Rajasthan High Court - Jaipur
Ram Prasad Sahu S/O Shri Durga Lal Sahu ... vs State Of Rajasthan on 12 September, 2019
Bench: Sabina, Narendra Singh Dhaddha
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
1. D.B. Criminal Death Reference No. 2/2019
State Of Rajasthan, Through PP
----Appellant
Versus
Ramprasad Sahu S/o Durgalal Sahu B/c Teli, Aged About 37 Years,
R/o Gav Kukkad Teh. Todaraisingh Dist. Tonk Raj. At Present Serve
No 442 Shriram Teela Kachi Basti Batta Basti Jaipur
----Respondent
2. D.B. Criminal Appeal No. 219/2019
Ram Prasad Sahu S/o Shri Durga Lal Sahu B/c Teli, Aged About 37
Years, R/o Vill. Kukkad Teh. Todaraisingh Dist. Tonk At Present
Survey No 442 Shri Ram Tila Kachchi Basti Bhatta Basti Jaipur (At
Present Confined At Central Jail Jaipur)
----Appellant
Versus
State Of Rajasthan, Through PP
----Respondent
For Accused (s) : Mr. Vikas Saini Advocate
For State : Ms. Rekha Madnani, Public Prosecutor
HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA Judgment 12/09/2019 Vide this order, above mentioned death reference as well as appeal filed by the accused against the judgment/order dated 27.05.2019 passed by the trial court, whereby, accused was convicted qua offence punishable under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and was sentenced to death. (Downloaded on 06/06/2021 at 08:15:29 PM)
(2 of 15) [CRLAD-219/2019] Prosecution case was set in motion on the basis of the report lodged by complainant-Gokul Chand Gurjar. On the basis of the report Exhibit- P-1 lodged by the complainant, formal FIR Exhibit-P-2 bearing No.59 dated 24.02.2017 was registered at Police Station Bhatta Basti, District Jaipur North for offence punishable under Section 302 IPC.
Prosecution story, in brief, is that on 24.02.2017, complainant- Gokul Chand Gurjar was eating his meals at his residence at about 8/8.30 p.m. On hearing noise from house No.442, he reached the spot and saw that Ram Prasad Sahu was armed with a heavy stick and was inflicting injuries to his handicapped brother Moti @ Bhola. As a result, Moti @ Bhola suffered serious injuries and started bleeding and became unconscious. When the boys standing nearby tried to intervene, Ram Prasad Sahu threatened them with the stick and, therefore, nobody tried to rescue Moti @ Bhola. As a result of injuries suffered by him, Moti @ Bhola died at the spot and Ram Prasad Sahu started smoking a 'Bidi'. Police reached the spot and conducted investigation at the spot.
After completion of investigation and necessary formalities, challan was presented against the accused.
Charge was framed against the accused by the trial court under Section 302 IPC.
Accused did not plead guilty to the charge framed against him and claimed trial.
In order to prove its case, prosecution examined 21 witnesses, during trial. Accused when examined under Section 313 Code of Criminal Procedure, 1973, after the close of prosecution evidence, prayed that he was innocent and had been falsely involved in this case.
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(3 of 15) [CRLAD-219/2019] Learned State counsel has submitted that the death sentence awarded to the accused was liable to be upheld as the accused, after undergoing life imprisonment in a murder case had committed murder of his brother, within a week. Accused had also inflicted injuires to another person and a case under Section 307 IPC was registered against him after his release from jail. Case rests on eyewitness account and from the statements of the eyewitnesses, it was duly established that the accused had murdered his handicapped brother by inflicting numerous injuries on his person. In support of her arguments, learned State counsel has placed reliance on the judgment of Hon'ble Supreme Court in B.A. Umesh Vs. Registrar General, High Court of Karnataka (2011) 3 Supreme Court Cases 85, 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 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 (Downloaded on 06/06/2021 at 08:15:29 PM) (4 of 15) [CRLAD-219/2019] 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 been unsuccessful in proving its case. Prosecution witnesses had falsely involved the accused in this case. Accused had no motive to commit the murder of his brother. Learned counsel has further submitted that, in-case, the conviction of the accused was upheld then the sentence of 'death' was liable to be converted to 'imprisonment for life' as the present case could not be described as 'rarest of the rare case' inviting death penalty. In support of his arguments, learned counsel has placed reliance on the judgment of Hon'ble Supreme Court in Hon'ble Supreme Court in Machhi Singh And Others Versus State of Punjab (1983) 3 Supreme Court Cases 470, wherein, it was held as under:-
"Death Sentence:
Having dealt with the appeals on merits from the stand- point of proof of guilt and validity or otherwise of the order of conviction, we now come face to face with the problem indicated when the curtain was lifted, namely, the application of the rarest-of-rare-cases rule to the facts of individual cases in the context of the relevant guidelines. Some reflections on the question of death penalty may appropriately be made before we tackle the said question in the perspective of the present group of appeals.(Downloaded on 06/06/2021 at 08:15:29 PM)
(5 of 15) [CRLAD-219/2019] The reasons why the community as a whole does not endorse the humanistic approach reflected in "death sentence-in-no-case" doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of "reverence for life" principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent to those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by 'Killing' a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so (in rarest of rare cases) when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entrain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance:
I. Manner of Commission of Murder When the murder is committed in an extremely brutal, grotesque, diabolical. revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. For instance, (Downloaded on 06/06/2021 at 08:15:29 PM) (6 of 15) [CRLAD-219/2019]
(i) When the house of the victim is set aflame with the end in view to roast him alive in the house.
