Allahabad High Court
Najeem Miyan vs State Of U.P. on 6 March, 2020
Equivalent citations: AIRONLINE 2020 ALL 302
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 22.1.2020 Delivered on 6.3.2020 CAPITAL CASE No.198 of 2018 with: Reference No.03 of 2018 Najeem Miyan ....Appellant State of Uttar Pradesh ....Respondent .... Counsel for the Appellant : Sri Suresh Singh Counsel for Respondent : Sri J K Upadhyay, AGA .... Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
(Per: Pritinker Diwaker, J) This death reference was made to this Court under Section 366 of the Criminal Procedure Code, 1973 (in short 'Cr PC') for confirmation of sentence awarded to the appellant. The capital case and the death reference are heard together and this judgment will govern both the capital case as well as the reference.
2. A large number of cases in recent times coming before the Courts of law involving rape and murder of young boys/girls, is a matter of concern. In the instant case, boy was about six years of age, who was the victim of sexual assault and animal lust of the accused appellant, he was not only sexually assaulted but was murdered by the accused appellant.
3. This death reference and the capital case arise out of the judgment and order dated 10.4.2018 passed by the Court of Additional Sessions Judge/Court No.1, Pilibhit in Special Sessions Trial No.51/2017 in which, accused/appellant herein was tried, found guilty, convicted and sentenced to undergo death sentence and to pay a fine of Rs.25,000/- for the offence punishable under Section 302 of IPC, to undergo rigorous imprisonment of ten years and to pay a fine of Rs.10,000/- for the offence punishable under Section 377/511 of IPC and to undergo life imprisonment and a fine of Rs.10,000/- for the offence punishable under Section 3/4 of POCSO Act. In default of payment of fine, he shall undergo two years' rigorous imprisonment; one year's rigorous imprisonment and one year's rigorous imprisonment under Sections 302, 377/511 of IPC and Section 3/4 of POCSO Act respectively.
4. In the present case, deceased was a young boy aged about six years, who went missing on 21.2.2017 from his house. He was searched immediately and at about 12:30 in the afternoon, (PW-3) Laik Ahmad, informed the informant (PW-1) Moin (uncle of the deceased) that he saw accused-appellant Nazeem Mian, carrying Monish (deceased) to the house of Mobin in his arms. Informant immediately rushed to the house in question, and saw the accused-appellant cutting the body of Monish in pieces. Hue and cry was raised by him and hearing the same, number of his neighbours including (PW-2) Uvash reached to the place of occurrence; information was also given to the police who also immediately reached to the place of occurrence; entered the house of Mobin and the accused-appellant was caught red handed. At 12:45 in the afternoon, beheaded dead body of the deceased was found and the body was cut in several pieces, even internal organs of the body were taken out from the body of the deceased which were clustered near the dead body. The crowd gathered there, made an attempt to catch the accused-appellant, but upon information, police made an attempt to make the situation normal. During this, villagers had closed their shops and there was total chaos in the village. Police brought the accused-appellant along with them to the police station and on the basis of written report Ex.Ka.1 lodged by (PW-1) Moin, at 1:30 pm FIR Ex.Ka.16 was registered against the accused-appellant under Sections 377 and 302 of IPC read with Section 3/4 of POCSO Act.
Inquest on the dead body of the deceased was conducted, vide Ex.Ka.6 on 21.2.2017; photograph of the dead body was marked as Material Ex.1. and the body was sent for postmortem which was conducted on the same day, vide Ex.Ka.4 by (PW-4) Dr S K Chawla.
As per Autopsy Surgeon, following injuries were noticed on the body of the deceased:
Injuries - all Ante-mortem:
External Injuries:
1. Deep Hair singed out with blood, Head chopped out from body at level of C-1 vertebra, Large vessels, Trachea, Hyoid bone not traceable.
2. A vertical midline. Incised wound 38 cm x 5 cm in the midline from the level of neck to the genetalia and the intervening gluteal region.
