Rajasthan High Court - Jaipur
State Of Rajasthan vs Bhajan @ Bahadur Singh S/O Harphool B/C ... on 6 August, 2019
Bench: Sabina, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
1. D.B. Criminal Death Reference No. 3/2019
State Of Rajasthan, Through PP
----Petitioner
Versus
Bhajan @ Bahadur Singh S/o Harphool B/c Meena, R/o Meheton
Ka Pura Thana Kotwali Karauli Dist. Karauli Raj.
----Respondent
2. D.B. Criminal Appeal (SB) No. 2151/2018
1. Bhanwar S/o Harphool Meena B/c Meena, R/o Mehaton Ka
Pura Ps Kotwali Karauli Dist. Karauli Raj. (Presently Confined In
Jail At Karauli)
2. Jeevan Singh S/o Pyare Lal B/c Meena, R/o Mehaton Ka Pura
Ps Kotwali Karauli Dist. Karauli Raj.
3. Naresh S/o Loharkya B/c Meena, R/o Kasara Ps Masalpur Dist.
Karauli Raj.
4. Ganga Ram S/o Baddey Ram B/c Meena, R/o Khoob Nagar Ps
Sadar Karauli Dist. Karauli Raj.
5. Vijendra Singh S/o Mulayam Singh B/c Yadav, R/o Ramnagar
Ps Basrehar Dist. Itawa (Up)
----Petitioners
Versus
State Of Rajasthan Through PP, Raj.
----Respondent
3. D.B. Criminal Appeal (DB) No. 3/2019
Bhajan @ Bahadur Singh S/o Harphool B/c Meena, R/o Mehaton
Ka Pura Ps Kotwali Karauli Dist. Karauli Raj. (Presently Confined
In Central Jail Sevar)
----Petitioner
Versus
State Of Rajasthan Through PP, Raj.
4. D.B. Criminal Appeal (DB) No. 270/2019
Bhajan @ Bahadur Singh S/o Harphool B/c Meena, R/o
Mehaton Ka Pura Police Station Kotwali Karauli Dist. Karauli
Raj. (Presently Confined In Central Jail Sevar)
(Downloaded on 29/08/2019 at 10:38:50 PM)
(2 of 22) [CRLDR-3/2019]
----Petitioner
Versus
State Of Rajasthan Through PP.
----Respondent
For State : Ms. Rekha Madnani Public Prosecutor
For Accused : Mr. Rajneesh Gupta Advocate HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Judgment 06/08/2019 Vide this order above mentioned death reference and three appeals would be disposed of.
FIR No.435 dated 30.09.2012 was registered under Section 302/120-B of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') at Police Station Karauli at the instance of complainant- Durga Lal Meena.
Prosecution story, in brief, as per the FIR was that on 29.09.2012 at about 10.00 p.m., complainant along with nephew Malkhan and brother Amar Singh were present in their cattle yard. About 5-6 dacoits, including Bhajan @ Bahadur Singh from their village, armed with guns came there. Bhajan @ Bahadur Singh alleged that he would kill Amar Singh. Malkhan pleaded that Amar Singh be not killed. Then, Bhajan @ Bahadur Singh fired many shots at Amar Singh, which hit him on his head and other parts of the body. Thereafter, Bhajan @ Bahadur Singh and his brother Bhanwar, Mukesh Meena @ Ambani and Kedar Meena fled away from the spot. Motive behind the occurrence was that the accused (Downloaded on 29/08/2019 at 10:38:50 PM) (3 of 22) [CRLDR-3/2019] had earlier committed murder of his uncle Chiranji about 6/7 years ago.
After completion of investigation and necessary formalities, challan was presented against accused Bhanwar, Bhajan @ Bahadur Singh, Jeevan Singh, Mukesh Meena @ Ambani, Amar Chand, Harphool Meena, Naresh, Ganga Ram, Vijendra Singh and Prithvi Singh.
Charges were framed against accused Bhajan @ Bahadur Singh, Bhanwar and Jeevan Singh under Section 302, 120-B IPC, Section 3/25 of the Arms Act, 1959 (hereinafter referred to as 'the Arms Act') and Section 11 of Rajasthan Dacoity affected Area Act, 1986.
So far as accused Mukesh Meena @ Ambani, Amarchand and Harphool Meena are concerned, charges were framed against them under Sections 302, 120-B IPC and Section 11 of Rajasthan Dacoity affected Area Act, 1986.
So far as accused Naresh, Ganga Ram and Vijendra Singh are concerned, charges were framed against them under Section 216 IPC and Section 11 of Rajasthan Dacoity affected Area Act, 1986.
