Bombay High Court
State Of Maharashtra vs Raju Dadaba Borge on 4 October, 2000
Equivalent citations: 2001BOMCR(CRI)~, (2001)1BOMLR852, 2001CRILJ3638
Author: Vishnu Sahai
Bench: Vishnu Sahai, D.S. Zoting
JUDGMENT Vishnu Sahai, J.
1. Since Confirmation Case No. 2 of 2000 and Criminal Appeal No. 222 of 2000 arise out of the same set of facts and arc directed against a common Judgment, we are disposing them off by one Judgment.
Through his Judgment dated 2nd February. 2000 passed in Sessions Case No. 1327 of 1996, the IInd Additional Sessions Judge. Kalyan convicted and sentenced Raju Dadaba Borge in the manner stated hereinafter : -
(i) Under section 302 of the I.P.C. to death penalty to be hanged by neck till dead (for the murder of his daughter Sangeeta aged 1 1/2 years) and to pay a fine of Rs. 10,000/- in default to suffer two years R. I. ;
(ii) Under section 307 of the I.P.C. for attempting to commit the murder of his two daughters Sangeeta and Pooja, to ten years R. I. and pay a fine of Rs. 5,000/- on each count, in default to suffer R. I. for two years ; and
(iii) Under section 201 of the I.P.C. to suffer five years R. I. and to pay a fine of Rs. 3,000/- in default R.I. for six months.
The sentences were directed to run consecutively.
Confirmation Case No. 2 of 2000 arises from the statutory reference made by the Hnd Additional Sessions Judge, Kalyan. under section 366 of the Cr.P.C. for confirmation of the death sentence of Raju Dadaba Borge.
Criminal Appeal No. 222 of 2000 has been preferred by Raju Dabada Borge against his convictions and sentences on the aforesaid three counts.
2. The prosecution case in brief, as it emerges from the recitals contained in the F.I.R. lodged by Vimlabai P.W. 1 on 2.11.1995 at Central Police Station, Ulhasnagar and those contained in the evidence of Mangala Bondave P.W. 5, Senior P.I. Ashok Ramble P.W. 10 and the ocular account furnished by Virnlabal's grand-daughter Sangeeta P.W. 6 is as under :-
Vimlabai Raghunath Chandane P.W. 1 had four sons and two daughters. Her daughter Baby @ Laxmi was married to Raju Dadaba Borge (hereinafter referred to also as the accused - appellant and the appellant) about ten years prior to the incident. They had three daughters namely Sangeeta P.W. 6 aged 8 years, Pooja aged four years and Soni (deceased) aged 1 1/2 years and were residing at Sonwadl Taluka and District Nagar. About a month prior to the incident, Baby @ Laxmi came to Vimlabai's hut situate at Balkan)) Bari, Satbaba Colony, Ulhasnagar - 3. She told Vimlabai that the appellant was not doing his job; consuming liquor; and beating her. Next day the appellant also came to Vimlabai's hut and after picking up a quarrel with Baby went to his native place. After 8 to 15 days, he again returned, patched up with Baby and started residing with Vimlabai but, since old habits die hard, he kept on consuming liquor and picking up quarrels with Baby on petty Issues. He used to always say that he was not the father of these girls.
On 28.10.1995, there was a quarrel between the appellant and Baby @ Laxmi. Consequently, on the night of 28th/29th October, 1995 at 12.30 a.m. the appellant left along with Baby @ Laxmi.
On 2.11.1995, at 8.30 a.m. Mangala Bondave P.W. 5 went to answer the call of nature In the open shrubs in the ground known as M.S. Quarters and saw two girls lying in a unconscious and injured condition and heard the sound of cries. She went to the police outpost and gave the necessary information vide Exhibit 27.
The information conveyed by Mangala Bondave was conveyed by the police to Vimlabai P.W. 1 the same morning at 9/9.30 a.m. and she immediately proceeded to Central Hospital, Ulhasnagar to see her granddaughters. She saw two of them namely Sangeeta and Pooja. The third Soni (deceased) was not there. She informed the police that Sangeeta and Pooja were her grand-daughters. Vimlabai lodged her F.I.R. Exhibit 15, on the basis of which Crime No. 159 of 1995, under sections 307/201 of the I.P.C., was registered at Central Police Station by PSl Suryavanshi.