3. On the ventral side skin peeled out to depth vertebra and ribeage below upto the gluteal region.
Internal Injuries:
4. All internal organs viz-a-viz Heart, spleen, liver, small and large intestines separated out and kept in cluster. Both kidneys, attached in place.
5. Internal organs absolutely pale with occasional clots on the body.
6. Missed organs - Intercostal muscles, fatty tissues. Alimentary canal with Rectum & Anal canal, Larynx, Hyoid bone, Trachea- Oesophagus also not traceable.
Cause of Death Death as a result of Shock and Haemorrhage due to syncope, due to ante-mortem injuries.
5. While framing charge, trial Judge has framed charge against the accused-appellant under Sections 377 and 302 of IPC and Section 3/4 of POCSO Act.
6. So as to hold accused appellant guilty, prosecution has examined seven witnesses. Statement of the accused-appellant was recorded under Section 313 of Cr PC in which, he pleaded his innocence and false implication.
7. By the impugned judgment and order, the trial Judge has convicted the appellant and sentenced, as mentioned in paragraph-3 of this judgment. Hence this appeal.
8. Counsel for the appellant submits:-
(i) that the evidence of last seen by (PW-3) Laik Ahmad is not reliable and it appears that he has falsely implicated the accused appellant.
(ii) that a very improbable story has been put forth by the prosecution where it is alleged that when (PW-1) Moin and (PW-2) Uvash and other villagers, including the police reached to the house of Mobin, accused-appellant was still cutting the body of the deceased in pieces. It has been argued that no normal man would commit such heinous offence and it appears that the deceased was murdered by some third person. Counsel for the accused appellant submits that unfortunately, accused-appellant, who is an innocent and simple villager, was not mentally sound and he has been falsely implicated in the case.
(iii) that there is no conclusive and clinching evidence showing the involvement of the accused-appellant in the commission of crime under Section 377 of IPC; even postmortem report does not suggest the same.
(iv) that the accused-appellant is suffering from mental ailment, namely, 'Unspecified Non-Organic Psychosis' (F- 29/0).
9. On the other hand, learned State Counsel submits:
(i) that the trial Court is fully justified in awarding death sentence to the accused-appellant.
(ii) that a young boy, aged about six year, has been done to death by the accused-appellant for no fault of him.
(iii) that upon receiving information of last seen by (PW-3) Laik Ahmad, complainant (PW-1) Moin and (PW-2) Uvash reached to the house of Mobin and there, they were perplexed to see the accused-appellant sitting with the pieces of dead body of the deceased.
(iv) that while referring to the photograph of the dead body, Material Ex.1, it has been argued that the offence has been committed in such a brutal manner where the accused- appellant had taken out the internal organs of the dead body, including heart, spleen, small and large intestines, liver etc. Even Head of the deceased was chopped by the accused- appellant and kept near the dead body.
(v) that after receiving information, police party reached to the place of occurrence and they also saw the brutality done by the accused-appellant in killing the deceased.
(vi) that in 313 Cr PC statement, instead of offering any defence, most of the questions have been admitted by the accused- appellant and thereafter, nothing remains in favour of the accused-appellant and only conclusion is the award of death sentence.
(vii) that from the spot, one knife and one blade was seized and as per FSL, blood was found on both these articles, whereas human blood was found on the knife.
(viii) that taking into consideration the brutality of the offence; age of the victim and acts of perversion on the person of the victim, cumulatively, the sentence awarded by the trial Court is just and proper and does not call for any interference by this Court in its appellate jurisdiction.
(ix) that the accused appellant was found sitting near the dead body of the deceased and blood was also found on his mouth and hands and thus, possibility that the accused appellant might have eaten certain parts of the body, which have been found missing, cannot be ruled out.
(x) that when the accused appellant could not succeed in committing unnatural sex with the deceased, he killed him and this fact, has been admitted by the accused appellant in his 313 Cr PC statement while answering question no.8.
10. Learned State Counsel has also produced a recent medical report of the accused-appellant dated 24.11.2019, mentioning therein that the accused-appellant is not suffering from any mental ailment and is completely fit. Medical report dated 24.11.22019 is given to learned counsel for the defence and is taken on record.