(ii) When the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.
(iii) When the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.
II. Motive for Commission of murder When the murder is committed for a motive which evince total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (2) a cold blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust. (c) a murder is committed in the course for betrayal of the motherland. III. Anti Social or Socially abhorrent nature of the crime
(a) When murder of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance.
(b) In cases of 'bride burning' and what are known as 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
IV. Magnitude of Crime When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
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(7 of 15) [CRLAD-219/2019] V. Personality of Victim of murder When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder. (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-a vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.
In this background the guidelines indicated in Bachan Singh's case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentences arises. The following propositions emerge from Bachan Singh's 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 has to be accorded full weightage and a just balance has to be struck between (Downloaded on 06/06/2021 at 08:15:29 PM) (8 of 15) [CRLAD-219/2019] the aggravating and the mitigating circumstances before the option is exercised.
In order to apply these guidelines inter-alia the following questions may be asked and answered:
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender ?
If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so." Learned counsel has next placed reliance on the decision of this Court in State of Rajasthan Through Public Prosecutor Versus Kapil @ Anna 2018 (3) WLC (Raj.) 175, wherein, it was held as under:-
"The Supreme Court in Mohan Anna Chavan (supra) held that for deciding just and appropriate sentence to be awarded, balance sheet of aggravating and mitigating circumstances, in which crime has been committed, has to be drawn up on the basis of relevant circumstances. Learned trial court in the present case, while drawing up balance sheet of aggravating and mitigating circumstances, has taken into consideration the offence of gang rape along with offence of murder, lurking house-trespass or house breaking by nightpunishable where death or grievous hurt caused by one of the accused and Scheduled Castes and Scheduled Tribes (Prevention of (Downloaded on 06/06/2021 at 08:15:29 PM) (9 of 15) [CRLAD-219/2019] Atrocities) Act, 1989 and on that basis has chosen the extreme penalty of death in the range of choice between life imprisonment and death penalty. Since in view of aforesaid discussion, we find that charge of gang rape against the accused-appellant has not been proved and on that charge, equilibrium of the balance sheet of aggravating and mitigating circumstances in the present case would stand disturbed inasmuch as charge of murder alone would not bring the case in the category of rarest of rare case for which death penalty has to be awarded. Had the trial court originally convicted appellants only for the offence of murder along with other offences, but not for the offence of gang rape, it would not have possibly preferred to award extreme penalty of death. Therefore, in our considered view, present case does not qualify the test of being "rarest of rare cases" and therefore, we commute the death sentence to that of life imprisonment. As regards appeal filed by the State of Rajasthan questioning the non-imposition of fine while awarding death penalty by the trial court, since we have decided to convert the death penalty to life imprisonment, we deem it appropriate to also impose fine on the accusedrespondents."
Learned counsel has next placed reliance on the decision of Hon'ble Supreme Court in Hon'ble Supreme Court in Neel Kumar @ Anil Kumar Versus The State of Haryana 2012 (2) WLC (SC) Cri. 39 Supreme Court of India, wherein, it was held as under:-
"In view of the above, we do not find any cogent reason to take a view different from the view taken by the courts below and this leads us to the further question regarding the sentence as to whether it could be a rarest of rare case where imposition of death penalty is warranted.
The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. Before opting for the death penalty the circumstances of the offender also (Downloaded on 06/06/2021 at 08:15:29 PM) (10 of 15) [CRLAD-219/2019] require to be taken into consideration alongwith the circumstances of the crime for the reason that life imprisonment is the rule and death sentence is an exception. The penalty of death sentence may be warranted only in a case where the court comes to the conclusion that imposition of life imprisonment is totally inadequate having regard to the relevant circumstances of the crime. The balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and mitigating circumstances before option is exercised.