After regaining consciousness, Sangeeta was interrogated and as is manifest from Parts A and B of her statement under section 161 of the Cr.P.C. with which she was contradicted, she gave ocular account of the incident.
3. The evidence of Sr. P. 1. AshokKamble P.W. 10 shows that the same morning (morning of 2.11.1995) Head Constable Jagtap arrested the appellant and brought him-before him. He drew the arrest panchanama of the appellant Exhibit 17 and in the presence of public panchas Anil Rajput P.W. 2 (who turned hostile) and Dipak Jadhav P.W. 11 recovered the blood stained clothes of the appellant namely pant, banian and shirt, under a panchanama.
The evidence of Sr. P. I. Ashok Kamble further shows that on the same. date (2.11.1995) the appellant during the course of his interrogation stated that he could show the place where he had thrown the dead body of his youngest daughter Soni @ Anajli. Consequently, P; I. Kamble called for two public panchas, out of whom one namely Devidas Jamdar P.W. 7 has been examined. In his presence, he recorded the willingness of the appellant under a panchanama. Thereafter, the appellant led P, I. Kamble and public panchas to M. S. Quarters (behind Red Cross Land) and took out the body of Soni which was covered with foliage from the slope. The said corpse was seized by the police under panchanama Exhibit 31. A cement concrete stone weighing 5 kg. was also seized by the police. The said seizure was not made under a panchanama.
It is pertinent to mention that Sr. P. I. Kamble interrogated a large number of witnesses during the course of investigation. During investigation he also seized articles like plain earth and blood stained earth from the place of the incident and seized the blood stained clothes of the victims. The seized articles were sent to the Chemical Analyst.
On completion of the Investigation, the appellant was charge-sheeted.
4. Going backwards, the injuries on Sangeeta and Pooja were medically examined on 2.11.1995 at 8.00 a.m. and 8.30 a.m. respectively at Central Hospital, Ulhasnagar, by Dr. Gurmal Singh Kundi P.W. 3 Dr. Kundi found the following injuries on the person of Sangeeta : -
"1. Contused lacerated wound on right side forehead 1/2" x 1/4" x bone deep.
2. Contused lacerated wound on right side temporal region, near eye, horizontal 1/2" x 1/4" x muscle deep.
3. Contused lacerated wound below right eye, 1/2" x 1/4" x muscle deep.
4. Odema on both eye lids, with conjectlval haemorrhage, in the right eye.
5. Contused lacerated wound on upper lip, mufcosal surface '/"" x 1/8" x muscle deep.
6. Loosened upper central incisor right side with bleeding.
7. Abrasion on lower lip mufcosal surface."
Dr. Kundi found the following injuries on the person of Pooja : -
"1. Contused lacerated wound on left temporal region horizontal 1/2 x V," bone deep.
2. Contused lacerated wound on left temporal region, below injury No. 1 l/2" x 1" x bone deep with muscles exposed.
3. Multiple abrasions all over body. Contused lacerated wound on right side occipital region 1" x l/4"x bone deep."
In the opinion of Dr. Kundi. the injuries of both the victims were caused by a hard and blunt object wtthln 12 hours and could be caused by a stone. Dr. Kundi stated that the person causing injuries to Sangeeta and Pooja intended causing damage to the brain.
4A. Once again going backwards, the autopsy on the corpse of Soni was conducted on 2.11.1995, between 1.45 p.m. and 2.45 p.m. by Dr. Vlshvanath Hiremath P.W. 4 who found on it the following ante mortem injuries :-
"[i) C.L.W. over the forehead, transverse 3 l/4" x 1" bone deep with the fractures of frontal bofie.
(ii) C.L.W. over the forehead over rt. eyebrow. 1" x 1/2" bone deep.
(iii) C.L.W. over the glabella in the length vertical two in number each skin deep.
[iv) C.L.W. over rt. cheek by the size of oval cavity 1" x 1/2" x Y2".
(v) C.L.W. over it parietal region 1" x 1/2" x 1/2"
(vi) C.L.W. over occipital region 1" x 1/2" x 1/4"-
(vii) Lt. leg in the lower 2/3 and over dorsal aspect totally destructed only bones seen suggestive of part being eaten by animals."
On internal examination, Dr. Hiremath found fracture of frontal bone and right parietal region.
