Punjab-Haryana High Court
State vs Rishu Grover on 27 March, 2019
Author: Gurvinder Singh Gill
Bench: Gurvinder Singh Gill
Murder Reference No.04 of 2018 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
1. Murder Reference No.04 of 2018
State of Punjab
... Prosecutor
Versus
Rishu Grover
... Respondent
2. CRA-D-916-DB-2018
Rishu Grover
... Appellant
Versus
State of Punjab
... Respondent
Reserved on : 19.03.2019
Date of decision : 27.03.2019
CORAM: HON'BLE MR. JUSTICE RAJIV SHARMA
HON'BLE MR.JUSTICE GURVINDER SINGH GILL
Present: Mr.S.P.S. Sidhu, Advocate
for the appellant (convict) in CRA-D-916-DB-2018.
Mr.S.P.S.Tinna, Addl.A.G. Punjab.
RAJIV SHARMA, J.
Since common questions of law and facts are involved in the aforesaid murder reference and appeal, therefore these are taken up together and disposed of by a common judgment.
2. Murder Reference No.04 of 2018 has been received from the Additional Sessions Judge, Ludhiana, for confirmation of death sentence awarded to Rishu Grover, aged 30 years, son of Vinod Grover, resident of Gali No.1, near Radha Swami Satsang Bhawan, Iqbal Nagar, Tajpur Road, 1 of 19 ::: Downloaded on - 15-04-2019 02:09:07 ::: Murder Reference No.04 of 2018 2 Ludhiana as per judgment and order dated 14.09.2018
3. Criminal Appeal No.D-916-DB-2018 has been preferred by appellant Rishu Grover against the judgment and order dated 14.09.2018 whereby the appellant, who was charged with and tried for offences punishable under Sections 302, 460, 380 of the Indian Penal Code (in short 'IPC'), has been convicted and sentenced as under:-
Offence Punishment Fine Under Section 302 IPC on Death sentence subject to its Sentenced to pay fine of both the counts confirmation by the Hon'ble Rs.50,000/- (fifty thousand) High Court of Punjab and on both the counts, in Haryana, Chandigarh. default of which to undergo rigorous imprisonment for one year each, in case his death sentence is not confirmed by the Hon'ble High Court.
Under Section 380 IPC To undergo rigorous Sentenced to pay fine of imprisonment for five years Rs.10,000/- (ten thousand), in default of which to undergo rigorous imprisonment for six months, in case his death sentence is not confirmed by the Hon'ble High Court.
4. The case of the prosecution in a nutshell is that on 22.05.2013 police party headed by Inspector Brij Mohan reached at Mohalla Fateh Ganj, Ludhiana after receiving a wireless message from the control room. One Vikas Malhhotra met the police party and got his statement recorded. According to his statement, he was resident of House No.234, Street No.4, Mauchpura Bazaar, Ludhiana. He was married with Asheena daughter of late Baldev Raj, resident of B-5/397/1, Mohalla Fateh Ganj, Ludhiana. His mother-in-law Usha Rani and sister-in-law Heena were residing at Fateh Ganj. He was having one married brother-in-law Rahul Grover. He was settled in Australia. Last time he visited India at the time of engagement of his sister-in-law Heena around two months back. Thereafter he went back to 2 of 19 ::: Downloaded on - 15-04-2019 02:09:08 ::: Murder Reference No.04 of 2018 3 Australia. Heena's marriage was fixed to be solemnized on 20.11.2013. His wife had a telephonic conversation with her mother and sister on last night. Every thing was normal. On that day at about 01.30 P.M., his brother-in-law Rahul Grover called him from Australia. He told him that nobody was attending his calls at his house at Fateh Ganj. He asked him to check if everything was normal. He along with his wife went to his in-laws house. He found the main gate of house closed but not bolted from inside. They entered the house. They found his mother-in-law lying dead in the pool of blood in a room at the ground floor of the house. His sister-in-law was also lying in a room near washroom in the pool of blood on first floor. His sister- in-law had written "Bob" on the wall with her blood. They had made a complaint against one Babu, a sanitation worker, to the police. Statement was recorded. Crime scene was inspected. On 23.05.2013, Babu was interrogated. However he was let off. On 24.05.2013, post-mortem of dead bodies of Usha Rani and Heena was got conducted. On 25.05.2013 Rahul Grover @ Sunny, son of deceased Usha Rani, was