); Naib Singh vs. State of Punjab, (1983) 2 SCC 454; Ashok Kumar alias Golu vs. Union of India, (1991) 3 SCC 498; Laxman Naskar (Life Convict) vs. State of W.B.,, (2000) 7 SCC 626; Zahid Hussein vs. State of West Bengal, (2001) 3 SCC 750; Kamalanantha vs. State of Tamil Nadu, (2005) 5 SCC 194; Mohd.Munna vs. Union of India, (2005) 7 SCC 416 and C.A.Pious vs. State of Kerala. (2007) 8 SCC 312]
94.In light of the discussions made above we are clearly of the view that there is a good and strong basis for the Court to substitute a death sentence by life imprisonment or by a term in excess of fourteen years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order, as the case may be.
95.In conclusion we agree with the view taken by Sinha J. We accordingly substitute the death sentence given to the appellant by the trial court and confirmed by the High court by imprisonment for life and direct that he shall not be released from prison till the rest of his life."
76. In the case of Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra and others reported in (2009) 6 SCC 498, the Apex Court has observed in relevant paragraphs of the judgment as under:-
43. A Constitution Bench of this Court in Bachan Singh v. State of Punjab [(1980) 2 SCC 684] repelled the challenge of constitutionality to death penalty by laying down the framework law on this point. Bachan Singh (supra) serves as a watershed moment in the history of death penalty jurisprudence in India as it severed Indian judiciary's normative ambivalence on the subject. It was pronounced after the new legislative policy (in form of section 354(3) of the Code of Criminal Procedure, 1973) came into force. The impact of this legislative change was variously interpreted by this court, and this disparity in interpretation triggered Bachan Singh (supra). One such case, which had laid down an interpretation of section 354(3) was Rajendra Prasad v. State of Uttar Pradesh [(1979) 3 SCC 646].
44. In Bachan Singh the court noted that death penalty is acknowledged in the constitution. Also the new sentencing procedures were held to be to be in the nature of safeguards and as a guidance sentencing. The sentencing procedure was taken to be orienting the death punishment towards application in very selective situations. On the aforementioned reasoning, the court upheld death punishment, substantively and procedurally.
45. There are three broad values emerging from Bachan Singh (supra):
1. INDIVIDUALIZED SENTENCING
46. For an effective compliance of sentencing procedure under section 354(3) and section 235(2) Cr.P.C, sufficient discretion is a pre-condition. Strict channeling of discretion would also go against the founding principles of sentencing as it will prevent the sentencing court to identify and weigh various factors relating to the crime and the criminal such as culpability, impact on the society, gravity of offence, motive behind the crime etc. Bachan Singh (supra) also holds the same view.
47. It was held in Bachan Singh (supra) that:
"173. Thirdly, a standardisation of the sentencing process which leaves little room for judicial discretion to take account of variations in culpability within single-offence category ceases to be judicial. It tends to sacrifice justice at the altar of blind uniformity. Indeed, there is a real danger of such mechanical standardisation degenerating into a bed of procrustean cruelty.
174. Fourthly, standardisation or sentencing discretion is a policy matter which belongs to the sphere of legislation. When Parliament as a matter of sound legislative policy, did not deliberately restrict, control or standardise the sentencing discretion any further than that is encompassed by the broad contours delineated in Section 354(3), the court would not by overleaping its bounds rush to do what Parliament, in its wisdom, warily did not do."
48.The court while discussing Furman v. Georgia, 408 U.S. 238 (1972) in this regard held the following:
"192. It appears to us that in Gregg v. Georgia and the companion cases, the Supreme Court of U.S.A.was obliged to read down the requirements of Furman and to accept these broadly worded, loose- ended and not-all-inclusive `standards' because in the area of sentencing discretion, if it was to retain its judicial character, exhaustive standardisation or perfect regulation was neither feasible nor desirable."
2(A) Sentencing Procedure
53. The analytical tangle relating to sentencing procedure deserves some attention here. Sentencing procedure deserves an articulate and judicial administration. In this regard, all courts are equally responsible. Sentencing process should be so complied with, that enough information is generated to objectively inform the selection of penalty. The selection of penalty must not require a judge to reflect on his/her personal perception of crime.
54. In Swamy Shraddananda @ Murali Manohar Mishra v. State of Karantaka [2008 (10) SCALE 669], the court notes that the awarding of sentence of death "depends a good deal on the personal predilection of the judges constituting the bench." This is a serious admission on the part of this court. In so far as this aspect is considered, there is inconsistency in how Bachan Singh (supra) has been implemented, as Bachan Singh (supra) mandated principled sentencing and not judge centric sentencing. There are two sides of the debate. It is accepted that rarest of rare case is to be determined in the facts and circumstance of a given case and there is no hard and fast rule for that purpose. There are no strict guidelines. But a sentencing procedure is suggested. This procedure is in the nature of safeguards and has an overarching embrace of rarest of rare dictum. Therefore, it is to be read with Article 21 and 14.
Pre-sentence Hearing and "Special Reasons"
55. Under section 235(2) and 354 (3) of the Criminal Procedure Code, there is a mandate as to a full fledged bifurcated hearing and recording of "special reasons" if the court inclines to award death penalty. In the specific backdrop of sentencing in capital punishment, and that the matter attracts constitutional prescription in full force, it is incumbent on the sentencing court to oversee comprehensive compliance to both the provisions. A scrupulous compliance of both provisions is necessary such that an informed selection of sentence could be based on the information collected and collated at this stage. Please see Santa Singh v. State of Punjab, [AIR 1956 SC 526], Malkiat Singh and Ors. v. State of Punjab, [(1991)4SCC341], Allaudin Mian v. State of Bihar, [AIR 1989 SC 1456], Muniappan v. State of Tamil Nadu, [( 1981 ) 3 SCC 11], Jumman Khan v. State of U.P, [(1991)1SCC752], Anshad and Ors. v. State of Karnataka, [(1994)4SCC381] on this.
