Delhi District Court
State vs . Bharat Kumar @ Manoj @ Mannu, on 20 November, 2013
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 46/13.
Unique Case ID No. 02405R0109072011.
State Vs. Bharat Kumar @ Manoj @ Mannu,
S/o Sh. Chaggan Lal,
R/o H. No.107, 108,
Manglapuri Phase-I,
New Delhi.
FIR No.230 dated 16.11.2010.
U/s. 363 IPC.
P.S. Palam Village.
20.11.2013
ORDER ON SENTENCE
1.Vide separate judgment dated 11.11.2013 of this court, the accused has been convicted for having committed the offences u/s.363 IPC, u/s.376 IPC and u/s.302 IPC.
2. Arguments heard on the point of sentence.
3. Ld. APP argued that the convict is a menace to the society and deserves nothing less than death sentence. She submitted that the crime committed by the convict is immensely brutal, diabolical and grotesque and arouses a feeling of extreme indignation. According to her the rape and murder of a minor girl, who had not yet reached her teens, should not be viewed lightly and the perpetrators of such like crimes should be awarded SC No.46/13. Page 1 of 14 extreme penalty. She submitted that there are no mitigating factors appearing on record in favour of the accused which may entitle him to a lesser sentence i.e. sentence of life imprisonment. In support of her submissions, she relied upon two judgments of the Supreme Court reported as Dhananjay Chatterjee vs. State of W.B. (1994) 2 SCC 220 and Rajendra Prabhadrao Wasnik vs. State of Maharashtra 2012 II (Crl.) (SC) 245. In Dhananjay's case, the Supreme Court while holding that the measure of punishment in a given case must depend upon the atrocity of crime; the conduct of the criminal and the defenceless as well as unprotected state of the victim and should reflect the public abhorrence of the crime, upheld the death sentence awarded for the rape and murder of an 18 year old school going girl by a security guard. It observed that the crime was not only inhuman and barbaric but also totally ruthless crime of rape followed cold blooded murder and an affront to the human dignity of the society and its savage nature had shocked the judicial conscience.
4. In Rajender's case the Supreme Court was dealing with a case relating to rape and murder of a three year old infant girl by a 31 year old married man and while holding that the scale of justice only tilts against the accused as there is nothing but aggravating circumstances from the record, upheld the death sentence awarded to him.
5. On the other hand, the ld. Counsel for the convict, while attempting to convey to the court that sentence of life imprisonment is the rule and death sentence only an exception to SC No.46/13. Page 2 of 14 be awarded very rarely; that death sentence should not be awarded in cases based upon circumstantial evidence only; that death sentence should not be imposed when the offender is of young age and there is possibility of his reform and rehabilitation and has no past criminal record and is not likely to be menace or threat or danger to society, cited following judgment of the Supreme Court:
(i) Gudda @ Dwarikendra vs. State of M.P.
(Criminal appeal Nos. 1566-1567 of 2013
decided on 30.09.2013).
(ii) Sunil Damodar Gaikward vs. State of
Maharashtra (Criminal appeal Nos. 165-166 of 2011 decided on 10.09.2013).
(iii) Shankar Kisanrao Khade vs. State of Maharashtra (Criminal Appeal Nos. 362-363 of 2010 decided on 25.04.2013).
6. The ld. Counsel submitted that the convict was a 20 year old young boy at the time of commission of crime and as per his disclosure statement recorded by the IO, was heavily drunk at that time, thus not having rational faculties of mind to distinguish between right and wrong. According to him the convict is the only son of his parents and having clean past antecedents. The ld. Counsel further submitted that the statement of the convict in his disclosure statement that he attempted to commit suicide after the offence, indicates that he had got feeling of remorse and thus is capable of reformation. He also argued that the murder of the little girl was not premeditated and the convict killed her only for SC No.46/13. Page 3 of 14 the reason that she knew him very well and may disclose his identity to others. According to the ld. Counsel these are sufficient mitigating factors in favour of the convict entitling him seek life imprisonment. He urged this court to spare the convict from the gallows by awarding life imprisonment to him u/s 302 IPC and a lighter sentence for the offence u/s 376 IPC.