In his deposition in the Trial Court, Dr. Hiremath stated that the said injuries could be caused by a cement stone or a part of cement stone which is hard and blunt object. He was shown the cement stone recovered by the Investigating Officer from the place of the incident (article No. 9) and candidly stated that it was sufficient to cause death of the deceased and the injuries of the deceased could be caused by it.
5. The case was committed to the Court of Sessions in the usual manner where the appellant was charged for the offences punishable under sections 302, 307 and 201 of the I.P.C. He pleaded not guilty to the said charges and claimed to be tried. His defence was of denial.
During trial, in all the prosecution examined 11 witnesses. The evidence adduced by the prosecution during trial can be classified under two broad - heads namely, direct and circumstantial : -
(a) Direct : In the form of ocular account furnished by Sangeeta P.W. 6.
(b) Circumstantial :
(i) recovery of blood stained clothes of the appellant deposed to by Sr. P. I. Ashok Kamble P.W. 10 and public panchas Anil Rajput P.W. 2 (hostile) and Dipak Jadhav P.W. 11; and
(ii) recovery of the dead body on the pointing of the appellant deposed to by Sr. P. I. Ashok Kamble P.W. 10 and public panch Devidas Jamdar P.W.
7.
The learned Trial Judge believed the aforesaid evidence and convicted and sentenced the appellant in the manner stated in para 1 above.
6. We have heard learned counsel for the parties. After perusing the entire material on record and bestowing our anxious consideration, we have reached the conclusion that the reference made by the IInd Additional Sessions. Judge for confirmation of the death sentence of the appellant for the offence under section 302 of the I.P.C. deserves to be rejected and Criminal Appeal No. 222 of 2000 preferred by the appellant warrants to be partly allowed Inasmuch as in our Judgment, the appellant deserves the sentence of Imprisonment for life for the offence under section 302 of the I.P.C. and not that of death Imposed on him by the Trial Court thereunder.
7. We now propose considering the evidence adduced by the prosecution against the appellant.
We first begin with the ocular account furnished by Sangeeta P.W. 6, the own daughter of the appellant. Since Sangeeta was aged about 10 to 13 years at the time of giving evidence, the learned Trial Judge rightly conducted her preliminary examination to ascertain whether she was possessed of sufficient understanding. He asked her the following questions to which she gave answers reproduced below : -
Question No. 1. Do you know God?
Answer : Yes Question No. 2 : Do you go to school ?
Answer : No. I play at home.
Question No. 3 : Do you help in household work ?
Answer : Yes.
Question No. 4 : What have you to state In giving evidence ?
Answer : I have to tell the truth.
After putting these questions and receiving answers, the learned Trial Judge was rightly satisfied that she was possessed of understanding and therefore put the following question to her : -
Q : Do you remember what happened with you. when you were Injured?
A : I do remember.
My father had taken me, my sister Pooja and my another sister Sonl in the open ground. It was night time. My father first assaulted Soni by stone, thereafter assaulted Pooja by stone and thereafter assaulted me by stone. After hitting by stone to me. I do not know what happened. I was assaulted by stone on my head and face and by fist blow on my nose. My father brought us from the house of our grand mother. Sonu had milk and biscuits before death, and myself-Pooja had bhahri and water before assault. In the open land there were shrubs and trees. Accused before the Court is the same person who is my father and assaulted we all."
7A. A perusal of the answers given by Sangeeta to the last question leaves not even an iota of doubt In our minds that she saw the incident. Her statement that her father (appellant) assaulted Sonu, Pooja and her Is corroborated by the medical evidence. We have earlier referred to the injuries sustained by Sangeeta and Pooja. We have seen that they were medically examined by Dr. Kundt who found on their person contused lacerated wounds which he candidly stated could be caused by a stone. We have also referred to the ante mortem injuries suffered by the deceased Sonu and to the evidence of Dr. Vishwanath Hiremath P.W. 4, the Autopsy Surgeon, who found on her person C.L.Ws. which he candidly stated could be caused by the stone shown to him (article No. 9).
8. It should be borne in mind that Sangeeta P.W. 6 was the own daughter of the appellant and hence, there was no question of her falsely implicating him. unless he had been the villian of the crime in question. Neither from her cross-examination nor from that of any other witness, could it be culled out that there was any enmity between Sangeeta and the appellant.