So far as accused Amarchand, Prithvi Singh and Harphool Meena are concerned, charges were framed against them under Section 302 read with Section 120-B IPC and Section 11 Rajasthan Dacoity affected Area Act, 1986.
Accused did not plead guilty to the charges framed against them and claimed trial.
In order to prove its case, prosecution examined 24 witnesses, during trial. Accused when examined under Section (Downloaded on 29/08/2019 at 10:38:50 PM) (4 of 22) [CRLDR-3/2019] 313 of Code of Criminal Procedure, 1973, prayed that they were innocent and had been falsely involved in this case.
Trial Court vide judgment/order dated 13.11.2018 ordered the acquittal of accused Mukesh Meena @ Ambani, Amarchand, Harphool Meena, and Prithvi Singh. Accused Bhajan @ Bahadur Singh was awarded death penalty under Section 302 IPC. He was also convicted and sentenced under Section 3/25 of the Arms Act. Accused-Bhanwar and Jeevan Singh were convicted and sentenced qua offence punishable under Section 3/25 of the Arms Act. Accused-Naresh, Ganga Ram, Vijendra Singh were convicted and sentenced qua offence punishable under Section 216 IPC.
Hence, death reference has been received with regard to death penalty imposed on accused Bhajan @ Bahadur Singh. Accused have also filed appeals challenging their conviction and sentence as ordered by the trial court.
So far as Bhajan @ Bahadur Singh is concerned, on 01.04.2019 following order was passed by this court:-
"Bhanwar son of Harphool Meena, Bhajan @ Bahadur Singh son of Harphool Meena, Jeevan Singh son of Pyarelal, Mukesh Meena @ Ambani son of Ramjilal, Amarchand son of Harphool Meena, Harphool son of Basanta, Naresh son of Loharkya, Gangaram son of Baddeyram, Vijendra Singh son of Mulayam Singh and Prithvi Singh son of Halkeram were tried by the court of Special Judge, Dacoity Affected Area Cases, Karauli. The said court vide impugned judgment dated 13.11.2018 convicted Bhajan @ Bahadur Singh son of Harphool for the offences under Section 302 IPC and Section 3/25 of Arms Act. The accused Bhanwar son of Harphool Meena and Jeevan Singh son of Pyarelal were convicted for the offence under Section 3/25 of Arms Act, whereas accused Naresh (Downloaded on 29/08/2019 at 10:38:50 PM) (5 of 22) [CRLDR-3/2019] son of Loharkya, Gangaram son of Baddeyram and Vijendra Singh son of Mulayam Singh were convicted for the offence under Section 216 IPC.
The accused Bhanwar son of Harphool Meena, Jeevan Singh son of Pyarelal, Mukesh Meena @ Ambani son of Ramjilal, Amarchand son of Harphool, Harphool son of Basanta and Prithvi were acquitted for the offences under Sections 302 read with Section 34 and Section 120B IPC. The accused Bhajan @ Bahadur Singh was also acquitted of offence under Section 120B IPC. All accused were also acquitted of offence under Section 11 of Rajasthan Dacoity Affected Areas Act, 1986.
Having convicted the appellants for the above said offences, the trial Judge vide a separate order of even date, sentenced Bhanwar son of Harphool Meena, Naresh son of Loharkya, Gangaram son of Baddeyram and Vijendra Singh son of Mulayam Singh to the period already undergone. The accused appellant Bhajan @ Bahadur Singh son of Harphool was awarded death sentence.
Similarly, Bhanwar son of Harphool Meena, Bhajan @ Bahadur Singh son of Harphool and Jeevan Singh son of Pyarelal were sentenced to undergo three years RI and to pay a fine of Rs.10,000/- each and in default thereof to further undergo six months SI. Accused Naresh son of Loharkya, Gangaram son of Baddeyram and Vijendra Singh son of Mulayam Singh for the offence under Section 216 IPC were sentenced to undergo three years RI and to pay a fine of Rs.10,000/- each, in default thereof to undergo six months SI.
The court of Special Judge, Dacoity Affected Areas Cases, Karauli under Section 366 Cr.P.C. has sent the order of award of Death sentence to us for confirmation. The said reference has been assigned D.B. Cr. Death Reference No.7/2018. Bhajan @ Bahadur Singh to assail his conviction and sentence has also filed D.B. Cr. Appeal No. 3/2019. Bhanwar, Jeevan Singh, Naresh, Gangaram and (Downloaded on 29/08/2019 at 10:38:50 PM) (6 of 22) [CRLDR-3/2019] Vijendra Singh to assail their conviction and sentence have filed D.B. Cr. Appeal No. 2151/2018.