joined in the investigations. His statement was recorded to the effect that he had shifted to Australia six years back. Rishu Grover was his first cousin being son of his real uncle Vinod Grover. He was resident of Kirpal Nagar, Tibba Road, Ludhiana. He was a frequent visitor to his house where his deceased mother Usha Rani and sister Heena were staying all alone. Rishu Grover had seduced his sister into incestuous relationship with him when she was minor girl. He came to India in February, 2013 after about two years on six weeks holiday. His sister's engagement was solemnized in March, 2013. Rishu Grover was forcing his sister to live in incest relation with him. He was blackmailing her. He had undertaken not to repeat his mistake. However he 3 of 19 ::: Downloaded on - 15-04-2019 02:09:08 ::: Murder Reference No.04 of 2018 4 did not mend his ways. His mother told him that accused had been issuing threats to his sister Heena that in case she did not accede to his indecent proposals he would then commit suicide. He was sending money for solemnization of his sister marriage. The statement of Rahul Grover was recorded. Accused Rishu Grover was nominated in the case. He was arrested. He made disclosure statement. He disclosed the manner in which he had committed murder of both mother and daughter. He also admitted his relationship with Heena. He had bought a knife and surgical gloves from market on 07.05.2013. He hid those in a cooler lying on the top floor in a store of their house (victim's house). He wore gloves and attacked Heena in rage with the knife as soon as she came upstairs with the glass of water. He gave her several blows with his knife. He killed his aunt inflicting knife blows while she was asleep. He took out currency notes, gold chain and one hundred Australian dollars from the locker of Almirah. He wrote "Bob" on the wall in Hindi language because Babu was the sanitation boy who had done sanitation work few days back at the house. Babu used to harass Heena. By doing this, he thought he could make him a prime suspect of the incident. He left the house around 2 o'clock in the midnight after committing the crime. Recoveries were got effected by the accused. Investigation was completed. Challan was presented after completing all the codal formalities.
5. Prosecution examined a number of witnesses. The statement of appellant was recorded under Section 313 Cr.P.C. According to him, he was falsely implicated since Rahul Grover owed money from him.
6. The appellant was convicted and sentenced to death as noticed hereinabove. Hence the appeal against his conviction and sentence and 4 of 19 ::: Downloaded on - 15-04-2019 02:09:08 ::: Murder Reference No.04 of 2018 5 death reference by the learned Additional Sessions Judge, Ludhiana for confirmation of death sentence.
7. Learned counsel appearing for the appellant (convict) has vehemently argued that the prosecution has failed to prove the case against the appellant.
8. Learned counsel appearing on behalf of the State has supported the judgment and order dated 14.09.2018.
9. We have heard learned counsel for the parties and have gone through the judgment and record very carefully.
10. PW-5 Dr.Avinash Jindal conducted the post-mortem examination on the body of Heena. He noticed the following injuries on her person:-
"1. Incised wound 2 ½ x 1 inch into bone deep on left side of forehead, 2.5 cm above left eyebrow, underline bone fractured.
2. Incised wound 1 x ½ inch left zygoma, 1.5 cm below injury No.1.
3. Incised wound 7 x 2 inch left side of face over cheek, horizontally placed from lateral aspect of nose upto left mastoid process, underline muscles cut and crushed.
4. Incised wound 5 x 1 inch, left side of neck expending from mid line to posterior aspect of sternocleido mastoid muscle laterally and horizontally placed, underline muscles cut and crushed.
5. Incised wound 5 x 2 inch, vertically placed over front of abdomen from sternum downwards, viscera coming out of wound.
6. Incised wound 3 x 2 inch, medial side of right fore arm, muscle cut.
7. Incised wound 3 x 1 ½ inch, lateral side of right 5 of 19 ::: Downloaded on - 15-04-2019 02:09:08 ::: Murder Reference No.04 of 2018 6 palm, muscle deep.