Nature of Information to be Collated at Pre-sentence Hearing
56. At this stage, Bachan Singh (supra) informs the content of the sentencing hearing. The court must play a proactive role to record all relevant information at his stage. Some of the information relating to crime can be culled out from the phase prior to sentencing hearing. This information would include aspects relating to the nature, motive and impact of crime, culpability of convict etc. Quality of evidence adduced is also a relevant factor. For instance, extent of reliance on circumstantial evidence or child witness plays an important role in the sentencing analysis. But what is sorely lacking, in most capital sentencing cases, is information relating to characteristics and socio-economic background of the offender. This issue was also raised in the 48th report of the Law Commission.
57. Circumstances which may not have been pertinent in conviction can also play an important role in the selection of sentence. Objective analysis of the probability that the accused can be reformed and rehabilitated can be one such illustration. In this context, guideline no. 4 in the list of Mitigating Circumstances as borne out by Bachan Singh (supra) is relevant. The court held:
"206. (4) The probability that the accused can be reformed and rehabilitated.
The State shall by evidence prove that the accused does not satisfythe conditions 3 and 4 above."
In fine, Bachan Singh (supra) mandated identification of aggravating and mitigating circumstance relating to crime and the convict to be collected in the sentencing hearing.
2(B) Nature of Content of Rarest of rare dictum
58. The rarest of rare dictum breathes life in "special reasons" under section 354(3). In this context, Bachan Singh (supra) laid down a fundamental threshold in the following terms:
"209....... "A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."
An analytical reading of this formulation would reveal it to be an authoritative negative precept. "Rarest of rare cases" is an exceptionally narrow opening provided in the domain of this negative precept. This opening is also qualified by another condition in form of "when the alternative option is unquestionably foreclosed".
59. Thus, in essence, rarest of rare dictum imposes a wide-ranging embargo on award of death punishment, which can only be revoked if the facts of the case successfully satisfy double qualification enumerated below:
1. that the case belongs to the rarest of rare category
2. and the alternative option of life imprisonment will just not suffice in the facts of the case
60.The rarest of rare dictum serves as a guideline in enforcing section 354(3) and entrenches the policy that life imprisonment is the rule and death punishment is an exception. It is a settled law of interpretation that exceptions are to be construed narrowly. That being the case, the rarest of rare dictum places an extraordinary burden on the court, in case it selects death punishment as the favoured penalty, to carry out an objective assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum.
61.The background analysis leading to the conclusion that the case belongs to rarest of rare category must conform to highest standards of judicial rigor and thoroughness as the norm under analysis is an exceptionally narrow exception. A conclusion as to the rarest of rare aspect with respect to a matter shall entail identification of aggravating and mitigating circumstances relating both to the crime and the criminal. It was in this context noted:
"161.....The expression "special reasons" in the context of this provision, obviously means "exceptional reasons" founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal".
66.The Rarest of rare dictum, as discussed above, hints at this difference between death punishment and the alternative punishment of life imprisonment. The relevant question here would be to determine whether life imprisonment as a punishment will be pointless and completely devoid of reason in the facts and circumstances of the case? As discussed above, life imprisonment can be said to be completely futile, only when the sentencing aim of reformation can be said to be unachievable. Therefore, for satisfying the second exception 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. This analysis can only be done with rigor when the court focuses on the circumstances relating to the criminal, along with other circumstances. This is not an easy conclusion to be deciphered, but Bachan Singh (supra) sets the bar very high by introduction of Rarest of rare doctrine.
68. In Bachan Singh (supra), it was stated:
"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 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 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."
2(E) Sentencing justification in heinous crimes.
71. It has been observed, generally and more specifically in the context of death punishment, that sentencing is the biggest casualty in crimes of brutal and heinous nature. Our capital sentencing jurisprudence is thin in the sense that there is very little objective discussion on aggravating and mitigating circumstances. In most such cases, courts have only been considering the brutality of crime index. There may be other factors which may not have been recorded.
72. We must also point out, in this context, that there is no consensus in the court on the use of "social necessity" as a sole justification in death punishment matters. The test which emanates from Bachan Singh (supra) in clear terms is that the courts must engage in an analysis of aggravating and mitigating circumstances with an open mind, relating both to crime and the criminal, irrespective of the gravity or nature of crime under consideration. A dispassionate analysis, on the aforementioned counts, is a must. The courts while adjudging on life and death must ensure that rigor and fairness are given primacy over sentiments and emotions.
73.In Panchhi Vs. State of U.P. (1998) 7 SCC 177, it was stated:
"......the court downplayed the heinous nature of crime and relied on mitigating circumstances in the final opinion. The court held:
"20. We have extracted the above reasons of the two courts only to point out that it is the savagery or brutal manner in which the killers perpetrated the acts on the victims including one little child which had persuaded the two courts to choose death sentence for the four persons. No doubt brutality looms large in the murders in this case particularly of the old and also the tender-aged child. It may be that the manner in which the killings were perpetrated may not by itself show any lighter side but that is not very peculiar or very special in these killings. Brutality of the manner in which a murder was perpetrated may be a ground but not the sole criterion for judging whether the case is one of the "rarest of rare cases" as indicated in Bachan Singh case. In a way, every murder is brutal, and the difference between one from the other may be on account of mitigating or aggravating features surrounding the murder."
81.The rarest of rare policy and legislative policy on death punishment may not be essentially tuned to public opinion. Even if presume that the general populace favours a liberal DP policy, although there is no evidence to this effect, we can not take note of it. We are governed by the dictum of Bachan Singh (supra) according to which life imprisonment is the rule and death punishment is an exception.
82.We are also governed by the Constitution of India. Article 14 and 21 are constitutional safeguards and define the framework for state in its functions, including penal functions. They introduce values of institutional propriety, in terms of fairness, reasonableness and equal treatment challenge with respect to procedure to be invoked by the state in its dealings with people in various capacities, including as a convict. The position is, if the state is precariously placed to administer a policy within the confines of Article 21 and 14, it should be applied most sparingly. This view flows from Bachan Singh (supra) and it this light, we are afraid that Constitution does not permit us to take a re-look on the capital punishment policy and meet society's cry for justice through this instrument.