In the present case, judgment of conviction was delivered on 13.11.2018 and immediately after delivery of the judgment, accused were heard on quantum of sentence and the trial Judge then and there, awarded Death sentence upon the appellant Bhajan @ Bahadur Singh.
Mr. S.K. Gupta, learned counsel appearing for the appellants has submitted that the order of sentence cannot be sustained as it was incumbent for the trial Judge to adjourn the matter to enable the accused to lead evidence. Mr. Gupta has submitted that the trial Judge without taking any evidence into consideration regarding conduct of the appellant has relied upon conjunctures and surmises to comment upon the conduct of the appellant Bhajan @ Bahadur Singh.
We find merit in the contention of the learned counsel for the appellant.
Supreme Court in Ajay Pandit and Ors. vs. State of Maharashtra, AIR 2012 SC 3422, has held as under:-
"25. Section 235 Code of Criminal Procedure in its entirety is extracted for reference:
"235. Judgment of acquittal or conviction -
(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360 hear the accused on the question of sentence, and then pass sentence on him according to law."
The necessity of inserting Sub-section (2) was highlighted by the Law Commission in its 41st Report which reads as follows:
(Downloaded on 29/08/2019 at 10:38:50 PM)
(7 of 22) [CRLDR-3/2019] "It is now being increasingly recognized that a rational and consistent sentencing policy requires the removal of several deficiencies in the present system. One such deficiency is the lack of comprehensive information as to the characteristics and background of the offender. The aims of sentencing become all the more so in the absence of information on which the correctional process is to operate. The public as well as the courts themselves are in the dark about the judicial approach in this regard. We are of the view that the taking of evidence as to the circumstances relevant to sentencing should be encouraged, and both the prosecution and the accused should be allowed to co-operate in the process. The Law Commission in its Report had opined that the taking of evidence as to the circumstances relevant to sentencing should be encouraged in the process. The Parliament, it is seen, has accepted the recommendation of the Law Commission fully and has enacted Sub-section (2).
26. The scope of the abovementioned provision has come up for consideration before the Apex Court on various occasions. Reference to few of the judgments is apposite. The courts are unanimous in their view that Sub-section (2) of Section 235 clearly states that the hearing has to be given to the accused on the question of sentence, but the question is what is the object and purpose of hearing and what are the matters to be elicited from the accused. of course, full opportunity has to be given to produce adequate materials before the Court and, if found, necessary court may also give an opportunity to lead evidence. Evidence on what, the evidence which has some relevance on the question of sentence and not on conviction. But the further question to be examined is whether, in the absence of adding any materials by the accused, has the Court any duty to elicit any information from whatever sources before awarding sentence, especially capital punishment. Psychological trauma which a convict undergoes on hearing that he would be awarded capital sentence, that is, death, has to be borne in mind, by the court. Convict could be a completely shattered person, may not be in his normal senses, may be dumbfound, unable to speak anything. Can, in such a situation, the court presume that he has nothing to speak or mechanically record what he states, (Downloaded on 29/08/2019 at 10:38:50 PM) (8 of 22) [CRLDR-3/2019] without making any conscious effort to elicit relevant information, which has some bearing in awarding a proper and adequate sentence. Awarding death sentence is always an exception, only in rarest of rare cases.