9. It should also be remembered that Sangeeta is a injured witness of the incident. Her injuries guarantee her presence. The evidence of a injured witness stands on a far higher pedestal than that of a witness who is not injured because injuries ensure the presence of a witness and once that is ensured, the limited question which remains is the credibility of the witness. On the other hand. In case of a witness who is not injured, firstly his presence has to be established and thereafter his credibility. We have earlier set out the injuries of Sangeeta. No one can castigate the said injuries as having been manufactured because, no one would manufacture injuries on vital parts like head and lips of a eight-year old girl. To be fair, neither has the learned counsel for the appellant argued that the injuries of Sangeeta are manufactured.
10. Mr. Shirish Gupte learned counsel for the appellant strenuously urged that since Sangeeta is a child witness, her evidence does not merit acceptance. We regret that this is not the law. The law only enjoins that the testimony of a child witness should be evaluated with caution and not mechanically rejected. We have exercised that caution and find It to be implicitly truthful.
Mr. Gupte also urged that there are variations between the substantive evidence of Sangeeta and portions marked A and B in her statement under section 161 of the Cr.P.C., with which she was confronted during cross-examination, which destroy her credibility. We regret we neither find any merit in this submission.
Mr. Gupte, urged that whereas Sangeeta in her substantive statement, stated that the appellant first assaulted the deceased and then Pooja and then her with a stone, in portion marked A of her 161 statement, she stated thus : -
"Pooja and Son! were sitting under a tree. Papa took rne on the shrubs. Then he first pressed my neck and assaulted me with a stone, on head and face. Thereafter, I became unconscious."
Mr. Gupte, urged that in view of this contradiction, her testimony should be rejected. It is true that the contradiction is certainly there because, portion marked A shows that Sangeeta was first assaulted and in her substantive statement, she stated that she was assaulted last but in our view such a contradiction was natural and understandable. It should be borne in mind that Sangeeta was a girl aged about 10 years when she gave evidence. Considering her tender age and the circumstance that the deceased was her sister, if under pressure of cross-examination, she made the statement portion A, the said variation would not be fatal. On the converse, the said variation is a guarantee that she has not been tutored. Had she been tutored, we would have excepted her to depose in the Trial Court, in a parrot-like manner, on the lines of her statement recovered under section 161 of the Cr.P.C.
Similarly, Mr. Gupte invited our attention to portion B in her 161 statement of the Cr.P.C. which reads thus : -
"Thereafter, we arrived on the big road. There, Papa made us sit at one place and went away. And after sometime, we returned back."
Again, we cannot shy from the situation that this statement, is at variance with her statement given in the Trial Court but, again it is to be remembered that she was aged 10 years and possessed with grief on having lost her sister, while she was giving evidence. In such a psychological situation, it was only natural that under pressure of cross-examination, she made some aberations but, the said aberatlon is not destructive to her evidence. To repeat, it only shows that she was not tutored. After Mr. Gupte had read out the portions A and B, he read out the last part of Sangeeta's evidence. A question was put to her that it was not correct that some third person had assaulted her, she replied to it that my father assaulted me. Again, the question was repeated in the following manner :-
(1) By taking advantage, some third person had assaulted you ?
A : No. My father assaulted me, To use the pun, this has been a case of over cross-examination and as is our normal experience, over cross-examination is always destructive to the defence.
11. For the said reasons, in our view, the evidence of Sangeeta Is implicitly reliable and by Itself is sufficient to sustain the conviction of the appellant.
It should be borne in mind that section 134 of the Indian Evidence Act provides that "no particular number of witnesses shall in any case shall be required for proof of any fact." The provisions contained in section 134 of the Indian Evidence Act are founded on the principle that evidence has to be weighed and not counted. It should be remembered that plurality of evidence is only a rule of prudence and not an inflexible requirement of law. The necessity of plurality crops up in those cases where evidence of a solitary witness is not wholly reliable and where it is, as is the case here, then in view of the provisions contained in section 134 of the Indian Evidence Act, the testimony of a solitary witness is sufficient to convict an accused.
12. However, we are fortunate that we have plurality of evidence in the instant case; not in the form of multiplicity of ocular account but. in that of circumstantial evidence. And It is a time - honoured saying that witnesses may lie but circumstances do not. The incriminating circumstantial evidence to which we have referred above can be classified under two heads namely :
(i) recovery of blood stained clothes, namely shirt, banian and pant on the pointing out of the appellant in the presence of Sr. P. I. Kamble P.W. 10 and public panchas Anil Rajput P.W. 2 and Dipak Jadhav P.W. 11; and
(ii) recovery of the dead body in the presence of Sr. P. I. Kamble P.W. 10 and public panch Devidas Jamdar P.W. 7.