83.The fact that we are here dealing with safeguards entrenched in the Constitution should materially change the way we look for reasons while awarding the death punishment. The arguments which may be relevant for sentencing with respect to various other punishments may cease to apply in light of the constitutional safeguards which come into operation when the question relates to extinguishment of life. If there are two considerations, the one which has a constitutional origin shall be favoured.
110 At this point we also wish to point out that the uncertainty in the law of capital sentencing has special consequence as the matter relates to death penalty - the gravest penalty arriving out of the exercise of extraordinarily wide sentencing discretion, which is irrevocable in nature. This extremely uneven application of Bachan Singh (supra) has given rise to a state of uncertainty in capital sentencing law which clearly falls foul of constitutional due process and equality principle. The situation is unviable as legal discretion which is conferred on the executive or the judiciary is only sustainable in law if there is any indication, either though law or precedent, as to the scope of the discretion and the manner of its exercise. There should also be sufficient clarity having regard to the legitimate aim of the measure in question. Constitution of India provides for safeguards to give the individual adequate protection against arbitrary imposition of criminal punishment.
111. Although these questions are not under consideration and cannot be addressed here and now, we cannot help but observe the global move away from the death penalty. Latest statistics show that 138 nations have now abolished the death penalty in either lawn or practice (no executions for 10 years). Our own neighbors, Nepal and Bhutan are part of these abolitionist nations while others including Philippines and South Korea have also recently joined the abolitionist group, in law and in practice respectively.
112. We are also aware that on 18-12-2007, the United Nations General Assembly adopted resolution 62/149 calling upon countries that retain the death penalty to establish a worldwide moratorium on executions with a view to abolishing the death penalty. India is, however, one of the 59 nations that retain the death penalty. Credible research, perhaps by the Law Commission of India or the National Human Rights Commission may allow for an up to date and informed discussion and debate on the subject.
1. "Justice" in capital sentencing
118. Justice must be the first virtue of the law of sentencing. A sentencing court must consider itself to be a "forum of principle". The central idea of such a forum is its continuing commitment to inhere a doctrinal approach around a core normative idea."Principled reasoning" flowing from judicial precedent or legislation is the premise from which the courts derive the power. The movement to preserve substantial judicial discretion to individualize sentences within a range of punishments also has its basis in the court's ability to give principled reasoning.
127.Frequent findings as to arbitrariness in sentencing under section 302 may violate the idea of equal protection clause implicit under Article 14 and may also fall foul of the due process requirement under Article 21."
128. It is to be noted that we are not focusing on whether wide discretion to choose between life imprisonment and death punishment under Section 302 is constitutionally permissible or not. The subject-matter of inquiry is how discretion under section 302 may result in arbitrariness in actual sentencing. Section 302 as held by Bachan Singh (supra) is not an example of law which is arbitrary on its face but is an instance where law may have been arbitrarily administered.
131. When the court is faced with a capital sentencing case, a comparative analysis of the case before it with other purportedly similar cases would be in the fitness of the scheme of the Constitution. Comparison will presuppose an identification of a pool of equivalently circumstanced capital defendants. The gravity, nature and motive relating to crime will play a role in this analysis."
132. Next step would be to deal with the subjectivity involved in capital cases. The imprecision of the identification of aggravating and mitigating circumstances has to be minimized. It is to be noted that the mandate of equality clause applies to the sentencing process rather than the outcome. The comparative review must be undertaken not to channel the sentencing discretion available to the courts but to bring in consistency in identification of various relevant circumstances. The aggravating and mitigating circumstances have to be separately identified under a rigorous measure.
141. The US Supreme Court has acknowledged that there is a profound and immeasurable gap between a death sentence and a life sentence. In Woodson, [428 U.S. at 305] the court held that there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case. (see also Lockett, [438 U.S. At 604]) In Rummel v. Estelle, [445 U.S. 263, 272 (1980)], the Court noted that challenges to the excessiveness of particular sentences have rarely been successful in non-capital cases.
145.During the sentencing process, the sentencing court or the appellate court for that matter, has to reach to a finding of a rational and objective connection between capital punishment and the purpose for which it is prescribed. In sentencing terms, "special reasons" as envisaged under section 354(3) Code of Criminal Procedure have to satisfy the comparative utility which capital sentence would serve over life imprisonment in the particular case. The question whether the punishment granted impairs the right to life under Article 21 as little as possible.
147. The fact that capital sentence is a live penalty in India; we should strive to tune the practice to the evolving standards of a maturing society. The normative thresholds attached thereto and evolving constitutional sensibilities shall continue to throw fresh challenges. We have not fully resolved the dilemma arising from the fact that the Constitution prohibits excessive punishment borne out of undue process, but also permits, and contemplates that there will be capital punishment arising out of an exercise of extremely wide discretion. This dilemma is inherently difficult to resolve. And we should refrain from enforcing any artificial peace on this landscape. While chosing for one option or the other, these constitutional principles must be borne in mind. The nature of capital sentencing is such that it is important that we ask the right questions.
"164. The issue of deterrence has also been discussed in the judgment of Swamy Shraddananda - I (supra), thus:
"68.. It is noteworthy to mention here the Law Commission in its Report of 1967 took the view that capital punishment acted as a deterrent to crime. While it conceded that statistics did not prove these so-called deterrent effects. It also said that figures did not disprove them either."
[Emphasis supplied] Most research on this issue shows that the relationship between deterrence and severity of punishment is complicated. It is not obvious how deterrence relates to severity and certainty. Furthermore criminal policy must be evidence-led rather than based on intuitions, which research around the world has shown too often to be wrong. In the absence of any significant empirical attention to this question by Indian criminologists, we cannot assume that severity of punishment correlates to deterrence to an extent which justifies the restriction of the most fundamental human right through the imposition of the death penalty. The goal of crime reduction can be achieved by better police and prosecution service to the same or at least to a great extent than by the imposition of the death penalty.