7. Paragraphs No.32 and 33 of the Gudda's case (supra) are relevant to be extracted hereunder:-
"32. As stated above, on one hand the crime is pre-mediated in respect of the deceased husband, while on the other, no motive or pre-orchestration could be culled out for the other two deceased persons. The two murders seem to have translated due to his sudden realization and extreme fear of being caught for the murder of the Sunil Gupta and also to save himself from being shunned by the society. Having said so, the brutality envisaged in the pre-mediated murder of Sunil Gupta alone, in the light of present facts, does not inspire confidence so as to place it in the category of "rarest of the rare".
Further, the appellant is a young man of abut 35 years and neither does he have any criminal antecedents nor is it stated that he is or has been anti society element. The future possibilities of his reform also cannot be ruled out.
33. In a civilized society- a tooth for a tooth SC No.46/13. Page 4 of 14 and an eye for an eye ought not to be the criterion to clothe a case with "rarest of the rare" jacket and the Courts must not be propelled by such notions in a haste resorting to capital punishment. Our criminal jurisprudence cautions the courts of law to act with utmost responsibility by analyzing the finest strands of the matter and it is in that perspective a reasonable proportion has to be maintained between the brutality of the crime and the punishment. It falls squarely upon the court to award the sentence having due regard to the nature of offence such that neither is the punishment dis-proportionately severe nor is it manifestly inadequate, as either case would not sub-serve the cause of justice to the society. In jurisprudential terms, an individual's right of not to be subjected to cruel, arbitrary or excessive punishment cannot be outweighed by the utilitarian value of that punishment."
8. In Sunil Damodar's case (supra), the Supreme Court reproduced paragraphs 106 and 122 of its earlier judgment reported as Shankar Kishanrao Khade vs. State of Maharashtra (2013) 5 SCC 546 wherein it had been held that young age of the accused, the possibility of his reformation and rehabilitation, his having no prior criminal record, his not likely to be menace or threat or danger to society, the crime not being premeditated and the case being one of circumstantial evidence are the factors which have influenced the court in past for commutation of death penalty into life imprisonment whereas the SC No.46/13. Page 5 of 14 principal reason weighing with the court in confirming the death penalty include:-
(i) the cruel, diabolic, brutal, depraved and gruesome nature of crime;
(ii) crime results in public abhorrence, shocks the judicial conscience or the conscience of the society or the community.
(iii)The reform or rehabilitation of the convict is not likely or that he would be a menace to society;
(iv)the victims were defenseless and
(v) the crime was either unprovoked or that it was premeditated.
9. In Shankar Kishanrao's case (supra) the Supreme Court converted to imprisonment for life, the death sentence awarded to a convict for rape and murder of an 11 year old girl. The court took note of the aggravating circumstances and mitigating circumstances (crime test) explained in Bachan Singh vs. State of Punjab (1980) 2 SCC 684 and Machhi Singh vs. State of Punjab (1983) 3 SCC 470 which have already been noted herein above.
10. It may be noted here that neither Gudda's case nor Sunil Dhamodar's case related to rape and murder of a girl. In Gudda's case, the accused had killed a couple and their three year old daughter as he suspected that the deceased husband had illicit relations with his wife. In Sunil Dhamodar's case, the accused had killed his wife and two sons as he did not earn enough to maintain his family and to give proper treatment to one of his sons suffering SC No.46/13. Page 6 of 14 from Asthma. He had attempted to kill his daughter also but she escaped death by dint of sheer providence.
11. I have considered the submissions made on by both the sides, perused the judgments referred and have revisited the circumstance, in which the convict has committed the offence.
12. I am conscious of the basic principles evolved by the Supreme Court in its various judgments governing the award of death sentence and those are :-
(i) The extreme penalty of death need not be inflicted except in gravest cases of extremes culpability.
(ii) Before opting for the death penalty, the circumstances of the offender also require to be taken into consideration alongwith the circumstances of the crime.