11. (PW-1) Moin, is an uncle of deceased Monish. He states that he knew the accused appellant. On 21.2.2017, his nephew Monish went missing; he was searched by him and other persons and at about 12:30 in the afternoon, he was informed by (PW-3) Laik Ahmad that accused-appellant had taken the deceased in the house of Mobin on his lap. He (this witness) entered the house of Mobin and there in a room, he saw the accused-appellant cutting the dead body of the deceased into pieces by a knife and the body was in naked condition. He immediately raised his cries and upon hearing the same, Anish Ahmad, Iqbal Ahmad, Uvash and Fahmeez reached there and upon receiving information, the police party also reached there and saw the occurrence. Chopped head was kept separately by the appellant and he was cutting the body in pieces. The accused appellant was arrested at the place of occurrence itself and at that time, he was having a knife with him. He states that after seeing the incident, he gathered an impression that the accused appellant did the offence with an intention to commit unnatural sex with the deceased, which might have been protested by him, resulting the commission of offence. He further states that crowed gathered at the place of occurrence wanted to beat the accused appellant, but he was saved by the police. He further states that because of the terror of the incident, villagers had closed their shops and that at his instance, FIR was registered against the accused appellant. He further states that a knife kept by the accused appellant in his hand and was stained with blood. He further states that the clothes of the accused appellant were also stained with blood and he also noticed blood on his mouth and hands. He further states that from the place of occurrence, one bloodstained blade was also seized. Photographer was called, who took a photo of mutilated dead body of the deceased, vide Material Ex.1. Seized articles were produced in the Court and this witness identified all those articles, including knife, blade and other articles. He further states that the body was beheaded; intestines, lungs, liver and heart were separated from the body.
12. (PW-2) Uvash, is other eyewitness to the incident. He states that on the date of occurrence at about 12:30 in the afternoon, he was in his house and upon hearing the commotion, when he reached to the house of Mobin, he saw the accused-appellant having a knife in his hand and then, he noticed the mutilated dead body of the deceased and that the accused appellant was cutting the body in pieces. He also states that he noticed blood on the mouth and hands of the accused appellant. He further states that (PW-1) Moin and Anish were also present at the spot itself.
13. (PW-3) Laik Ahmad, is a witness of last seen, has stated that on the date of occurrence at about 11:45 pm, he saw accused appellant taking the deceased towards the house of Mobin on his lap. He states that as a lot of villagers used to go to the house of Mobin for consuming plums, as a plum tree was in his house, he did not pay much attention as to why the accused appellant is going to said house. However, when he saw Moin, Anish and Nazeem searching the deceased, he informed them that he saw the accused appellant taking the deceased in his lap in the house of Mobin. He further states that after informing this fact to Moin, he left for another village Karjaina to attend one wedding and there, he received telephonic information from his son and daughter that Monish have been killed by the accused appellant.
14. (PW-4) Dr S K Chawala, conducted postmortem on the body of the deceased, vide Ex.Ka.4. He states that the deceased was a young boy of six years; his dead body was in mutilated condition and the separated head was also sent for postmortem. Following injuries have been noted on the body of the deceased:
"External Injuries:
1. Deep Hair singed out with blood, Head chopped out from body at level of C-1 vertebra, Large vessels, Trachea, Hyoid bone not traceable.
2. A vertical midline. Incised wound 38 cm x 5 cm in the midline from the level of neck to the genitalia and the intervening gluteal region.
3. On the ventral side skin peeled out to depth vertebra and ribeage below upto the gluteal region.
Internal Injuries:
4. All internal organs viz-a-viz Heart, spleen, liver, small and large intestines separated out and kept in cluster. Both kidneys, attached in place.
5. Internal organs absolutely pale with occasional clots on the body.
6. Missed organs - Intercostal muscles, fatty tissues. Alimentary canal with Rectum & Anal canal, Larynx, Hyoid bone, Trachea- Oesophagus also not traceable.
Cause of Death Death as a result of Shock and Haemorrhage due to syncope, due to ante-mortem injuries."