165. In this respect, we may furthermore add here that in the most recent survey of research findings on the relation between the death penalty and homicide rates, conducted for the United Nations in 1988 and updated in 2002, it was stated:
"... it is not prudent to accept the hypothesis that capital punishment deters murder to a marginally greater extent than does the threat and application of the supposedly lesser punishment of life imprisonment." [See Roger Hood, The Death Penalty: A World- wide Perspective, Oxford, Clarendon Press, third edition, 2002, p. 230]
171. Section 354(3) of the Code of Criminal Procedure requires that when the conviction is for an offence punishable with death or in the alternative with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and in the case of sentence of death, the special reasons thereof. We do not think that the reasons assigned by the courts below disclose any special reason to uphold the death penalty. The discretion granted to the courts must be exercised very cautiously especially because of the irrevocable character to death penalty. Requirements of law to assign special reasons should not be construed to be an empty formality.
172. We have previously noted that the judicial principles for imposition of death penalty are far from being uniform. Without going into the merits and demerits of such discretion and subjectivity, we must nevertheless reiterate the basic principle, stated repeatedly by this Court, that life imprisonment is the rule and death penalty an exception. Each case must therefore be analyzed and the appropriateness of punishment determined on a case-by- case basis with death sentence not to be awarded save in the `rarest of rare' case where reform is not possible. Keeping in mind at least this principle we do not think that any of the factors in the present case discussed above warrants the award of the death penalty. There are no special reasons to record the death penalty and the mitigating factors in the present case, discussed previously, are, in our opinion, sufficient to place it out of the "rarest of rare" category.
77. In the case of State of Punjab Vs. Manjit Singh & Ors. reported in (2009) 14 SCC 31, the Supreme Court has observed in paragraphs 13-16, 17 and 19-20 of the judgement as under :-
"13.......The Supreme Court has held succinctly in several decisions that for a case to be regarded in the rarest of rare category, fact situation has to be exceptional, like after committing one offence another offence is committed so as to cover up the first offence. In Bachan Singh v. State of Punjab [(1980) 2 SCC 684] this Court for the first time used this category (rarest of rare) for awarding death penalty. However, the Bachan Singh (supra) decision did not elaborate the criteria for identifying "rarest of rare" cases.
14. In Machhi Singh v. State of Punjab [(1983) 3 SCC 470] this Court laid down the guidelines for the application of the "rarest of rare" rule to specific cases. The guidelines were couched in fairly broad terms that relate to several considerations such as: "Manner of commission of murder", "Motive for the commission of murder", "Anti-social or socially abhorrent nature of the crime", "Magnitude of crime" and "Personality of victim of murder".
15. With regard to the quantum of punishment to be awarded to persons found guilty of offences dealt with in the IPC, the Code confers a wide discretion on the court in the matter of awarding appropriate punishment by prescribing the maximum punishment and in some cases both the maximum as well as the minimum punishment for the offence. Though no general guidelines are laid down in the Code for the purpose of awarding punishment, generally the judicial discretion of the court is guided by the principle that the punishment should be commensurate with the gravity of the offence having regard to the aggravating and mitigating circumstances vis-`-vis an accused in each case. In such situation, the obligation of the court in making the choice of death sentence for the person who is found guilty of murder becomes more onerous indeed.
16. On the question of awarding the sentence for the offences for which life imprisonment as well as the death sentence is prescribed, sub-section (3) of Section 354 CrPC enjoins that in the case of sentence of death, special reasons for such sentence shall be stated. As already noted, the provision was elaborately discussed by this Court in Bachan Singh (supra). The Court pointed out the change in the policy of sentencing in following manner: (SCC p. 734, para 151) "151. Section 354(3) of the Code of Criminal Procedure, 1973 marks a significant shift in the legislative policy underlying the Code of 1898, as in force immediately before 1-4-1974, according to which both the alternative sentences of death or imprisonment for life provided for murder and for certain other capital offences under the Penal Code were normal sentences. Now, according to the changed legislative policy which is patent on the face of Section 354(3), the normal punishment for murder and six other capital offences under the Penal Code, is imprisonment for life (or imprisonment for a term of years) and death penalty is an exception."
"17. For ascertaining the existence or absence of special reasons in the context, it was observed that though, in a sense, to kill is to be cruel and, therefore, all murders are cruel, yet such cruelty may vary in its degree of culpability and it is only when culpability assumes the proportion of extreme depravity that special reasons can legitimately be said to exist. It was emphasized that life imprisonment was the rule and death sentence was an exception and that death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstance of the crime and provided that the option to sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
19 In Allauddin Mian Vs. State of Bihar reported in (1989) 3 SCC 5 laid down that unless the nature of the crime and the circumstances of the offender reveal that the criminal was a menace to the society and the sentence of life imprisonment would be altogether inadequate, the court should ordinarily impose a lesser punishment and not the extreme punishment of death which should be reserved for exceptional cases only.
"20.....Whether the case is one of the rarest of the rare cases is a question which has to be determined on the facts of each case. It needs to be reiterated that the choice of the death sentence has to be made only in the rarest of the rare cases and that where culpability of the accused has assumed depravity or where the accused is found to be an ardent criminal and menace to the society and; where the crime is committed in an organized manner and is gruesome, cold-blooded, heinous and atrocious; where innocent and unarmed persons are attacked and murdered without any provocation."
78. In the case of Sebastian alias Chevithiyan Vs. State of Kerala reported in (2010) 1 SCC 58, the Supreme Court has observed in paragraphs 18 and 19 of judgment as under :
"18 We are of the opinion that in the background of these facts, that the death penalty ought to be converted to imprisonment for life but in terms laid down by this Court in Swamy Shraddananda vs. State of Karnataka (2008) 13 SCC 767 as his continuance as a member of an ordered society is uncalled for. We quote here-in-below the relevant observations :
"92. The matter may be looked at from a slightly different angle. The issue of sentencing has two aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionately inadequate. When an appellant comes to this Court carrying a death sentence awarded by the trial court and confirmed by the High Court, this court may find, as in the present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. What then should the Court do? If the Court's option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 year and the other death, the Court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court i.e. the vast hiatus between 14 years' imprisonment and death. It needs to be that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years' imprisonment would amount to no punishment at all."