8. Incised wound 1 ½ x 1 inch, lateral side of left chest into 6 inch deep.
9. Incised wound 3 x ½ inch left palm muscle cut.
10. Abrasion 1 cm x 1 cm over pulp of left index finger with fine ring of hyperaemia, muscle compressed, part of pulp sent for histopathological examination."
The cause of death, in his opinion, was hemorrhage and shock due to multiple injuries which were sufficient to cause death in ordinary course of nature. The injuries were ante mortem in nature. The time between injury and death was immediate and between death and post- mortem was more than 48 hours. He proved the post-mortem report Ex.PW5/A. On the same day, the post-mortem on the dead body of Usha Rani was conducted. The following injuries were found on her body:-
"1. Incised wound 1½ x ½ inch middle of forehead just above the hair line, underline bore fractured.
2. Incised wound 1 x ½ inch, near lateral side of left eye.
3. Incised wound 1 x ½ inch, left cheek x muscle deep.
4. Incised wound 2 x ½ inch, right cheek covering the nose and naisal bone fractures.
5. Incised wound 1 x ½ inch, middle of upper lip through and through.
6. Incised wound 1½ x ½ x 2 inch deep over angle of right mandible.
7. Incised wound 1 x ½ x 4 inch deep, left side of front of chest over second and third ribs, ribs fractured.
8. Incised wound 3 x 2 inch front of abdomen, 2 inch above and 2 inch to the right side of umbilicus, viscera coming out.
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9. Incised wound 2 x ½ x ½ to right of injury No.8.
10. Incised wound 2 x ½ x 6 inch deep over front of lower abdomen.
11. Incised wound 2 x ½ x 6 inch deep over right buttock and back of thigh."
The cause of death in this case, in his opinion, was hemorrhage and shock due to multiple injuries which were sufficient to cause death in ordinary course of nature. The injuries were ante mortem in nature. The time between injury and death was immediate and between death and post- mortem was more than 48 to 60 hours.
11. PW-13 Dr.Ramesh Kumar deposed that he was posted as Medical Officer, Civil Hospital, Ludhiana, on 25.05.2013. He received application moved by the I.O. for medical examination of Rishu Grover. He noticed the following injuries on his body:-
"1. Multiple semi healed wounds, dark brown in color 13 to 14 in number each measuring ½ cm x 2 mm with tapering edges on the antero lateral border of the middle part of right fore arm appears to be 3 to 4 days old.
2. Two semi healed wounds, dark brown in color each measuring ½ cm x 2 mm with tapering edges on the posterior boarder of left wrist joint appears to be 3 to 4 days old.
3. An abrasion semi healed, dark brown in color measuring 2 cm x 2 mm in size over the thyroid region obliquely placed appears to be 3 to 4 days old."
He proved the MLR Ex.PW13/A.
12. PW-1 Rahul Grover deposed that he had migrated to Australia. His mother Usha Rani and sister Heena were residing in his house alone. Rishu Grover had developed physical relations (illicit relation) with his minor sister Heena. He came to India from Australia. They performed ring 7 of 19 ::: Downloaded on - 15-04-2019 02:09:08 ::: Murder Reference No.04 of 2018 8 ceremony of his sister with Saurav Kumar. He came to know that accused Rishu Grover had developed illicit relations with his sister. Rishu Grover undertook to mend his ways. He went back to Australia on 24.03.2013. Rishu Grover used to blackmail his sister. He made statement to the police on 25.05.2013. He spotted Rishu Grover coming on motor cycle. He immediately told the police about him. Rishu Grover was arrested. Arrest memo is Ex.PB. Police recovered 100 Australia dollars from him. Rishu Grover made disclosure statement to the effect that he had kept concealed currency notes of denomination of Rs.1000/- each stolen by him during the occurrence. The total currency notes were Rs.2,11,000/-. He got recovered the same from the disclosed place. On 26.05.2013, he was present with the police party. Accused was interrogated. Accused told that knife was purchased by him from the shop of Ghumar Mandi. He got knife recovered with blood stains, along with one pair of surgical gloves and the handkerchieves stained with blood. The same were taken into possession. The gold chain stolen by him was also got recovered on 27.05.2013. In his cross-examination, he deposed that dead bodies were cremated in his presence. Babu was not interrogated in his presence. He denied the suggestion that murder was committed by Babu.