15. (PW-5) Sacchidanand Ray, is the first Investigating Officer. He states that he reached to the place of occurrence and started investigation. In his presence, photographer took the photograph of mutilated dead body, vide Material Ex.1 and inquest was conducted. He further states that during investigation, he was informed by Sameem Begam, Sajida, Noori, Haseena Bano, Shabina, Lal Mohammad and Mobin that, quite often, the accused-appellant used to tease young kids and everybody was troubled with his conduct, but to avoid dispute/litigation and police action, no complaint was made to the police, resultantly, occurrence of the present incident. He further states that 100 number vehicle reached to the police station at about 12:45 in the afternoon and they disclosed the incident.
16. (PW-6) Jitendra Pal Singh, recorded FIR, vide Ex.Ka.16. He also states that when he saw the accused appellant, his clothes were bloodstained and that he also noticed blood on his face. Accused-appellant was fully conscious and normal.
A question was put to this witness by the Court as to when the accused appellant was in the police station, he was sent for mental check up. Answer was given by the witness that the accused was normal and healthy and, therefore, he was not sent for medical check up. He has further clarified that as the activities of the accused appellant were not abnormal, he did not make any entry regarding his mental condition.
17. (PW-7) Jitendra Singh Yadav, is the second Investigating Officer, has duly supported the prosecution case. He also filed charge-sheet against the accused appellant. He has further clarified that no document regarding medical treatment of the accused appellant has been filed, as he was found medically fit.
18. In 313 Cr PC statement, various questions were put to the accused appellant. While answering question no.1, which relates to the commission of unnatural sex with the deceased and killing him, he replied that this is not correct. He also denied the fact that he took the deceased in his lap to the house of Mobin. He, however, has admitted the fact that the house of Mobin was vacant and that Moin has made a statement that when he reached to the house of Mobin, he saw him (accused appellant) cutting the body of the deceased in pieces. Answering this question, the accused appellant has admitted the fact that he did the said act. He has also admitted the fact that as the deceased had refused to allow him to have physical relation with him, he first killed him and then cut his body in pieces. He has further admitted the fact that certain persons, within the vicinity, have informed that he (accused appellant) used to tease the small children. While answering this question, the appellant says 'yes'. He has also admitted the fact that, at the time of incident, he was fully conscious and his mental condition was normal. He, however, has denied the fact of posting of certain officers in police station by saying he is not aware of the same. The questions and answers put to the accused appellant in 313 Cr PC statement reflect that his mental condition was normal and he was not having any mental problem at the time of recording his 313 Cr PC statement. True it is that merely on the basis of 313 Cr PC statement, accused cannot be convicted, but it can be relied upon and referred to by the Court while considering the other facts and circumstances of the case.
19. Close scrutiny of the evidence makes it clear that on 21.2.2017, the accused-appellant took deceased Monish in the house of Mobin and killed him in a brutal manner. While searching deceased-Monish, when Moin and Ovash reached to the house of Mobin, they found accused appellant sitting and cutting the dead body of the deceased in various pieces; he was having a knife with him and his hands and mouth were stained with blood. From the spot, bloodstained knife and blade were seized. The brutality of the offence can be seen by the act of the accused appellant where the beheaded body was found in several pieces. A reference of the same may be made as under:
"All internal organs viz-a-viz Heart, spleen, liver, small and large intestines separated out and kept in cluster. Both kidneys, attached in place.
Internal organs absolutely pale with occasional clots on the body.
Missed organs - Intercostal muscles, fatty tissues. Alimentary canal with Rectum & Anal canal, Larynx, Hyoid bone, Trachea- Oesophagus also not traceable."
Even when the police reached to the place of occurrence, they found the accused appellant sitting with the pieces of body. (PW-3) Laik Ahmad, a witness of last seen, has also supported the prosecution case and has stated that when Moin was searching the deceased, he informed him that he saw the accused-appellant, carrying the deceased in his arms to the house of Mobin.