27. In Santa Singh (AIR 1976 SC 2386) (supra), this Court has extensively dealt with the nature and scope of Section 235(2) Code of Criminal Procedure stating that such a provision was introduced in consonance with the modern trends in penology and sentencing procedures. The Court noticed today more than ever before, sentencing has become a delicate task, requiring an inter-disciplinary approach and calling for skills and talents very much different from those ordinarily expected of lawyers. In Santa Singh, (supra) the Court found that the requirements of Section 235(2) were not complied with, inasmuch as no opportunity was given to the Appellant, after recording his conviction, to produce material and make submissions in regard to the sentence to be imposed on him. The Court noticed in that case the Sessions Court chose to inflict death sentence on the accused and the possibility could not be ruled out that if the accused had been given an opportunity to produce material and make submissions on the question of sentence, as contemplated by Section 235 (2), he might have been in a position to persuade the Sessions Court to impose a lesser penalty of life imprisonment. The Court, therefore, held the breach of the mandatory requirement of Section 235 (2) could not, in the circumstances, be ignored as inconsequential and it can vitiate the sentence of death imposed by the Sessions Court. The Court, therefore, allowed the appeal and set aside the sentence of death and remanded the case to the Sessions Court with a direction to pass appropriate sentence after giving an opportunity to the accused to be heard. Further, in Santa Singh, the Court also held as follows:
"The hearing contemplated by Section 235 (2) is not confined merely to hearing oral submissions, but it is also intended to give an opportunity to the prosecution and the accused to place before the court facts and material relating to various factors bearing on the question of sentence and if they are contested by either side, then to produce evidence for the purpose of establishing the same."(Downloaded on 29/08/2019 at 10:38:50 PM)
(9 of 22) [CRLDR-3/2019]
28. The above issue again came up before this Court in Dagdu and ors. v. State of Maharashtra; (1977) 3 SCC 68: (AIR 1977 SC 1579); wherein the three Judges Bench, referring to the judgment in Santa Singh (AIR 1976 SC 2386, held as follows:
"The Court on convicting an accused must unquestionably hear him on the question of sentence. But if, for any reason, it omits to do so and the accused makes a grievance of it in the higher court, it would be open to that court to remedy the breach by giving a hearing to the accused on the question of sentence."
It further held as follows:
"...for a proper and effective implementation of the provision contained in Section 235 (2), it is not always necessary to remand the matter to the court which has recorded the conviction....Remand is an exception, not a rule, and ought therefore to be avoided as far as possible in the interests of expeditious, though fair, disposal of cases."
29. Again in Muniappan v. State of Tamil Nadu; AIR 1981 SC 1220; this Court held as follows:
"The obligation to hear the accused on the question of sentence which is imposed by Section 235 (2) of the Code of Criminal Procedure is not discharged by putting a formal question to the accused as to what he has to say on the question of sentence. The Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence."
30. Later, in Allauddin Mian and Ors. v. State of Bihar; (1989) 3 SCC 5: (AIR 1989 SC 1456), this Court also considered the effect of non-compliance of Section 235 (2) Code of Criminal Procedure and held that the provision is mandatory. The operative portion of the judgment reads as follows:
"The requirement of hearing the accused is intended to satisfy the rule of natural justice. It is a (Downloaded on 29/08/2019 at 10:38:50 PM) (10 of 22) [CRLDR-3/2019] fundamental requirement of fair play that the accused who was hitherto concentrating on the prosecution evidence on the question of guilt should, on being found guilty, be asked if he has anything to say or any evidence to tender on the question of sentence. This is all the more necessary since the Courts are generally required to make the choice from a wide range of discretion in the matter of sentencing. To assist the Court in determining the correct sentence to be imposed the legislature introduced Sub-section (2) to Section 235. The said provision therefore satisfies a dual purpose; it satisfies the rule of natural justice by according to the accused an opportunity of being heard on the question of sentence and at the same time helps the Court to choose the sentence to be awarded. Since the provision is intended to give the accused an opportunity to place before the Court all the relevant material having a bearing on the question of sentence there can be no doubt that the provision is salutary and must be strictly followed. It is clearly mandatory and should not be treated as a mere formality."
31. Later, three Judges Bench in Malkiat Singh v. State of Punjab; (1991) 4 SCC 341 indicated the necessity of adjourning the case to a future date after convicting the accused and held as follows:
"On finding that the accused committed the charged offences, Section 235 (2) of the Code empowers the Judge that he shall pass sentence on him according to law on hearing him. Hearing contemplated is not confined merely to oral hearing but also intended to afford an opportunity to the prosecution as well as the accused to place before the Court facts and material relating to various factors on the question of sentence and if interested by either side, to have evidence adduced to show mitigating circumstances to impose a lesser sentence or aggravating grounds to impose death penalty. Therefore, sufficient time must be given to the accused or the prosecution on the question of sentence, to show grounds on which (Downloaded on 29/08/2019 at 10:38:50 PM) (11 of 22) [CRLDR-3/2019] the prosecution may plead or the accused may show that the maximum sentence of death may be the appropriate sentence or the minimum sentence of life imprisonment may be awarded, as the case may be."