We begin with the evidence of recovery of blood stained shirt, banian and pant on the pointing out of the appellant. It is true that one of the public panchas Anil Rajput had turned hostile because, he stated that although the panchanama is the same but. he was neither shown the accused nor the clothes. However. If we turn to his cross-examination, we find that the learned A.P.P. questioned him as to why did he not tell the police because, the accused was not arrested before him and the clothes were not seized before him, he would not sign the panchanama. He replied that he did not say. But when the A.P.P. persisted with that question, all that he could say was that he did not say.
There is a observation by the learned Trial Judge that while the witness gave the said answer he took long time to answer.
It is obvious that Anil Rajput Is not prepared to speak the truth. However, in view of the fact that he turned hostile, his evidence has to be excluded.
But, even if it is excluded, there remains the implicitly reliable evidence of Dipak Jadhav P.W. 11 and Sr. P. I. Kamble P.W. 10. Both of them have candidly stated that the blood stained shirt, pant and banian of the appellant were recovered in their presence. The said recovery was made under a panchanama. It is pertinent to mention that neither of them had any rancour or illwill against the appellant and in our view, in the absence of the same, they would not have foisted a false incriminating recovery against the appellant.
It is pertinent to mention that the shirt, banian and full pant were sent to the Chemical Analyst. His report shows that they were article Nos. 1, 2 and 3 respectively. His report also shows that on all three of them, human blood bearing A group was found. It is pertinent to mention that the circumstance that the blood stained clothes were recovered from the appellant and sent to the Chemical Analyst, whose report shows that there was human blood on them, was put to the appellant in his statement under section 313 of the Cr.P.C. as Question Nos. 38, 39, 40, 41 and 42 and the common answer which the appellant gave to question Nos. 38 to 41. was I do not know and to Question No. 42, that it is false. We are constrained to observe that we are not prepared to accept these answers.
In our view, the circumstances that the blood stained shirt, banian and pant was recovered from the person of the appellant on which the Chemical Analyst found human blood bearing A group is a highly incriminating circumstance.
We now come to the second leg of circumstantial evidence, namely recovery of dead body on the pointing out of the appellant. In respect of this circumstance, we have the evidence of Sr. P. I. Kamble P.W. 10 and public panch Devidas Jamdar P.W. 7. In the earlier part of our judgment, we have mentioned the manner in which, on the pointing of the appellant, the dead body was recovered from beneath a foliage in the land of M. S. Quarters.
We have gone through the evidence of P. I. Kamble and Devidas Jamdar and we find it to be implicitly reliable. Although they were cross-examined at length, their evidence could not be shaken in respect of this recovery. In our view, this recovery also incriminates the appellant.
14. For the said reasons, in our view, there is both the ocular account and circumstantial evidence of a unimpeachable nature which fixes the involvement of the appellant in the crime.
15. The next question to which we address ourselves is whether the learned Trial Judge was justified in sentencing the appellant to death for the offence under section 302 of the I.P.C. and this is the area which is hotly disputed and contested by the learned counsel for the parties. Whereas, Mr. Shirish Gupte, learned counsel for the appellant strenuously urged that the instant case does not warrant the imposition of death penalty, Ms. Kamath with comparable vehemence urged that it did warrant a death penalty.
We have reflected over the rival submissions and we are constrained to observe that we do not find merit in Ms. Kamath's passionate plea for confirmation of the death sentence.
16. In our view, the imposition of death sentence on the appellant by the learned Trial Judge was occasioned by his ignorance of the ratio laid down by the Supreme Court in the cases Edtga Anamma v. State of Andhra Pradesh,' and Bachan Singhu. State of Punjab. In Ediga Anamma's case in para 26, V. K. Krishna Iyer, J. observed thus : -
Where the offender suffers from socio economic, psychic or penal compulsions insufficient to attract a legal exception or to downgrade the crime Into a lesser one, judicial commutation is permissible, ............................................,.....' A perusal of para 204 of Bachan Slngh's case shows that the two of the mitigating circumstances warranting the imposition of the sentence of life imprisonment are detailed In categories (1) and (7) :
(1) That the offence was committed under the influence of extreme mental or emotional disturbance.