20. Considering the statements of (PW-1) Moin, (PW-2) Uvash and (PW-3) Laik Ahmad and the police officials, there is no hesitation for this Court to hold that it is the accused appellant who committed the murder of the deceased in a brutal manner. Even in his 313 Cr PC statement, the accused appellant has admitted his guilt and has stated that it is he who killed the deceased. True it is that merely on the basis of admission made by an accused in his 313 Cr PC statement, he cannot be convicted, but the law in this respect is well settled that if other piece of evidence reflects the involvement of the accused in commission of the offence, his 313 Cr PC statement can be treated as an additional evidence against him. The evidence also reflects that the accused appellant was habitual of teasing/harassing young children.
21. Considering all these aspects of the case, it appears that the accused appellant lifted deceased Monish in his arms to the house of Mobin and made an attempt to have unnatural sex with him. When the deceased refused to succumb to the pressure of the accused appellant, he was brutally killed by him. Taking all these aspects of the matter, in our considered opinion, the trial Court was fully justified in convicting the accused appellant under Sections 302, 377/511 of IPC and Section 3/4 of POCSO Act.
22. Upholding the conviction of the accused appellant, we proceed to consider the question of 'death sentence' awarded to him by the Court below under Section 302 of IPC.
23. Capital punishment has been the subject-matter of great social and judicial discussion and catechism. From whatever point of view it is examined, one indisputable statement of law follows that it is neither possible nor prudent to state any universal form which would be applicable to all the cases of criminology where capital punishment has been prescribed. Thus, it is imperative for the court to examine each case on its own facts, in the light of enunciated principles and before opting for the death penalty, the circumstances of the offender are also required to be taken into consideration along with the circumstances of crime for the reason that life imprisonment is the rule and death sentence is an exception.
24. Before going into the legality and propriety of question of sentence imposed upon the appellant, it is profitable to have a look at the various decisions of the Apex Court in the matter. The decision in Bachan Singh v. State of Punjab reported in AIR 1980 SC 898 pronounced by the Constitutional Bench of the Hon'ble Apex Court stands first among the class making a detailed discussion after the amendment of Cr.P.C. in 1974. In this case, the Apex Court has held that provision of death penalty was an alternative punishment for murder and is not violative of Article 19 of the Constitution of India. Relevant paragraphs of the said judgment are relevant and the same are reproduced herein below:-
"132. To sum up, the question whether or not death penalty serves any penological purpose is a difficult, complex and intractable issue. It has evoked strong, divergent views. For the purpose of testing the constitutionality of the impugned provision as to death penalty in Section 302 of the Penal Code on the ground of reasonableness in the light of Articles 19 and 21 of the Constitution, it is not necessary for us to express any categorical opinion, one way or the other, as to which of these two antithetical views, held by the Abolitionists and Retentionists, is correct. It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this issue, is a ground among others, for rejecting the petitioners argument that retention of death penalty in the impugned provision, is totally devoid of reason and purpose. If, notwithstanding the view of the Abolitionists to the contrary, a very large segment of people, the world over, including sociologists, legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society, if in the perspective of prevailing crime conditions in India, contemporary public opinion channelized through the people's representatives in Parliament, has repeatedly in the last three decades, rejected all attempts, including the one made recently, to abolish or specifically restrict the area of death penalty, if death penalty is still a recognised legal sanction for murder or some types of murder in most of the civilised countries in the world, if the framers of the Indian Constitution were fully aware -- as we shall presently show they were -- of the existence of death penalty as punishment for murder, under the Indian Penal Code, if the 35th Report and subsequent reports of the Law Commission suggesting retention of death penalty, and recommending revision of the Criminal Procedure Code and the insertion of the new Sections 235 (2) and 354 (3) in that Code providing for presentence hearing and sentencing procedure on conviction for murder and other capital offences were before the Parliament and presumably considered by it when in 1972-1973 it took up revision of the Code of 1898 and replaced it by the Code of Criminal Procedure, 1973, it is not possible to hold that the provision of death penalty as an alternative punishment for murder, in Section 302 of the Penal Code is unreasonable and not in the public interest. We would, therefore, conclude that the impugned provision in Section 302, violates neither the letter nor the ethos of Article 19.