"94.In the light of the discussions made above we are clearly of the view that there is a good and strong basis for the Court to substitute a death sentence by life imprisonment or by a term in excess of fourteen years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order, as the case may be."
"95.In conclusion, we agree with the view taken by Sinha, J. We accordingly substitute the death sentence given to the appellant by the trial court and confirmed by the High Court by imprisonment for life and direct that he shall not be released from prison till the rest of his life."
"19.We accordingly dismiss the appeals but modify the sentence of death to one for the rest of his life in terms of the judgment in Shraddananda's case."
79. In the case of Ramraj alias Nanhoo alias Bihnu Vs.State of Chhattisgarh reported in (2010) 1 SCC 573, the Supreme Court has observed in paragraphs 9-11 of judgment as under :-
"9. In Dalbir Singh v. State of Punjab three judges of this Court had occasion to consider the awarding of death penalty. Following the decision in Rajendra Prasad v. State of U.P., V.R. Krishna Iyer and D.A. Desai,JJ., observed (Dalbir Singh case, SCC p.753, para14) that life imprisonment "strictly mans imprisonment for the whole of the man's life, but in practice amounts to incarceration for a period between 10 and 14 years" which may, "at the option of the convicting court, be subject to the condition that the sentence of imprisonment shall last as long as the life lasts where there are exceptional indications of murderous recidivism and the community cannot run the risk of the convict being large."
10."In State of Punjab v. Joginder Singh which was heard along with three other matters, this Court was called upon to consider the relevant provisions of the Manual for the Superintendence and Management of Jails in the Punjab. Considering the grant of remissions and communications granted in exercise of power under Sections 432 and 433 Cr.P.C., this Court held that such schemes have been introduced to ensure prison discipline and good behaviour and not to upset sentences. If the sentence is of imprisonment for life, ordinarily the convict has to pass the remainder of his life in prison, but for remission and communications granted in exercise of the aforesaid powers. Even in such cases, Section 433-A of the Code or the executive instructions of 1976 do not insist that the convict pass the remainder of his life in prison but merely insists that he shall have served time for at least 14 years.
11.The next decision to which we may refer in this regard is that of the Constitution Bench in the celebrated case of Maru Ram v. Union of India which was a writ petition under Article 32 of the Constitution and was heard along with several other writ petitions on the same issue, namely, the length of imprisonment of a convict in respect of an offence carrying a life sentence, in view of the amended provisions of Section 433-A Cr.P.C. which was introduced into the Code by the Amendment Act of 1978. By the said amendment, a full 14 year term of imprisonment was made mandaory for prisoners sentenced to life imprisonment and those who were sentenced to death, but the sentence was commuted to life imprisonment under Section 433 Cr.P.C. The Constitution Bench held that Section 302 IPC or other like offence fixes the sentence to be life imprisonment and 14 years' imprisonment under Section 433-A is never heavier than the life term. Remission vests no right to release when sentence is life imprisonment. No greater punishment is inflicted by Section 433-A than the law applicable to the crime. Nor is there any vested right to remission cancelled by compulsory 14 year jail life since a life since a life sentence is a sentence for life."
80. In the case of Dilip Premnarayan Tiwari and another Vs. State of Maharashtra reported in (2010) 1 SCC 775,the supreme Court has observed in paragraphs 60,65-67 and 68 of the judgment as under:-
60. All murders are foul, however, the degree of brutality,depravity and diabolic nature, differ in each case. It has been held in the earlier decisions of this Court which we may not repeat that the circumstance under which the murders took place, differ from case to case and there cannot be a straightjacket formula for deciding upon the circumstances under which the death penalty is a must.
65. "No doubt, the murder was brutal. However, it has been pointed out by Shri Gaurav Agrawal as also Shri Raj that this was not a diabolic murder nor had the murderers acted in depravity of their minds by disfiguring the bodies. The incident must have taken place barely within 10-15 minutes when they came, assaulted the family members and left. True it is that the two ladies who were assaulted were helpless and so were Krishnan and Prabhu. But when we weigh all the circumstances, particularly, about the mindset of Dilip, the cruel acts on the part of the accused would not justify the death sentence.
66.The disturbed mental feeling or the constant feeling of injustice has been considered by this Court as a mitigating circumstance in Om Prakash v. State of Haryana [1999 (3) SCC 19] where the accused had committed the murder of seven persons. That is also an indicator to the fact that mere number of persons killed is not by itself a circumstance justifying the death sentence. In fact in one other case reported as Ram Pal v. State of U.P. [2003 (7) SCC 141] total 21 persons were killed as the accused trapped them in a house and burnt the house. Shri Karanjkar, appearing on behalf of the State very strongly contended as against this, that in the present case while four persons were killed, two helpless ladies were also assaulted and very seriously injured and it is only because the accused thought that those two ladies had died and left, that the lives of Deepa and Indira were spared. Therefore, in the circumstances of this case, we must lean in favour of the death sentence.
67. In a death sentence matter, it is not only the nature of the crime but the background of the criminal,his psychology, his social conditions and his mindset for committing the offence are also relevant. No doubt in Ravji alias Ram Chandra v. State of Rajasthan [1996 (2) SCC 175], this Court held as under:-
"...The crimes had been committed with utmost cruelty and brutality without any provocation, in a calculated manner. It is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal"...."
68.It is also true that this case was followed in as many as six cases where the death sentence was approved of. However, in his judgment reported as Santosh Kumar Satishbhushan Bariyar v.State of Maharashtra [JT 2009 (7) SC 248] Hon. Sinha, J. pointed out that this judgment is per incuriam as the law laid down therein is contrary to the law laid down in Bachan Singh's case (cited supra) where the principle has fallen out to the effect that the Court should not confine its consideration principally or merely to the circumstances connected with the particular crime but also give due consideration to the circumstances of the criminal. It is because of this that we have ventured to consider the mindset of accused No.1, Dilip and the vicious caste grip that might have catapulted the crime committed by him. We would, thus, follow Bachan Singh's case (cited supra) and the principles therein rather than following the narrow approach given in Ravji's case.