(iii)Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv)A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so, the mitigating circumstances have to be accorded full weightage and just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
13. In Bachan Singh's case, the Supreme Court has ruled that the death sentence should be imposed only in rarest of SC No.46/13. Page 7 of 14 rare cases. In Machi Singh & Ors. vs. State of Punjab, 1983 SC 957, the Supreme Court extended the "rarest of rare cases"
formulation beyond the aggravating factors listed in Bachan Singh's case (supra) to cases where "collective conscience" of society is so shocked that it will expect the holders of judicial powers in center to inflict death penalty irrespective of their personal opinion as regards or otherwise, of retaining death penalty. The court also underlined that full weightage must be accorded to all mitigating circumstance in a case and just balance has to be struck between aggravating and mitigating circumstances.
14. In various other judgments, the Supreme Court has explained that "rarest of rare cases" comes when a convict would be a menace and threat to the harmonious and peaceful co- existence of the society. The crime may be henious or brutal but may not be in the category of "rarest of rare cases". 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 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 movement or provocation and indulges himself in a deliberately planned crime and meticulously executes it, the death sentence may be be 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 SC No.46/13. Page 8 of 14 committed in a most cruel and inhuman manner, which is 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 indulge in organised criminal activities, death sentence should be awarded. (see C. Hariappan & Ors. vs. State of Tamilnadu, AIR 2010 SC 3718; Rabindra Kumar Pal alias Dara Singh vs. Republic of India (2011) 2 SCC 490; Surendra Kohli vs. State of U.P and Ors. (2011) 4 SCC 80; Sudam @ Rahul Kaniram Jhadhav vs. State of Maharashtra (2011) 7 SCC 125).
15. In the instant case, no doubt the convict was 20 years old when he committed the offence and is a first time offender. These alone are, in my opinion, the mitigating factors appearing on record in his favour. The crime committed by him is snot only brutal, diabolic and gruesome but also immensely abhorrent, ghastly and indignant. The deceased, a minor girl aged between 7 and 11 years, was residing in his neighbourhood. He lured her by offering her Kurkure and chocolate. She didn't doubt his intentions and she might have trusted him, being her neighbour and accordingly accompanied him. The convict took her to a secluded field, first raped her and then killed her by causing severe injuries upon her head and face. He left her dead in the field and himself absconded.
16. The convict found an easy prey in the minor girl (deceased) to gratify his lust. He not only satiated his sexual lust upon her but then killed her too. Thus he has committed not one but two most grave offences i.e. rape and murder. There is no SC No.46/13. Page 9 of 14 material or evidence on record to show that the convict did not intend to murder the deceased girl. Had he intended to only ravish the girl and not to kill her, he would have let her go after sexually assaulting her with a threat not to disclose the incident or his identity to anybody. The fact that he took the girl to a far off secluded place from their locality and he killed her brutally soon after satisfying his lust, shows that his intention was to rape and kill her.
17. Even if it be accepted that the convict had no intention to kill the deceased and he killed her for fear of being identified as the offender, then also the matter does not become anymore different. The fact remains that the convict killed the deceased after sexually assaulting her. If any benefit is sought to be given to the convict on this score, it would amount to acknowledging that killing a girl after raping her is not a serious crime and this would encourage the rapists to kill their victims in order to escape being caught or identified, having the belief in their minds that law is on their side and they are not going to be hanged. Given the increase in cases of rape and murder throughout the country, I feel that the time has come when the killing of victim by the rapist after rape, even if it is aimed only to avoid identification, should be viewed very seriously and the perpetrators should not be spared of the gallows.
18. I don't consider that the convict had any sense of remorse or guilt and can be reformed. His one line statement in the disclosure statement that he had attempted to commit suicide, cannot be taken to mean that he was overwhelmed with any SC No.46/13. Page 10 of 14 feeling of guilt or contrition over his act. In my opinion, if an accused gets a feeling of remorse or guilt, he either confides with the person he trusts, about his act or surrenders before the Police. The convict had not done either. He absconded after the commission of crime and could be arrested only after three days. He as well as his father spoke lie in the Court by projecting false defences in vain bid to obtain an acquittal order.