32. This Court in a recent judgment in Rajesh Kumar, (AIR 2011 SC (Cri) 2268: 2011 AIR SCW 5997) (supra) examined at length the evaluation of sentencing policy and the concept of mitigating circumstances in India relating to the death penalty. The meaning and content of the expression "hearing the accused" under Section 235 (2) and the scope of Sections 354 (3) and 465 Code of Criminal Procedure were elaborately considered. The Court held that the object of hearing under Section 235 (2) Code of Criminal Procedure being intrinsically and inherently connected with the sentencing procedure, the provisions of Section 354 (3) Code of Criminal Procedure which calls for recording of special reason for awarding death sentence, must be read conjointly. The Court held that such special reasons can only be validly recorded if an effective opportunity of hearing as contemplated under Section 235 (2) Code of Criminal Procedure is genuinely extended and is allowed to be exercised by the accused who stands convicted and is awaiting the sentence.
33. In our view, the principles laid down in the above cited judgments squarely applies on the question of awarding of sentence and we find from the records that the High Court has only mechanically recorded what the accused has said and no attempt has been made to elicit any information or particulars from the accused or the prosecution which are relevant for awarding a proper sentence. The accused, of course, was informed by the Court of the nature of the show-cause-notice. What was the nature of show cause notice? The nature of the show-cause-notice was whether the life sentence awarded by the trial court be not enhanced to death penalty. No genuine effort has been made by the Court to elicit any information either from the accused or the prosecution as to whether any circumstance exists which might influence the Court to avoid and not to award death sentence. Awarding death sentence is an exception, not the rule, and only in rarest of rare cases, the Court could award death sentence. The state of mind of a person awaiting death sentence and the state of mind of a person who has been awarded life sentence may not be the (Downloaded on 29/08/2019 at 10:38:50 PM) (12 of 22) [CRLDR-3/2019] same mentally and psychologically. The court has got a duty and obligation to elicit relevant facts even if the accused has kept totally silent in such situations. In the instant case, the High Court has not addressed the issue in the correct perspective bearing in mind those relevant factors, while questioning the accused and, therefore, committed a gross error of procedure in not properly assimilating and understanding the purpose and object behind Section 235 (2) Code of Criminal Procedure.
34. In such circumstances, we are inclined to set aside the death sentence awarded by the High Court and remit the matter to the High Court to follow Section 235 (2) Code of Criminal Procedure in accordance with the principles laid down. The conviction awarded by the High Court, however, stands confirmed. The High Court is requested to pass fresh orders preferably with a period of six months from the date of the receipt of the copy of this order. The appeal is allowed to that extent."
Without examining the merits of the appeal filed by the accused, and without determining whether the accused appellants have been rightly convicted or not, in the light of the judgment rendered by the Supreme Court in Ajay Pandit (supra), on the touch stone of Section 235 (2) Cr.P.C., we set aside the order of sentence dated 13.11.2018 whereby Death sentence was awarded upon Bhajan @ Bahadur Singh and remit the matter to the trial court to pass fresh order of sentence qua Bhajan @ Bahadur Singh by following the mandate of Section 235 (2) Cr.P.C. in the light of the observations made by the Supreme Court in the case of Ajay Pandit (supra). Needless to say, the trial Judge shall afford opportunity to both the prosecution and the accused to lead evidence to prove aggravating and mitigating circumstances.
In view of above, D.B. Cr. Death Reference No.7/2018 is declined. D.B. Cr. Appeal (SB) No.2151/2018 and D.B. Cr. Appeal (DB) No. 3/2019 are kept pending."
(Downloaded on 29/08/2019 at 10:38:50 PM)
(13 of 22) [CRLDR-3/2019] After remand, trial court has again maintained death penalty awarded to accused Bhajan @ Bahadur Singh under Section 302 IPC and appeal has also been preferred by accused Bhajan @ Bahadur Singh against the order dated 10.06.2019.
Learned State counsel has submitted that the death penalty awarded to accused Bhajan @ Bahadur Singh was liable to be maintained. The murder had been committed in a cold blooded manner. There was no provocation at the instance of the deceased. Deceased was unarmed, whereas, accused had come to the spot armed with a firearm. Accused is a habitual offender and is involved in number of other criminal cases. In support of her arguments, learned State counsel has placed reliance on the judgment of Hon'ble Supreme Court in B.A. Umesh Vs. Regr. Gen. High Court of Karnataka In Criminal Appeal No.285- 286 of 2011 decided on 01.02.201, wherein, it was held as under:-
"On the question of sentence we are satisfied that the extreme depravity with which the offences were committed and the merciless manner in which death was inflicted on the victim, brings it within the category of rarest of rare cases which merits the death penalty, as awarded by the Trial Court and confirmed by the High Court. None of the mitigating factors as were indicated by this Court in Bachan Singh's case (supra) or in Machhi Singh's case (supra) are present in the facts of the instant case. The appellant even made up a story as to his presence in the house on seeing P.W.2 Suresh, who had come there in the meantime. Apart from the above, it is clear from the recoveries made from his house that this was not (Downloaded on 29/08/2019 at 10:38:50 PM) (14 of 22) [CRLDR-3/2019] the first time that he had committed crimes in other premises also, before he was finally caught by the public two days after the present incident, while trying to escape from the house of one Seeba where he made a similar attempt to rob and assault her and in the process causing injuries to her. As has been indicated by the Courts below, the antecedents of the appellant and his subsequent conduct indicates that he is a menace to society and is incapable of rehabilitation. The offences committed by the appellant were neither under duress nor on provocation and an innocent life was snuffed out by him after committing violent rape on the victim. He did not feel any remorse in regard to his actions, inasmuch as, within two days of the incident he was caught by the local public while committing an offence of a similar type in the house of one Seeba.