13. PW-2 Kirpal Kaur testified that sometimes she used to go to Gurdwara for Simran between 02.00 AM to 02.15 AM. On the intervening night of 21/22.05.2013 at about 02.00 AM when she came out from her house in order to go to Gurdwara Dukh Niwaran Sahib, she noticed one boy who was having one polythene bag in his hand, closing the door of the house of Usha Rani. She proceeded towards wide street. She found that the cousin of Heena had overtaken her at fast pace. She identified the accused 8 of 19 ::: Downloaded on - 15-04-2019 02:09:08 ::: Murder Reference No.04 of 2018 9 in the Court. On 22.05.2013 at about 01.30 P.M. she heard noise in the Mohalla that Usha Rani and his daughter Heena were murdered by some unknown person. She talked about the murder with the woman folk of the Mohalla. Ladies told her to keep quiet. In her cross-examination, she admitted that police had not got conducted identification parade from her.
14. PW-3 Manohar Lal deposed that he was working with Deepak Anand. On 03.05.2013 Deepak gave Rs.2 lacs to him. He handed over this money to Usha Rani at 11.00 A.M. at her house.
15. PW-6 Aman Sharma deposed that he was running a chemist shop in the name of Punjab Medical Store. Accused came to his shop. He purchased gloves used by the doctors from his shop. On 30.05.2013, the police along with accused came to his shop. He identified the accused who purchased the gloves from him on 07.05.2013.
16. PW-8 Vikas Malhotra deposed that his sister in law Heena was engaged with Saurav. On 21.05.2013 at about 11.00 P.M., his wife talked to his mother-in-law on phone. They slept at about 12 midnight. On 22.05.2013 at about 01.30 P.M. they received telephonic call from his brother-in-law Rahul Grover from Australia. He informed that no one was attending his phone calls. At about 01.30 P.M. he along with wife immediately went to in-laws house to enquire why mother-in-law and sister- in-law were not attending the telephonic call. They entered inside the house. He found the dead body of his mother-in-law lying in the pool of blood and dead body of his sister-in-law lying in front of bath room in the pool of blood. He informed the police. His statement Ex.PA was recorded. Police reached the spot. Police picked up blood lying near the body of his mother- in-law with the help of cotton swabs. Police also picked up blood with the 9 of 19 ::: Downloaded on - 15-04-2019 02:09:08 ::: Murder Reference No.04 of 2018 10 help of cotton swabs from the first floor. Two artificial bangles were also taken in police possession. Police also picked the blood from electric switch. In order to mislead the police, accused had written word "Bob" with blood of the deceased.
17. PW-9 Inspector Brij Mohan deposed that he was posted as SHO, Division No.3, Ludhiana, on 22.05.2013. He was informed about the incident at 01.48 P.M. He reached the spot. He recorded the statement of Vikas Malhotra vide Ex.PA. FIR was registered. Fingerprint Expert and Photographer reached at the spot. He prepared inquest report Ex.PD. On 23.05.2013 he went to the place of occurrence where the persons informed him that Rishu Grover used to visit the house of deceased. The inhabitants of locality suspected that he had committed this crime. Babu Ram was also interrogated. However he was found innocent. The post-mortem was got conducted. Money was recovered from the accused. The knife, surgical gloves and handkerchief were also got recovered by the accused. Accused also got recovered one chain of gold on 27.05.2013. In his cross- examination, he admitted that initially FIR was lodged against Babu. No evidence came against him.
18. PW-17 Gulshan Kumar deposed that on 07.05.2013 one healthy person came at his shop and bought one knife for Rs.160/-. On 30.05.2013 police came to his shop along with accused. He identified the accused in the Court. The sketch of knife is Ex.PJ/1.
19. PW-18 Simuel deposed that Rishu used to come to his stand approximately at 09.30 P.M. to 08.00 A.M. On the night of 21/22.05.2013 he parked his motor cycle at 09.30 P.M.. He came back at about 02.00 A.M.