200. Drawing upon the penal statutes of the States in U.S.A. framed after Furman v, Georgia, in general, and Clauses 2(a), (b), (c), and (d) of the Indian Penal Code (Amendment) Bill passed in 1978 by the Rajya Sabha, in particular, Dr. Chitale has suggested these "aggravating circumstances":
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 of 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 suc 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; or
(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the CrPC, 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.
201. Stated broadly, there can be no objection to the acceptance of these indicators but as we have indicated already, we would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other.
204. Dr. Chitaley has suggested these mitigating factors:
"Mitigating circumstances":- In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances:
(1) That the offence was committed under the influence of extreme mental or emotional disturbance.
(2) The age of the accused. It the accused is young or old, he shall not be sentenced to death.
(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.
(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.
(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person.
(7) That the condition of the accused showed that he was mentally defective and that the said defect unpaired his capacity to appreciate the criminality of his conduct.
207. We will do no more than to say that these are undoubtedly relevant circumstances and must be given great weight in the determination of sentence.
209. There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. "We cannot obviously feed into a 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 liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354 (3). Judges should never be bloodthirsty. 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 evermore scrupulous care and humane concern, directed along the high-road 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."
25. In Machhi Singh v. State of Punjab reported in (1983) 3 SCC 470, a three- Judges Bench of the Supreme Court has made an attempt to cull out certain aggravating and mitigating circumstances and it has been held that it was only in rarest of rare cases, when the collective conscience of the community 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. In this judgment the Supreme Court has summarized the instances on which death sentence may be imposed, which reads thus:-
"38. xxxxxxxxxxx
(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 along with 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 the aggravating and the mitigating circumstances before the option is exercised."
39. 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?
40. 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 herein above, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so."
(Emphasis supplied)
26. The issue again came up before Hon'ble Apex Court in Ramnaresh & others v. State of Chhattisgarh reported in (2012) 4 SCC 257, wherein the Supreme Court reiterated 13 aggravating and 7 mitigating circumstances as laid down in the case of Bachan Singh (supra) required to be taken into consideration while applying the doctrine of "rarest of rare" case. Relevant Para of the same reads thus:-
"76. The law enunciated by this Court in its recent judgements, as already noticed, adds and elaborates the principles that were stated in the case of Bachan Singh (supra) and thereafter, in the case of Machhi Singh (supra). The aforesaid judgments, primarily dissect these principles into two different compartments - one being the "aggravating circumstances" while the other being the "mitigating circumstances". The Court would consider the cumulative effect of both these aspects and normally, it may not be very appropriate for the Court to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while completely ignoring other classes under other heads. To balance the two is the primary duty of the Court. It will be appropriate for the Court to come to a final conclusion upon balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the Court as contemplated under Section 354 (3) of Cr.P.C.
Aggravating Circumstances:
(1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions.
(2) The offence was committed while the offender was engaged in the commission of another serious offence.
(3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person.
(4) The offence of murder was committed fr ransom or like offences to receive money or monetary benefits.
(5) Hired killings.
(6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful custody.
(8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 Cr.P.C.
(9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community.
(10) When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person.
(11) When murder is committed for a motive which evidences total depravity and meanness.
(12) When there is a cold blooded murder without provocation.
(13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.
Mitigating Circumstances:
(1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course.
(2) The age of the accused is a relevant consideration but not a determinative factor by itself.
(3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated.
(4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct.
(5) The circumstances which, in normal course of life, would render such a behavior possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behavior that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
(6) Where the Court upon proper appreciation of evidence is of the view that the crime was not committed in a pre-ordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.
(7) Where it is absolutely unsafe to rely upon the testimony of a sole eye-witness though prosecution has brought home the guilt of the accused."