19. The principle that death penalty should not be imposed where the conviction is based only upon circumstantial evidence, has no application to cases of rape and murder where we have scientific evidence also on record against the accused apart from other incriminating circumstances. The scientific evidence in the nature of DNA report is a clinching piece of evidence connecting the accused with the crime, leaving at rest any iota of doubt regarding complicity of the accused in the crime. The DNA finger printing, being an exact science, assumes a higher degree of reliability and acceptability than other circumstances. Therefore, where the DNA report indicts an accused for the offence of rape and murder, he cannot be heard to argue that he can't be given death sentence as there is no eye witness to the occurrence. I consider that the DNA report, if found trustworthy and acceptable, is as good as ocular testimony.
20. The convict herein has committed the rape of a minor girl aged anywhere between 7 years and 11 years and caused her death. There cannot be any more ghastly, brutal and grotesque crime that the instant one. The convict has shown extreme sense of brutality and depravity which every member of the society SC No.46/13. Page 11 of 14 would view with abhorrence and indignation. The crime committed by the convict, undoubtedly falls in that class which shake the conscience of society and call for harshest punishment. When we talk of shaking the conscience of society, we have seen very recently that mere rape of a minor or gang rape has done it, not to speak of rape and murder of a minor.
21. There is no doubt that in the instant case the convict was in dominating position as the victim was an innocent minor child, hardly in a position to resist the sinister acts of the convict. By the very nature of the offence it is an obnoxious act of the highest order. The victim child was not only raped but also lost her life in the process.
22. It is not possible to ignore the social impact of the crimes like rape and murder as these offences have great impact upon the social order. Public interest cannot be lost sight of and hence these offences per se require exemplary treatment.
23. In recent past, the society has seen a steep increase in the incidents of sexual assaults upon women and more particularly upon minor girls. Time has come when the courts should deal with such heinous crimes sternly in order to send strong message to the society so that nobody dares to engage in such brutal crimes.
24. In Machhi Singh's case, the Supreme Court had observed in para 39 as under:-
"39.In order to apply these guidelines inter alia the following SC No.46/13. Page 12 of 14 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?"
25. Upon consideration of the facts and circumstances of the present case, the answer I find to the aforesaid two questions is a bold 'yes'. The rape and murder of a minor girl is a distinct class of offences and cannot be equated to cases involving only rape or only murder. It is a combination of two distinct heinous offences calling for the capital punishment. The perpetrators of crimes like rape and murder forfeit their right to live. The life imprisonment is highly inadequate in these cases and there is no alternative but to impose death sentence. These criminals are a menace to the society and they don't deserve to be kept alive.
26. The aggravating factors appearing in the present case for outweigh the mitigating factors such as young age of the convict and his clean past record.
27. There is no manner that the rape and murder of a minor child falls in the category of "rarest of rare" cases, warranting capital punishment.
SC No.46/13. Page 13 of 1428. For the aforesaid reasons the convict is sentenced as under :
(1) To imprisonment for a period of three years alongwith a fine of Rs. 10,000/- for the offence punishable u/s 363 IPC. He shall undergo further imprisonment for a period of three months in case of default in payment of fine; and (2) To imprisonment for life with a fine of Rs. 50,000/- for the offence punishable U/S 376 IPC. The convict shall undergo further imprisonment for a period of one year in case of non payment of fine; and (3) To death for the offence punishable U/S 302 IPC with a fine of Rs. 50,000/-.
29. It is directed that the convict shall be hanged till death.
30. The sentence of death, however, is subject to confirmation by the Hon'ble High Court of Delhi as provided U/s. 366 Cr.PC.
31. Copies of judgment dated 11.11.2013 and of today's order on sentence be supplied to the convict.
Announced in open (VIRENDER BHAT)
Court on 20.11.2013. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.46/13. Page 14 of 14