20. The cause of death was hemorrhage and shock due to multiple 10 of 19 ::: Downloaded on - 15-04-2019 02:09:08 ::: Murder Reference No.04 of 2018 11 injuries which were sufficient to cause death in ordinary course of nature. The injuries were ante mortem in nature. The medical team had noticed the injuries. According to FSL report Ex.PO/1, exhibits contained in parcels "A" to "K" (cotton, knife, pair of gloves, banian, kameez, bra, underwear, lower, kameez, bra, chuni, salwar) were stained with human blood and blood groups from "A" to "J" are B positive. The result regarding blood group of parcel "K" was inconclusive as blood sample was decomposed.
21. PW-1 Rahul Grover has categorically deposed that accused had developed illicit relations with his sister Heena. He was asked to mend his ways. He got engaged his sister in the month of March. The marriage was to be solemnized in the month of November, 2013. His mother had told him that accused used to threaten his sister. He had sent money for solemnization of marriage of his sister. PW-2 Kirpal Kaur had seen the accused coming out of the house of the deceased in the early hours. PW-8 Vikas Malhotra deposed that his wife had talked with her mother at night. His brother-in-law Rahul Grover called him from Australia and told him that nobody was picking up telephone. He along with his wife went to in- laws house. The room was not bolted. They saw two bodies lying in the pool of blood. PW-6 Aman Sharma testified that accused had purchased surgical gloves from his shop on 07.05.2013. PW-17 Gulshan Kumar testified that accused had purchased knife from his shop on 07.05.2013. According to PW-18 Simuel, accused had parked his motor cycle at 09.30 P.M. on the night of 21/22.05.2013 and came back to take his motor cycle at 02.00 A.M. The appellant has got the knife, surgical gloves and handkerchief recovered on the basis of his disclosure statement. The appellant has not led any evidence that there was some money transaction 11 of 19 ::: Downloaded on - 15-04-2019 02:09:08 ::: Murder Reference No.04 of 2018 12 between him and PW-1 Rahul Grover. Rahul Grover, brother of deceased Heena, is the cousin of accused. It has come on record that accused had developed illicit relations with deceased Heena. He used to threat and blackmail her. The marriage was to be solemnized in the month of November, 2013. The appellant in order to mislead the police, had written word "Bob" on the wall with the blood of deceased Heena. On this suspicion, Babu was also interrogated but he was found innocent. Money was also got recovered at the instance of the appellant. The cause of death was hemorrhage and shock due to multiple injuries which were sufficient to cause death in ordinary course of nature as per opinion of PW-5 Dr.Avinash Jindal. The prosecution has proved the case against the appellant beyond reasonable doubt.
22. However, learned counsel appearing on behalf of the appellant has vehemently argued that this case is not rarest of the rare cases and the death sentence may be commuted to life imprisonment.
23. Their Lordships of the Hon'ble Supreme Court in Bachan Singh v. State of Punjab, (1980) 2 SCC 684, have categorically held that the death penalty is to be imposed only when the alternative of life imprisonment is totally inadequate, and therefore unquestionably foreclosed, i.e. if it is the only inevitable conclusion. The aggravating circumstances shall also be taken into consideration.
24. Their Lordships of Hon'ble Supreme Court in (2010) 9 SCC 567 in the case of C. Muniappan and others Vs. State of Tamil Nadu along with connected appeal, have laid down the social effect of punishment and proportional considerations, when the principle of rarest of rare is to be applied. Their Lordships have further held that death sentence 12 of 19 ::: Downloaded on - 15-04-2019 02:09:08 ::: Murder Reference No.04 of 2018 13 can be given in rarest of rare cases if the "collective conscience" of a community is so shocked that death penalty is the only alternative. The "rarest of the rare cases" comes when the convict would be a menace and threat to the harmonious and peaceful coexistence of the society. Their Lordships have also held as under :-
"87. In Machhi Singh v. State of Punjab this Court expanded the "rarest of rare" formulation beyond the aggravating factors listed in Bachan Singh to cases where the "collective conscience"
of a community is so shocked that it will expect the holders of the judicial powers to inflict the death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining the death penalty, and stated that in these cases such a penalty should be inflicted. 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 Court further held that the relevant factors to be taken into consideration may be motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as:
(i) Murder is in extremely brutal manner so as to arouse intense and extreme indignation of the community.
(ii) Murder of a large number of persons of a particular caste, community, or locality, is committed.