After considering the issue at length, this court in State of Maharashtra v. Goraksha Ambaji Adsul, AIR 2011 SC 2689, held as under:
"Awarding of death sentence amounts to taking away the life of an individual, which is the most valuable right available, whether viewed from the constitutional point of view or from the human rights point of view. The condition of providing special reasons for awarding death penalty is not to be construed linguistically but it is to satisfy the basic features of a reasoning supporting and making award of death penalty unquestionable. The circumstances and the manner of committing the crime should be such that it pricks the judicial conscience of the court to the extent that the only and inevitable conclusion should be awarding of death penalty."
(See also:Bachan Singh v. State of Punjab [AIR 1980 SC 898]; Machchi Singh & Ors. v. State of Punjab [AIR 1983 SC 957]; and Devender Pal Singh v. State NCT of Delhi & Anr. AIR [2002 SC 1661]).
A similar view has been taken by this Court in Haresh Mohandas Rajput Vs. State of Maharashtra [2011 (2) WLC (SC) Cri. 790 : (2011) 12 SCC 56 observing as under: (Downloaded on 06/06/2021 at 08:15:29 PM)
(11 of 15) [CRLAD-219/2019] "The rarest of the rare case" comes when a convict would be a menace and threat to the harmonious and peaceful coexistence of the society. The crime may be heinous or brutal but may not be in the category of "the rarest of the rare case". There must be no reason to believe that the accused cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute a continuing threat to the society. The accused may be a menace to the society and would continue to be so, threatening its peaceful and harmonious coexistence. The manner in which the crime is committed must be such that it may result in intense and extreme indignation of the community and shock the collective conscience of the society. Where an accused does not act on any spur-of- the-moment provocation and indulges himself in a deliberately planned crime and [pic]meticulously executes it, the death sentence may be the most appropriate punishment for such a ghastly crime. The death sentence may be warranted where the victims are innocent children and helpless women. Thus, in case the crime is committed in a most cruel and inhuman manner which is an extremely brutal, grotesque, diabolical, revolting and dastardly manner, where his act affects the entire moral fibre of the society e.g. crime committed for power or political ambition or indulging in organised criminal activities, death sentence should be awarded.
Thus, it is evident that for awarding the death sentence, there must be existence of aggravating circumstances and the consequential absence of mitigating circumstances. As to whether death sentence should be awarded, would depend upon the factual scenario of the case in hand. The instant case is required to be examined in the light of the aforesaid settled legal propositions.
There is no reason to disbelieve the above evidence and circumstances nor there is any reason to doubt the (Downloaded on 06/06/2021 at 08:15:29 PM) (12 of 15) [CRLAD-219/2019] commission of offence by the appellant and the recovery of incriminating material on his disclosure statement. The incriminating circumstances taken into consideration by the courts below can reasonably be inferred. However, so far as the sentence part is concerned, in view of the law referred to hereinabove, we are of the considered opinion that the case does not fall within the rarest of rare cases. However, considering the nature of offence, age and relationship of the victim with the appellant and gravity of injuries caused to her, appellant cannot be awarded a lenient punishment.
A three Judge Bench of this Court in Swami Shraddananda @ Murali Manohar Mishra v. State of Karnataka, AIR 2008 SC 3040, considering the facts of the case, set aside the sentence of death penalty and awarded the life imprisonment but further explained that in order to serve the ends of justice, the appellant therein would not be released from prison till the end of his life.
Similarly, in Ramraj v. State of Chattisgarh, AIR 2010 SC 420, this Court while setting aside the death sentence made a direction that the appellant therein would serve minimum period of 20 years including remissions earned and would not be released on completion of 14 years imprisonment.
Thus, in the facts and circumstances of the case, we set aside the death sentence and award life imprisonment. The appellant must serve a minimum of 30 years in jail without remissions, before consideration of his case for pre-mature release."
Learned counsel has next placed reliance on the decision of Hon'ble Supreme Court in Hon'ble Supreme Court in Santosh Kumar Satishbhushan Bariyar Versus State of Maharashtra (2009) 6 Supreme Court Cases 498, wherein, it was held as under:-
"The doctrine of proportionality, which appears to be the premise whereupon the learned trial judge as also the High Court laid its foundation for awarding death penalty on the (Downloaded on 06/06/2021 at 08:15:29 PM) (13 of 15) [CRLAD-219/2019] appellant herein, provides for justifiable reasoning for awarding death penalty. However while imposing any sentence on the accused the court must also keep in mind the doctrine of rehabilitation. This, considering Section 354(3) of the Code, is especially so in the cases where the court is to determine whether the case at hand falls within the rarest of the rare case.