(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
A perusal of para 205 of the Judgment in Bachan Stngh's case would show that the Supreme Court observed that the said mitigating circumstances were undoubtedly relevant circumstances and must be given great weight in the determination of sentence.
17. In our view, from the evidence on record, it Is clear that the appellant was suffering from psychic compulsion which though insufficient to attract a legal exception or to downgrade the crime into a lessor one. was sufficient for judicial commutation in terms of Ediga Anamma'scase. We also feel that the evidence shows that the appellant committed the offence under the influence of extreme mental or emotional, disturbance as laid down In Bachan Singh's case (supra).
In this connection, it would be pertinent to refer to the evidence of Vimalabai P. W. 1, the mother of the deceased. She stated in her F.I.R. and in her statement in the Trial Court, (in ex animation-in-chief] that the appellant used to tell her daughter (deceased) that her three daughters are not from him. It appears that this belief was so firmly ingrained in the mind of the appellant that on account of it, he not only committed the murder of his wife Baby (c) Laxmi but, also that of his daughter Soni and attempted to commit the murders of his two other daughters Sangeeta P.W. 6 and Pooja. We would like to emphasise that no other hypothesis can the act of the appellant of murdering Soni and his act of attempting to commit the murder of Sangeeta P.W. 6 and Pooja be explained. It should be borne In mind that there was no enmity between the appellant and his daughters.
18. Ms. Kamath, A.P.P. strenuously urged that in view of the ratio laid down in Machhi Singh and others v. State of Punjab, and Bachan Singh v. State of Punjab,: the learned Trial Judge was justified in imposing capital punishment on the appellant. Ms. Kamath invited our attention to page 966 of Machhi Singh's case. She pointed out that the Supreme Court in para 32 has observed that death sentence is called for:
"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 ufs-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."
Ms. Kamath urged that the act of the appellant fell in categories (a), (b) and(c), and hence would call for a death sentence. We have perused the said passage from the decision of the Supreme Court. We are constrained to observe that Ms. Kamath overlooked para 33(iv) of the said decision wherein the Supreme Court observed thus : -
"33(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 the aggravating and the mitigating circumstances before the option is exercised."
Ms. Kamath also overlooked the passages which we have extracted from the decision of Edfga Anamma's case and Bocfian Singh's case. To our knowledge, the said passages have not been declared to be bad law by the Supreme Court in any subsequent decision.
We now refer to the next decision cited by Ms. Kamath namely that Bachan Stngh's case. .
Ms. Kamath invited our attention to paras 198 and 200 of the said decision. She specifically emphasised para 200 wherein the Supreme Court observed thus :
"Aggravating circumstances : A Court may, however, in the following cases impose the penalty of death in its discretion :
(a) If the murder has been committed after previous planning and involves extreme brutality : or
(b) If the murder involves exceptional depravity ; or
(c) if the murder is of a member uf any of the armed forces of the Union or of a member of any police force or of any public servant and was committed-
(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant;
(d) if the murder is of a person who had acted in the lawful discharge of his duty under section 43 of the Code of Criminal Procedure. 1973 or who had rendered assistance to a Magistrate or a Police Officer demanding his aid or requiring his assistance under section 37 and section 129 of the said Code-"
Ms. Kamath urged that the act of the appellant would fall in categories (a) and (b) and would call for a death sentence.
We are constrained to observe that Ms. Kamath over looked paras 204. 205 and 207 of the said decision, when she canvassed her submission. We have already referred to what has been laid down by the Supreme Court in paras 204 and 205.
Para 207 reads thus :
"There are numerous other circumstances justifying the passing of the lighter sentence: as there are counter availing circumstances of aggravation. "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society." Nonetheless, it cannot be over emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a literal and expansive construction by the Courts in accord with the sentencing policy writ large in section 354(3). Judges should never be blood thirsty. Hanging of murderers has never been too good for them- Facts and figures albeit incomplete, furnished by the Union of India, show that in the past Courts have inflicted the extreme penalty with extreme infrequency a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is. therefore imperative to voice the concern that Courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with even more scrupulous care and humane concern, directed along the highroad of legislative policy outlined in section 354[3) viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."