81. Exponents of utilitarianism viz. Bentham and Cesare Beccaria insisted that the punishment is an evil. Therefore, punishment that is just fair and reasonable must be inflicted to curb the menace of crime. The capital punishment ought not to be proposed for, where some lesser sentence could achieve the same objects and results. The march of "human civilization" reduced the number of crimes punishable with death, which was about 200 by the end of 18th century. Consequently in U.S.A., only crime of treason has been left as punishable with death. There are States which have abolished the capital punishment, still few retain the same......"
82. At this juncture it is also relevant to refer to the speech delivered by Hon'ble Mr. Justice V.R. Krishna Iyer, Former Judge of the Supreme Court of India in an address to the 18th Annual Conference of American Judges Association, delivered on 25.10.1978 at SEATTLE, Washington State, published in (1979) 1 SCC (Jour) 7, which is as under :
".......The mind is its own place and can make a hell of heaven and a heaven of hell. A crime less haven is not beyond us if our technology noetic technology-is geared to the goal of mental transformation. But we have to shed a die-hard superstition that man can be made good by torture alone,that terror is the only deterrent, that pain of the flesh is a sure teacher. If the human essence responds only to stonewalls and iron bars, recoils from the hangmans rope and electric chair and electric chair and nothing else, it is an affirmation of the penology of blood and iron, of punishment red in tooth and claw and a repudiation of the criminology of consciousnss, of scientific reformation of the inner man and his spirits as a clear corrective for the outer mans criminal aberrations. The potency of the subtle to shake and shape the gross is hard to believe on the psychic plane even though on the physical plane we now accept that the splitting of an atom can blow up a mountain. Neuroscience tells us that pyschic atoms have similar terrific potential for good and evil. The physical and the psychical, the secular and the spiritual, obey the same laws of nature since we live in an integrated Universe. If we dive down the divine source of all laws and reach down to the level of consciousness from where the manifest creation springs, we become masters and makers of order. Cosmos against chaos, is then at our beck and call. Crimelessness is then at our command. This profound truth is too simple to be credible, so that the incredibly absurd appeals to our grosser responses that prison trauma and the firing squad are the only nostrums in our penal pharmacopoeia. If penology were to flourish at the flesh level, flogging and public hanging were the best sentences -a crucifixion thought too uncivilized for words. Until this Himalayan superstition is blown up by the Himalayan truth that man is more than meat,our flesh-bound penology is destined to flounder, crimes will decidedly flourish and our cities and countryside will be the paradise of violence and vulgarity and anathema for all those virtues we claim as the finer heritage of mankind. Crimelessness and crimefulness, delinquency and normalcy reduce themselves to a simple choice between mental science at the service of rehabilitation and punitive bigotry aggravating the malady......."
"........Asking the question is the death penalty a deterrent Richard D Knudten answers :
"........most objective studies suggest that no discernible correlation exists between the actual current homicide rate and the availability of the imposition of the death penalty. In fact, William graves, a physician, discovered in a 10 year study during the period 1946 to1955 that more homicides occurred in Aalmada, Los Angeles, and San Francisco countries (California )during Thursdays and Fridays when no executions were completed. The actual psychic contagion surrounding the event he suggested in its own way may actually encourage the infliction of other homicides rather than deter their occurrence other data further reveal that the use of the death penalty when called for is marked by inequality Most evidence pints out that it is imposed disproportionately upon the poor the Negro and theunpopular.
The United Nations committee that studied capital punishment found that is is generally agreed between the retentionists and abolitionists, whatever their opinions about the validity of comparative studies of deterrence that the data which now exist show no correlation between the existence of capital punishment and low rates of capital crime......."
".....As Dr. Hiranandini has argued....It has been abundantly proved that the death penalty is no deterrent to murder. The belief is based on an inadequate understanding of the psychology of those who commit murders. A person who commits a premeditated murder convinces himself that he will escape detection and is is to be doubted whether such a man's decision to commit a crime is influenced by its legal consequences."
"Man--Man--every man--is of divine stuff. Criminals are not born but made and can be unmade and this humanist tryst and spiritual formula is the founding faith of all civilization. Only fascists will negate this faith. Our jails are what they are because there is a little Hitler lurking in most of us that we legitimate uncivilized legality. But there is a hidden Jesus a latent Buddha a dormant Gandhi, a luscent crescent also in each of us and so we believe that love compassion and non violence are higher than their opposite and man every man can be redeemed and his original status and harmony with society restored given the opportunity. Every saint has a past,every sinner a future and necessarily the key to the rehabilitation process is not fists but wits not traumatic carceration but therapeutic l treatment......"
"Stress is the cause of most crime stressologists say. Tension springs from suppression. Distortion is bred by broken homes parental neglect bad company experimental crime coarse training inside the prison addiction the drugs and drinks familiarity with vice and violence and fascination for mafia sub culture."
"The only panacea for crime is to minister to the "mind diseased". Consciousness is at the core of the human mind-the seven states of consciousness. Neuro-scientists have experimented with the astounding discoveries of the ancient East, the yogic experiences of India and, today, the modern world has the unique advantage of the science of consciousness-the subtlest version of the astonishing advances of current physics and other natural sciences. Bed-rocked on this proven verity is my thesis that the criminology of consciousness is the salvation of crime-riven society."
"....Death sentence or prison torture is not the last drug in the justice pharmacopeia. It is a confession of failure to do justice to living man."
"......that crime is a disease of stress and stress related causes. Murder is caused in the heat of passion burglary in the pressure for possession rape shoots out of over powering sex. Whatever the apparent motivation, the causa causans is stress tension, suppression anxiety, destruction, negativity; a neuro physiological-psychological syndrome. The whole focus therefore shifts to stress-proofing, not tinkering with adventitious aspects.
"Professor Halleck, University of Wisconsin has said:
The stresses that lead to mental illness are often the same stresses that lead to crime while both mental illness behaviors and criminal behaviors provide a certain degree of mastery over stress the adaptations themselves often lead to some difficulty with the environment. Mental illness always has a maladaptive quality and criminality usually has a maladaptive quality."