Learned counsel for the accused has submitted that the prosecution had failed to prove its case. All the accused have been falsely involved in this case. Learned counsel has further submitted that the death penalty awarded to accused Bhajan @ Bahadur Singh was liable to be set aside. Accused- Naresh, Ganga Ram and Vijendra Singh had been arrested after two months of the incident. Hence, they were liable to be acquitted of the charges framed against them. No independent witness has been examined at the time of their arrest. Persons were allegedly present with the Investigating Officer at the time of their arrest, but their statements had not been recorded. So far as the recovery of firearms from the accused is concerned, the armourer has deposed in his cross-examination that he had not fired from the recovered weapons. In support of his arguments, learned (Downloaded on 29/08/2019 at 10:38:50 PM) (15 of 22) [CRLDR-3/2019] counsel has placed reliance on the judgment of Hon'ble Supreme Court in Rajendra Pralhadrao Wasnik Vs. State of Maharashtra (2019 AIR (SC) 1, wherein, it was held as under:-
"Insofar as the present petition is concerned, we are of opinion that for the purposes of sentencing, the Sessions Judge, the High Court as well as this Court did not take into consideration the probability of reformation, rehabilitation and social re-integration of the appellant into society. Indeed, no material or evidence was placed before the courts to arrive at any conclusion in this regard one way or the other and for whatever it is worth on the facts of this case.The prosecution was remiss in not producing the available DNA evidence and the failure to produce material evidence must lead to an adverse presumption against the prosecution and in favour of the appellant for the purposes of sentencing. The Trial Court was also in error in taking into consideration, for the purposes of sentencing, the pendency of two similar cases against the appellant which it could not, in law, consider. However, we also cannot overlook subsequent developments with regard to the two (actually three) similar cases against the appellant.
Learned counsel has next placed reliance on the decision of Hon'ble Supreme Court in M.A. Antony @ Antappan Vs. State of Kerala 2019 (1) RCC (SC) 9, wherein, it was held as under:-
"On an overall consideration of the facts of the case from the point of view of the crime and the criminal, we are of opinion that even though the case may be one of circumstantial evidence, it is now well settled that by itself is not enough to convert a (Downloaded on 29/08/2019 at 10:38:50 PM) (16 of 22) [CRLDR-3/2019] sentence of death into a sentence of imprisonment for life. We have held so in Rajendra Pralhadrao Wasnik and do not feel the necessity of repeating what has already been said.
We are also of opinion that all the courts including this Court overlooked consideration of the probability of reform or rehabilitation and social reintegration of the appellant into society. There is no meaningful discussion on why, if at all, the appellant could not be reformed or rehabilitated.
The Trial Court was in error proceeding on the basis, while awarding a sentence of death to the appellant by observing that he was a hardened criminal. There is no such evidence on material or on record.
The socio-economic condition of the appellant was a significant factor that ought to have been taken into consideration by the Trial Court as well the High Court while considering the punishment to be given to the appellant. While the socio-economic condition of a convict is not a factor for disproving his guilt, it is a factor that must be taken into consideration for the purposes of awarding an appropriate sentence to a convict.
We do not think it necessary to consider on the facts of this case, the period of incarceration of the appellant as a factor for deciding whether or not he should be awarded the death sentence. This is a factor that ought to have been placed before the Trial Judge and while we could certainly take this into consideration, we hesitate to do so in view of some uncertainty in this regard. In Ramesh v. State of Rajasthan, (2011) 3 SCC 685 an opinion was expressed in paragraph 76 of the Report that since the appellant therein had been languishing on death row for more than six years that would be a mitigating circumstance in his favour. There are a (Downloaded on 29/08/2019 at 10:38:50 PM) (17 of 22) [CRLDR-3/2019] number of cases where convicts have been on death row for more than six years and if a standard period was to be adopted, perhaps each and every person on death row might have to be given the benefit of commutation of death sentence to one of life imprisonment. The long delays in courts must, of course, be taken into account, but what is needed is a systemic and systematic reform in criminal justice delivery rather than ad hoc or judge-centric decisions.