The reasons assigned by the courts below, in our opinion, do not satisfy Bachan Singh Test. Section 354 (3) of the Code provides for an exception. General rule of doctrine of proportionality, therefore, would not apply. We must read the said provision in the light of Article 21 of the Constitution of India. Law laid down by Bachan Singh (supra) and Machhi Singh (supra) interpreting Section 354 (3) of the Code should be taken to be a part of our constitutional scheme.
Although the Constitutional Bench judgment of the Supreme Court in Bachan Singh (supra) did not lay down any guidelines on determining which cases fall within the `rarest of rare' category, yet the mitigating circumstances listed in and endorsed by the judgment gives reform and rehabilitation great importance, even requiring the state to prove that this would not be possible, as a precondition before the court awarded a death sentence. We cannot therefore determine punishment on grounds of proportionality alone. There is nothing before us that shows that the appellant cannot reform and be rehabilitated." Present case relates to murder of Moti @ Bhola. Case rests on eyewitness account.
As per the post-mortem examination report Exhibit-P-14, the cause of death of the deceased was due to shock and haemorrhage on account of multiple antemortem injuries suffered by the deceased by blunt weapon. Deceased had suffered 23 injuries. Most of the injuries are abrasions. Deceased had suffered two lacerated wounds on his lips and two bruises. Post-mortem report was proved by PW-11 Doctor Rashi.
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(14 of 15) [CRLAD-219/2019] Complainant-Gokul Chand Gurjar while appearing in the witness box as PW-1 has deposed as per the contents of the FIR.
PW-8 Akil Khan, PW-9 Mohammad Yusuf, PW-15 Nadeem Ulla Khan and PW-21 Alauddin have corroborated the statement of the complainant with regard to the infliction of injuries by accused on the person of his deceased brother.
The other witnesses have deposed with regard to the investigation conducted in the case. During investigation, weapon of offence was recovered at the instance of the accused.
Thus, in the present case, ocular version is duly corroborated by medical evidence. From the testimonies of the eyewitnesses, it is duly established that the accused had inflicted injuries to his brother with a heavy stick and the weapon of offence was recovered at the instance of the accsued during investigation of the case. As per medical evidence, deceased had suffered numerous injuries by blunt weapon. Hence, we are of the considered opinion that the learned trial court had rightly ordered the conviction of the accused under Section 302 IPC.
The next question that requires consideration is as to whether the trial court was justified in awarding 'death' sentence to the accused.
It is a settled propostion of law that death sentence must be imposed only when imprisonment for life appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime. A just balance has to be struck between the aggravating and mitigating circumstances before option is excercised to award death penalty. Imprisonment for life in a murder case is the rule and death sentence is an exception. Death sentence is to be awarded in the 'rarest of the rare case' when the court comes to the conclusion (Downloaded on 06/06/2021 at 08:15:29 PM) (15 of 15) [CRLAD-219/2019] that other then death sentence, no other sentence would be appropriate.
Learned trial court after considering the relevant facts and circumstances of the case has opted to award 'death' sentence to the accused. However, we are of the considered opinion, after going through the facts and circumstances of the case that the present case does not fall within the ambit of 'rarest of the rare case' inviting death penalty. Although, criminal record of the accused is not good. Accused has already served sentence of 'imprisonment for life' in another murder case and the present incident had occured on accused had been released from jail on completion of his sentence. So far as the other criminal cases against the accused are concerned, in one case, he was acquitted by the trial court, whereas, the other cases registered under Sections 341 and 323 IPC and under the Arms Act, 1959 were pending before the trial court.
Consequently, by upholding the conviction of the accused for offence under Section 302 IPC, we set aside the 'death' sentence awarded to the accused and convert the same to 'imprisonment for life' with fine of Rs.50,000/- and in default of payment of fine, accused shall further undergo rigorous imprisonment for one year. It is also ordered that accused would serve minimum period of 25 years sentence excluding remissions before his case can be considered for premature release. Appeal filed by accused Ram Prasad Sahu stands disposed of accordingly.
Consequently, death reference filed by the State stands declined.
(NARENDRA SINGH DHADDHA)J. (SABINA)J.
Sanjay Kumawat-6-7
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