"I conclude with a request to each one of you to set your face against infallible finality and to remember Robert Frost's lines:
The woods are dart and green and deep But I have promise to keep And miles to go before I sleep And miles to go before I sleep"
83. Having concluded the guilt of the culprits we now land up on the most dicey and onerous area of judicial exercise where the judicial discretion can have a lethal connotation as the Judge is to decide whether the lamp of life of a human being is to be extinguished once for all or that it should be allowed to continue its flicker. The sentencing mechanism has in fact been a twilight area of our criminal jurisprudence for long. The absence of categorical guidelines in the statute as to when the guilty man is to be executed and when not, has in fact furnished the grounds to argue and question even the constitutionality of the capital punishment at times. But this debate between the "retentionists" on one hand and the "abolitionists" on the other, so far as the constitutionality of the capital punishment is concerned, has been set to rest more than once and we have with us the Apex Court's constitutional Bench to answer these objections "Bachan Singh vs. State of Punjab (supra). In the light of the "law of the land" as it stands today, it is no more open for us to give a second look on the contention that the capital punishment is a violation of Article 14,15 or 21. The farmers of the Constitution were themselves cognizant of the existence of death penalty as is apparent in the language of Article 21 itself which read as under : "No person shall be deprived of his life or personal liberty except according to procedure established by law".
84. The authors of the Constitution themselves did not consider death sentence as a degrading punishment which would defile the dignity of individual as contemplated by the Preamble of the Constitution. The various checks and balances like Article 134 of the Constitution giving the right of appeal to the Supreme Court to a person whose acquittal by the trial court has been converted into death sentence and also the provision which makes it obligatory on the trial court to send up the reference to the High Court for confirmation of death sentence before it may be executed, make it manifestly clear that the death penalty is neither arbitrary nor fanciful nor oppressive per se.
85. But while it is entirely one thing to uphold the constitutionality of the extreme punishment as such, it is entirely a different question to decide as to how and when is this extreme sentence to be awarded in a given case. We cannot be oblivious to Section 354(3) of Code of Criminal Procedure, 1973 which makes a complete paradigm shift in the legislative policy which hitherto governed the former Criminal Procedure Code of 1898. The amended Code of Criminal Procedure, 1973 makes life imprisonment the normal punishment for murder and declares the death penalty as an exception to be awarded only on special reasons. The introduction of pre-sentence hearing is also strong indication to the courts to cognitate deeply before awarding that extreme sentence. It is this significant swing in the legislative policy which in its turn inspired the evolution of "rarest of rare" case theory on the judicial side. The Hon'ble Apex Court has from time to time laid down the guidelines which may constitute the "special reasons" for awarding death sentence. The circumstances and nature of the murder which will brand the crime as the one which falls in the "rarest of rare" category has also been delineated by the Apex Court in a number of cases. But there are several pronouncement of the Hon'ble Apex Court which emphasize that while passing the sentence, it is not less important to take into account the circumstances of the offender too, who committed the offence. In fact, it has been repeatedly held that before awarding the sentences the court has to draw a balance sheet of aggravating circumstances of the crime and the mitigating circumstances of the criminal. This by its very nature has got to be a very sensitive judicial exercise. A little tip this side or a little wrong push on the other, may extenuate the sentence or enhance the punishment. The lack of very comprehensive information as to the characteristics and background of the offender is a common deficiency confronted by the courts and recognized even by the law Commission in its 48th Report.
86. Now reverting back to the facts of the present case in question, we have nothing on the record to show that the appellants ever in their lives were charged or prosecuted, much less than convicted for having committed any other offence minor or major whatsoever. That gives us reason to believe that the appellants despite the pressing needs of money did not plunge in the lawless life of some thief or a burglar. The evidence on record is suggestive of the fact that the accused in question were definitely not well-to-do men and were in fact constantly struggling to get some small piece of land in their possession. The very nature of the root of discord, a petty scrabble to possess some small holding of petty valuation is a definite indication that the accused persons were poverty stricken men. It is really a hard task for a well -to-do man to imagine the trauma and the pangs which penury brings to life. The spectre of starvation looms large on the family and even the major ailments remain medically unattended and untreated. The woes and abject conditions of privacy cannot be over-described. Then comes the background of education. The record shows that the accused are illiterate persons. The powers of rationalization which the modern education may reasonably impart to a man's thinking process, remained foreign to the delinquents at hand. Killing is a symbol of ones most emphatic disapproval about something. It is a relic of primitive ways of life full of savavery but is unfortunately still lingering in the minds of those illiterates who spend their lives in the murky darkness of uneducation and poverty so conspicuous to our sequestered Indian villages. We can also not be unmindful to a distinction which separates crimes committed habitually, repeatedly as a matter of course or vocation and the crimes which get committed once in a life time under the effect of some volatile temper or as the consequence of an unregulated frenzy of some uncontrolled mind in a fit of frustration and anger. The crimes falling in the former category are those which are systematically committed by habitual offenders while those falling in the later category are those which may get committed under conspicuous circumstances of some complicated domestic origin. A little restraint on feelings, a little discipline of impulses, a little control of emotion and a wise rationalization of the causes of dispute could have averted many a dastardly crime. The present incident is also of the some class and kind. Blood taking its own blood! There is something terribly wrong in our society indeed.
87. In connection with the above, we have given our anxious consideration to the age of the appellants, family back ground, criminal history, conduct of the appellants immediately after the crime and during trial, motive behind the offence, the manner in which the offence was committed, the weapon used in committing it and have all been taken into consideration.
88. The accused persons were not criminals. They were real brothers. They have no criminal history. It must be noted that the discretion given to the court in such cases assumes onerous importance and its exercise becomes extremely difficult because of the irrevocable character of death penalty. One of the principles which we think is clear is that the case is such where two views ordinarily could be taken, imposition of death sentence would not be appropriate, but where there is no other option and it is shown that reformation is not possible, death sentence may be imposed.
89. We are of the view that it could not be said that the accused could not be reformed, particularly, because their antecedents were clean or at least the prosecution was unable to point out any criminal activity in the past on the part of the accused persons.