(iii) Murder of an innocent child; a helpless woman, is committed.
xxx xxx xxx
91. Thus, it is evident that criminal law requires strict adherence to the rule of proportionality in providing
13 of 19 ::: Downloaded on - 15-04-2019 02:09:08 ::: Murder Reference No.04 of 2018 14 punishment according to the culpability of each kind of criminal conduct keeping in mind the effect of not awarding just punishment on the society. 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. Where an accused does not act on any spur of the moment provocation and he indulged himself in a deliberately planned crime and meticulously executed it, the death sentence may be the most appropriate punishment for such a ghastly crime.
92. Life imprisonment is the rule and death penalty an exception. Therefore, the court must satisfy itself that death penalty would be the only punishment which can be meted out to a convict. The court has to consider whether any other punishment would be completely inadequate and what would be the mitigating and aggravating circumstances in the case. Murder is always foul, however, the degree of brutality, depravity and diabolic nature differ in each case. Circumstances under which murders take place also differ from case to case and there cannot be a straitjacket formula for deciding upon circumstances under which death penalty must be awarded. In such matters, it is not only the nature of crime, but the background of criminal, his psychology, his social conditions, his mindset for committing offence and effect of imposing alternative punishment on the society are also relevant factors."
25. Their Lordships of Hon'ble Supreme Court in (2011) 2 SCC 490 in the case of Rabindra Kumar Pal @ Dara Singh Vs. Republic of India, have explained the principles for imposition of death sentence. Their Lordships have also held as under :-
"90. Though the trial court awarded death sentence for Dara Singh, the High Court after considering the entire 14 of 19 ::: Downloaded on - 15-04-2019 02:09:08 ::: Murder Reference No.04 of 2018 15 materials and finding that it is not a rarest of the rare case, commuted the death sentence into life imprisonment. The principles with regard to awarding punishment of death have been well settled by judgments of this Court in Bachan Singh v. State of Punjab, Machhi Singh v. State of Punjab and Kehar Singh v. State (Delhi Admn.). It is clear from the above decisions that on conviction under Section 302 IPC, the normal rule is to award punishment of life imprisonment and the for the rarest of rare cases.
91. Whether a case falls within the rarest of the rare case or not, has to be examined with reference to the facts and circumstances of each case and the court has to take note of the aggravating as well as mitigating circumstances and conclude whether there was something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for death sentence. However, more than 12 years have elapsed since the act was committed, we are of the opinion that the life sentence awarded by the High Court need not be enhanced in view of the factual position discussed in the earlier paras."
26. Their Lordships of Hon'ble Supreme Court in (2011) 5 SCC 317 in the case of Mohd. Mannan @ Abdul Mannan Vs. State of Bihar, have discussed the broad guidelines for imposition of death penalty. Their Lordships have also held as under :-
"23. It is trite that death sentence can be inflicted only in a case which comes within the category of the rarest of rare cases but there is no hard-and-fast rule and parameter to decide this vexed issue. This Court had the occasion to consider the cases which can be termed as the rarest of rare cases and although certain comprehensive guidelines have been laid to adjudge this 15 of 19 ::: Downloaded on - 15-04-2019 02:09:08 ::: Murder Reference No.04 of 2018 16 issue but no hard-and-fast formula of universal application has been laid down in this regard. Crimes are committed in so different and distinct circumstances that it is impossible to lay down comprehensive guidelines to decide this issue. Nevertheless it is widely accepted that in deciding this question the number of persons killed is not decisive.
24. Further, crime being brutal and heinous itself does not turn the scale towards the death sentence. When the crime is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community and when collective conscience of the community is petrified, one has to lean towards the death sentence. But this is not the end. If these factors are present the court has to see as to whether the accused is a menace to the society and would continue to be so, threatening its peaceful and harmonious coexistence. The court has to further enquire and believe that the accused condemned cannot bereformed or rehabilitated and shall continue with the criminal acts. In this way a balance sheet is to be prepared while considering the imposition of penalty of death of aggravating and mitigating circumstances and a just balance is to be struck. So long the death sentence is provided in the statute and when collective conscience of the community is petrified, it is expected that the holders of judicial power do not stammer dehors their personal opinion and inflict death penalty. These are the broad guidelines which this Court has laid down for imposition of the death penalty.