In view of the above discussion, the death sentence awarded to the appellant is converted into a sentence of imprisonment for life."
Complainant-Durga Lal Meena while appearing in the witness box as PW-1 deposed that on 29.09.2012, he was present in the cattleshed along with Amar Singh and Malkhan. At about 8/9 p.m., Bhajan @ Bahadur Singh (from their village), came there. Bhajan @ Bahadur Singh was armed with a gun. Bhajan @ Bahadur Singh enquired as to who was present there from the family of Kunti and Chiranji. Complainant told him that only Amar Singh was present there. Then, Bhajan @ Bahadur Singh said that he would murder Amar Singh. He pleaded before Bhajan @ Bahadur Singh not to commit the murder, but Bhajan @ Bahadur Singh did not pay any heed to his requests. Then, Bhajan @ Bahadur Singh fired at Amar Singh and the shot hit Amar Singh on his head and he fell down. Thereafter, Bhajan @ Bahadur Singh fired more shots at Amar Singh and, thereafter, he fled away from the spot. He had not seen any other person accompanying Bhajan @ Bahadur Singh.
PW-2 Malkhan did not support the prosecution case, during trial and was declared hostile.
PW-3 Shiksha (daughter of Amar Singh), PW-4 Rajo (wife of Amar Singh), PW-5 Bhoor Singh (relative of Amar Singh), PW-6 (Downloaded on 29/08/2019 at 10:38:50 PM) (18 of 22) [CRLDR-3/2019] Bal Govind (brother of Amar Singh) and PW-7 Amrit Lal (son of Amar Singh) have deposed that they were informed on 29.09.2012 at about 11.00 p.m. that Bhajan @ Bahadur Singh, Bhanwar, Jeevan Singh, Kedar, Mukesh Meena @ Ambani, Jawahar and Prithvi Singh had fired at Amar Singh and had murdered him. The said witnesses in their cross-examination deposed that they had not witnessed the occurrence.
PW-9 Doctor Vijay Singh deposed that on 30.09.2012, he had conducted postmortem examination on the dead body of Amar Singh. He proved the postmortem examination report Exhibit-P-34. A perusal of Exhibit-P-34 reveals that the deceased had suffered ten firearm injuries. Out of the said injuries, injury Nos.1, 3, 5, 8 and 9 are entry wounds, whereas, injury Nos.2, 4, 6, 7 and 10 are exit wounds. The cause of death of the deceased was shock brought about as a result of multiple injuries suffered by him.
The other witnesses have deposed with regard to the investigation conducted in the present case.
So far as accused Bhajan @ Bahadur Singh is concerned, ocular version is duly corroborated by medical evidence. PW-1 Durga Lal Meena has categorically deposed that accused Bhajan @ Bahadur Singh had come to the spot armed with a gun and had fired many shots at Amar Singh. The said witness was cross- examined at length but his testimony with regard to involvement of appellant Bhajan @ Bhadur Singh in the crime could not be shaken. As per the postmortem examination report of deceased Amar Singh, he had suffered firearm injuries.
As per Exhibit-P-45 Seizure memo, one 315 bore gun with 70 live cartridges of 315 bore gun were recovered on the basis of his (Downloaded on 29/08/2019 at 10:38:50 PM) (19 of 22) [CRLDR-3/2019] disclosure statement suffered by accused Bhajan @ Bahadur Singh under Section 27 of Indian Evidence Act, 1872 vide Exhibit-P-78.
Exhibit-P-70 is the report of Forensic Science Laboratory with regard to examination of four empty cartridge cases recovered from the spot with .315 bore rifle taken in possession by the police at the instance of accused Bhajan @ Bahadur Singh. As per the said report, the recovered cartridge cases had been fired from the .315 bore rifle recovered from accused Bhajan @ Bahadur Singh.
Thus, in the present case, so far as accused Bhajan @ Bahadur Singh is concerned, he has been rightly convicted qua offence punishable under Section 302 IPC and Section 3/25 of the Arms Act.
The next question that arises for consideration is as to whether death penalty awarded to accused Bhajan @ Bahadur Singh by the trial court is liable to be upheld. So far as accused Bhajan @ Bahadur Singh is concerned, there are other criminal cases pending against him, but admittedly, he is not a previous convict. Trial court has not explored the possibility of reformation of the accused.