19. In our view, the considerations on which we are setting aside death penalty are very much legal considerations; sanctioned by the Supreme Court in (supra) and AIR 1983 SC 898 (supra).
20. For the said reasons bearing in mind that Vlmlabai, the mother of the deceased has stated that the appellant was telling her daughter that his daughters were not from him and also bearing in mind the ratio laid down by the Supreme Court In (supra) and AIR 1983 SC 898 (supra) the instant case cannot be classified In the category of "rarest of rare" and since it cannot be classified in that category, we have no option but, to downgrade the sentence of the appellant from death sentence to imprisonment for life.
21. The next question which crops up is whether the learned Trial Judge was justified in directing that the sentence of the appellant on all the three counts namely sections 302, 307 and 201 of the I.P.C. should run consecutively. Since all the three offences were committed In one transaction and in para 10 of the decision of the Supreme Court Mohd. Akhtar Hussain alias Ibrahlm Ahmed Bhatti v. Assistant Collector of Customs (Prevention) Ahmedabad and others,' the Supreme Court has held that if the offences are committed in one transaction, the sentence should run concurrently, the sentence of the appellant on all the three counts should be directed to run concurrently.
We are extracting the said observations of the Supreme Court. They read thus :
10. "The basic rule of thumb over the years has been the so called single transaction rule for concurrent sentences. If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. It is proper and legitimate to have concurrent sentences. But. this rule has no application if the transaction relating to offences Is not the same or the facts constituting the two offences are quite different. "
22. This leaves us with the question whether the life imprisonment of the appellant in both Confirmation Cases be directed to run concurrently or consecutively. Whereas, Mr. Gupte urged that it should be directed to run concurrently, Ms. Kamath contended that it should be directed to run consecutively. We have bestowed our anxious consideration on the rival submissions and we find merit In Mr. Gupte's submission.
Section 427 of the Cr.P.C. reads thus :-
"Sentence on offender already sentenced for another offence - (1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to Imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence :
Provided that where a person who has been sentenced to imprisonment by an order under section 122 in default of furnishing security is, whilst undergoing such sentence, is sentenced to imprisonment for an offence committed prior to the making of such order the latter sentence shall commence immediately.
(2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.
23. A perusal of section 427(1) of the Cr.P.C. would show that where a person is undergoing a sentence of imprisonment, and is sentenced to undergo imprisonment or imprisonment for life on a subsequent conviction, his sentence in the latter case, shall commence after the expiry of his sentence in the former case, unless the Court directs that the subsequent sentence shall run concurrently with the previous sentence.
Under section 427(2) of the Cr.P.C. the position is however different. It stipulates that when a person already undergoing sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with the previous sentence.
In the instant case, section 427(1) of the Cr.P.C. would not be applicable, but, section 427(2) would be because after we had converted the sentence of death into one of life imprisonment in Confirmation Case No. 1 of 2000 and decided Criminal Appeal No. 222 of 2000 in the said terms yesterday (3rd October, 2000) we took up Confirmation Case No. 2 of 2000 along with Criminal Appeal No. 222 of 2000, (by a common appeal, the death sentences have been challenged in both the cases) which we decided today. i.e. in 4th October. 2000. In them, we also converted sentence of death into imprisonment for life.
In the said factual matrix the appellant was undergoing sentence of imprisonment for life in Confirmation Case No. 1 /2000 when we sentenced him to undergo imprisonment for life in Confirmation Case'No. 2/2000. Hence, section 427(2) of the Cr-P.C. would be applicable. Consequently, the sentences would run concurrently.
24. There is a rationale as to why section 427(2) of the Cr.P.C. has been enacted. It is because a sentence of imprisonment for life means a sentence for entire life and therefore, there can be no question in the event of a person being sentenced to life imprisonment for two offences, of his sentence commencing to run in the latter offence after he has served out his sentence in the former offence.
25. IN THE RESULT :
(A) Confirmation Case No. 2 of 2000 is decided in terms that the reference made by the Ilnd Additional Sessions Judge, Kalyan, for confirmation of death sentence of Raju Dadaba Borge for the offence under section 302 of the I.P.C. is rejected and instead he is directed to undergo a sentence of Imprisonment for life for the said offence. However, the sentence of fine of Rs. 10,000/- and two years R. I. in default for the said offence is confirmed.
(B) Criminal Appeal No. 222 of 2000 is partly allowed.