25. When we test the present case bearing in mind what has been observed, we are of the opinion that the case in hand falls in the category of the rarest of rare cases. The appellant is a matured man aged about 43 years. He 16 of 19 ::: Downloaded on - 15-04-2019 02:09:08 ::: Murder Reference No.04 of 2018 17 held a position of trust and misused the same in a calculated and pre-planned manner. He sent the girl aged about 7 years to buy betel and few minutes thereafter in order to execute his diabolical and grotesque desire proceeded towards the shop where she was sent. The girl was aged about 7 years of thin built and 4 ft of height and such a child was incapable of arousing lust in normal situation. The appellant had won the trust of the child and she did not understand the desire of the appellant which would be evident from the fact that while she was being taken away by the appellant no protest was made and the innocent child was made prey of the appellant's lust.
26. The post-mortem report shows various injuries on the face, nails and body of the child. These injuries show the gruesome manner in which she was subjected to rape. The victim of crime is an innocent child who did not provide even an excuse, much less a provocation for murder. Such cruelty towards a young child is appalling. The appellant had stooped so low as to unleash his monstrous self on the innocent, helpless and defenceless child. This act no doubt had invited extreme indignation of the community and shocked the collective conscience of the society. Their expectation from the authority conferred with the power to adjudicate is to inflict the death sentence which is natural and logical. We are of the opinion that the appellant is a menace to the society and shall continue to be so and he cannot be reformed. We have no manner of doubt that the case in hand falls in the category of the rarest of rare cases and the trial court had correctly inflicted the death sentence which had rightly been confirmed by the High Court.
27. In 2014 (3) SCC 1, in the case of "Shatrughan Chauhan & another vs. Union of India & others", their Lordships of the Hon'ble 17 of 19 ::: Downloaded on - 15-04-2019 02:09:08 ::: Murder Reference No.04 of 2018 18 Supreme Court reiterated the principles as under:-
"90. It was, therefore, held in Sunil Batra case that the solitary confinement, even if mollified and modified marginally, is not sanctioned by Section 30 of the Prisons Act for prisoners "under sentence of death".
The crucial holding under Section 30(2) is that a person is not "under sentence of death", even if the Sessions Court has sentenced him to death subject to confirmation by the High Court. He is not "under sentence of death" even if the High Court imposes, by confirmation or fresh appellate infliction, death penalty, so long as an appeal to the Supreme Court is likely to be or has been moved or is pending. Even if this Court has awarded capital sentence, it was held that Section 30 does not cover him so long as his petition for mercy to the Governor and/or to the President permitted by the Constitution, has not been disposed of. Of course, once rejected by the Governor and the President, and on further application, there is no stay of execution by the authorities, the person is under sentence of death. During that interregnum, he attracts the custodial segregation specified in Section 30(2), subject to the ameliorative meaning assigned to the provision. To be "under sentence of death" means "to be under a finally executable death sentence".
91. Even in Triveniben, this Court observed that keeping a prisoner in solitary confinement is contrary to the ruling in Sunil Batra and would amount to inflicting "additional and separate" punishment not authorised by law. It is completely unfortunate that despite enduring pronouncement on judicial side, the actual implementation of the provisions is far from reality. We take this occasion to urge to the Jail Authorities to comprehend and implement the actual intent of the verdict in Sunil Batra."
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28. We are of the view that this case does not fall within the ambit of the principle of "rarest of rare cases" for awarding death sentence to the appellant.
29. Consequently, the appeal filed by the appellant is partly allowed and death sentence awarded to the appellant under Section 302 IPC is commuted to life imprisonment out of which the appellant would have to mandatorily serve out minimum 20 years without remission and to pay a fine of Rs.50,000/-. In default of payment of fine, he shall further undergo rigorous imprisonment for a period of one year. The sentence imposed upon the appellant under Section 380 IPC is upheld. The murder reference No.4 of 2018 is answered accordingly.
(RAJIV SHARMA) JUDGE (GURVINDER SINGH GILL) JUDGE March 27, 2019.
Davinder Kumar
Whether speaking / reasoned Yes/No
Whether reportable Yes/No
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