90. When two views were possible about the quantum of sentence, the view which favoured the grant of life in comparison with death sentence is generally accepted for the exercise of the powers by the High Court in commuting the death sentence.
91. In this context, we would like to quote the words of great souls:
"fo=kL;ekuk% lqd`rks u dkekn~ ?kfUr nq'd`rhu A lqd`rsuSo jktkuks Hkwf;'Ba 'kklrs izKk% AA25AA"
¼egkHkkjr] 'kkfUrioZ v/;k;&267 'yksd&25½ tc iztk esa n.Mdk Hk; mRiUu fd;k tkrk gS] rc og lrdeZijk;.k gksrh gS% vr% Hk; fn[kkdj iztk dks /keZ esa yxkuk gh n.M dk m}s'; gS] fdlh dk izk.k ysuk ugha A jktkyksx viuh bPNk ls nq'Vksa dk o/k ugha djrs gSa A Js'B ujs'k izk;% lRdeksZa vkSj ln~O;ogkjksa }kjk gh nh?kZdkyrd iztk ij 'kklu djrs gSa AA25AA "When the fear of punishment is instilled in the public, then it begins to perform good deeds, so the aim of punishment is to get the public involved in good deeds by showing them the fear of punishment. The kings do not execute the evil people of their own accord. Excellent kings generally rule the people for a long time through good actions and good behaviour."
("The object of a provision for punishment for offences is not to execute the offenders, but to dissuade them from committing offences. Rulers have served long by good deeds only.") Mahabharat, Shanti Parva Chapter 267 Shloke 25 "Thou shalt not kill"-- Jesus "God alone can take life because He alone gives it"-- Mahatma Gandhi "To my mind, it is ultimately a question of respect for life and human approach to those who commit grievous hurts to others. Death sentence is no remedy for such crimes. A more humane and constructive remedy is to remove the culprit concerned from the normal milieu and treat him as a mental case. I am sure a large proportion of the murderers could be weaned away from their path and their mental condition sufficiently improved to become useful citizens. In a minority of cases, this may not be possible. They may be kept in prison houses till they die a natural death. This may cast a heavier economic burden on society than hanging. But I have no doubt that a humane treatment even of a murderer will enhance man's dignity and make society more human"--Lok Nayak Jaiprakash Narain "We shall look upon crime as a disease. Evil will be treated in charity instead of anger. The change will be simple, impressive and grand. Embraced arms of love should replace scaffolding of execution. So the reason, conscious and experience is on the side of abolitionists-" - Victor Hugo "Men's dearest possession is life, and since it is given to him to live but once, he must so live as not to be scared with the shame of a cowardly and trivial past, so live as not to be tortured for years without purpose, that dying he can say, all my life and my strength was given to the first cause in the world the liberation of mankind"-- Ostrovosky.
We would also like to quote the eminent jurist Hon'ble Mr. Justice V.R. Krishna Iyer, Former Judge of the Supreme Court of India :
"The future belongs to life, not to death. Even if a battle is lost, the war may still be won, but never surrender where man is on the cross. Where divinity is in jeopardy, values await crucifixion."
92. It is at times difficult to say whether the death penalty or a life time lifer is a graver punishment. Putting an end to the life even though is a permanent liquidation of men's prisest possession but to remain under the sting of life time sense of guilt and to suffer with the haunting memories of ones own depravity for all his life may sometimes appear to be a more condign punishment. To suffer behind the digny stony walls of prison with no wings of liberty to fly out ever in their lives is perhaps the only way to make the accused realise that the lives which they eliminated were as precious as their own. To suffer lifetime incarceration is perhaps the only way to atone and purge themselves from the horrible crimes they have committed. Perhaps this will be a life worse than death and their existence will become a pain to themselves. They will have to undergo it without any chances of relief. An overall reckoning of all the aggravating and mitigating circumstances persuade us to hold that it will be more appropriate and condign to put accused under the sentence to live rather than to die.
93. Determination, as to what would be the rarest of rare cases, is a difficult task having regard to different legal principles involved in respect thereof. With the aforementioned backdrop, we may notice the circumstances which, in our opinion, should weigh with us for not imposing the extreme penalty.
94. In the perspective of the aforesaid decisions and overall facts and circumstances of the case that the reasons for inflicting the extreme penalty do not constitute special reasons, we are of the view that the case does not fall within the category of rarest of rare cases and it cannot be said that imprisonment for lesser sentence of life term stood altogether foreclosed.
95. Cogitating deeply about the whole scenario of offence and the circumstances of the offenders, we think that the accused should be sentenced to spend all their life in prison instead of being sent to gallows. We have precedents to guide us in this regard where the Hon'ble Apex Court looking into the perfidious nature of the crimes decided to put the offenders in prison not to be released ever.
96. Keeping in view the facts and circumstances of the case and to do complete justice, we are of the considered view that the ends of justice would be met by substituting the death sentence given to the appellants Akhlaq and Aafq by the trial court to imprisonment for life and they shall not be released from prison till the rest of their life.
97. Capital sentence reference is rejected. The appeals are partly allowed. In consequence, the conviction recorded by the learned trial court judge is maintained, but in the facts and circumstances and for reasons recorded above, the sentence of death awarded to the appellants Akhlaq and Afaq by the learned trial court is commuted to imprisonment for life. We direct that the appellants Akhlaq and Afaq shall not be released from prison till the rest of their life.
98. Original judgment shall be placed on the record of Criminal Appeal No. 1726 of 2008 whereas copies thereof shall be placed on the record of other criminal appeals and capital sentence reference.
99. Learned counsel Sri Ashok Pandey, Amicus Curiae, for the appellant Afaq shall be paid Rs.7,500/- as fee.
100. Office is directed to communicate this order to the court concerned within two weeks along with lower court record for compliance and the learned court concerned shall send compliance report to this Court within a month.
101. Before parting with the case, we record our appreciation to the learned counsel for the parties in rendering full assistance to the Court during the course of hearing.
Dated 12.10.2010 Amit/-