During the course of arguments, it has been pointed out that accused Bhajan @ Bahadur Singh has got one son aged about 10 years and daughter aged about 8 years. Presently, wife of the accused is looking after the minor children. Accused had committed the offence on account of previous enmity, but had not fired at other persons present at the spot along with deceased Amar Singh.
In the facts and circumstances of the present case, we are of the considered opinion that death sentence is not called for. The (Downloaded on 29/08/2019 at 10:38:50 PM) (20 of 22) [CRLDR-3/2019] present case cannot be termed as one of the rarest of the rare case inviting death penalty.
Accordingly, while upholding the conviction of the accused Bhajan @ Bahadur Singh for offence under Section 302 IPC, we set aside the death sentence awarded to him. With regard to offence under Section 302 IPC, the sentence of death awarded to accused Bhajan @ Bahadur Singh is converted to imprisonment for life. The sentence qua fine is maintained. So far as conviction and sentence of accused Bhajan @ Bahadur Singh under Section 3/25 of the Arms Act are concerned, the same are maintained. D.B. Criminal Death reference No.3/2019 is declined and D.B. Criminal Appeals No.3/2019 and 270/2019 stand disposed of accordingly.
So far as accused Vijendra Singh, Ganga Ram and Naresh are concerned, they have been convicted and sentenced qua offence punishable under Section 216 IPC. The said appellants were arrested on 22.11.2012, as is evident from their arrest memo Exhibits-P-52 to 54. The said accused were arrested after about two months of the occurrence and there is no evidence that they had participated in the occurrence.
Moreover, PW-24 Anoop Singh, Investigating Officer in his cross-examination deposed that when the said accused were arrested, he had not recorded the statements of the persons accompanying him. He further submitted that he himself was the witness as well as the Investigating Officer qua the said accused.
Keeping in view the facts and circumstances of the present case, we are of the opinion that so far as accused Vijendra Singh, Ganga Ram and Naresh are concerned, they are liable to be (Downloaded on 29/08/2019 at 10:38:50 PM) (21 of 22) [CRLDR-3/2019] acquitted of the charge framed against them under Section 216 IPC.
So far as conviction of Accused Bhanwar and Jeevan Singh under Section 3/25 of the Arms Act is concerned, accused Bhanwar was arrested on 29.11.2012 vide Exhibit-P-51 and accused Jeevan Singh was arrested on 22.11.2012 vide Exhibit-P-
50. On the basis of disclosure statement suffered by accused Jeevan Singh under Section 27 of The Indian Evidence Act, 1872 on 29.11.2012, one country made single barrel gun was recovered and the same was taken in possession vide memo Exhibit-P-39. On the basis of disclosure statement suffered by accused Bhanwar on 05.12.2012 Exhibit-P-76, one gun, four live cartridges and four empty cartridges were recovered and the same were taken in possession vide memo Exhibit-P-55. When accused Bhanwar was arrested at that time, 60 live cartridges of 315 bore gun were recovered from him on 29.11.2012.
PW-18 Armourer has deposed that he had examined the articles recovered from accused Bhanwar and Jeevan Singh and the firearms recovered from the accused were in a working condition.
Thus, so far as accused Bhanwar and Jeevan Singh are concerned, they were rightly convicted qua offence punishable under Section 3/25 of the Arms Act. However, sentence awarded to the said accused is liable to be reduced from rigorous imprisonment for three years to rigorous imprisonment for one year.
Accordingly, D.B. Criminal Appeal No.2151/2018 is partly allowed. Accused Naresh, Ganga Ram and Vijendra Singh are acquitted and their conviction and sentence vide the impugned (Downloaded on 29/08/2019 at 10:38:50 PM) (22 of 22) [CRLDR-3/2019] judgment/order dated 13.11.2018 under Section 216 IPC are set aside.
So far as Accused Bhanwar and Jeevan Singh are concerned, their conviction under Section 3/25 of the Arms Act as ordered by the trial court is upheld. However, their sentence is reduced from rigorous imprisonment for three years to rigorous imprisonment for one year with fine of Rs.10,000/-. It is further ordered that in default of payment of fine, they shall further undergo rigorous imprisonment for one month instead of six months.
(GOVERDHAN BARDHAR)J. (SABINA)J.
S.Kumawat-17-19
(Downloaded on 29/08/2019 at 10:38:50 PM)
Powered by TCPDF (www.tcpdf.org)