27. In Sk Abdul Hamid vs. State of MP reported in (1998) 3 SCC 188, while dealing with the question of sentence for the offence of murder, has observed thus;-
9. Now, coming to the death sentence awarded to the appellants which was confirmed by the High Court, it may be noted that under sub-section (3) of Section 354 CrPC when the conviction is for an offence punishable with death or in the alternative, with an imprisonment for life, the Court is required to state reasons for sentence awarded, and in case of sentence of death, the special reasons for such sentence are to be given. Thus, under the provisions of the Code of Criminal Procedure, life imprisonment for the offence of murder is the rule and death sentence is an exception to be resorted to for special reasons to be recorded by the Court. This Court in a number of decisions has laid down guidelines when the extreme penalty of death sentence is to be awarded. (See: Bachan Singh v. State of Punjab and Machhi Singh v. State of Punjab.) In these cases, it was pointed out that death penalty could be awarded in the rarest of rare cases and the circumstance, 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 would fall within the category of the rarest of rare cases.
10. Special reasons given by the trial court in awarding death sentence to the appellants and confirmed by the High Court, were that it was such a cruel act where the appellants have not even spared the innocent child and the motive being to grab the property. We have given our earnest consideration to the question of sentence and the reasons given by the High Court for awarding death sentence to the appellants. Having regard to the guidelines stated above, it may be noticed that in the present case it was not pointed out by the prosecution that it was a cold-blooded murder. There is nothing on record to show how the murder has taken place. In the absence of such evidence, we do not find that the case before us falls within the category of the rarest of rare cases, deserving extreme penalty of death. Keeping in view the afore-stated facts, we are of the view that the ends of justice would be met if we substitute the death sentence with that of life imprisonment under Sections 302/34 IPC, while upholding the appellants' conviction, as recorded by the High Court."
28. In the matter of Dharam Deo Yadav vs. State of UP reported in (2014) 5 SCC 509, the Supreme Court has held thus:-
"36. We may now consider whether the case falls under the category of rarest of the rare case so as to award death sentence for which, as already held, in Shankar Kisanrao Khade v. State of Maharashtra (2013) 5 SCC 546 this Court laid down three tests, namely, Crime Test, Criminal Test and RR Test. So far as the present case is concerned, both the Crime Test and Criminal Test have been satisfied as against the accused. Learned counsel appearing for the accused, however, submitted that he had no previous criminal records and that apart from the circumstantial evidence, there is no eye-witness in the above case, and hence, the manner in which the crime was committed is not in evidence. Consequently, it was pointed out that it would not be possible for this Court to come to the conclusion that the crime was committed in a barbaric manner and, hence the instant case would not fall under the category of rarest of rare. We find some force in that contention. Taking in consideration all aspects of the matter, we are of the view that, due to lack of any evidence with regard to the manner in which the crime was committed, the case will not fall under the category of rarest of rare case. Consequently, we are inclined to commute the death sentence to life and award 20 years of rigorous imprisonment, over and above the period already undergone by the accused, without any remission, which, in our view, would meet the ends of justice."
29. In Kalu Khan v. State of Rajasthan reported in (2015) 16 SCC 492, the Hon'ble Supreme Court has held that:-
"30. In Mahesh Dhanaji Shinde v. State of Maharashtra, the conviction of the appellant-accused was upheld keeping in view that the circumstantial evidence pointed only in the direction of their guilt given that the modus operandi of the crime, homicidal death, identity of 9 of 10 victims, last seen theory and other incriminating circumstances were proved. However, the Court has thought it fit to commute the sentence of death to imprisonment for life considering the age, socio-economic conditions, custodial behaviour of the appellant-accused persons and that the case was entirely based on circumstantial evidence. This Court has placed reliance on the observations in Sunil Dutt Sharma v. State (Govt. of NCT of Delhi) as follows: (Mahesh Dhanaji case, SCC p. 314, para 35) "35. In a recent pronouncement in Sunil Dutt Sharma v. State (Govt. of NCT of Delhi), it has been observed by this Court that the principles of sentencing in our country are fairly well settled -- the difficulty is not in identifying such principles but lies in the application thereof. Such application, we may respectfully add, is a matter of judicial expertise and experience where judicial wisdom must search for an answer to the vexed question -- Whether the option of life sentence is unquestionably foreclosed? The unbiased and trained judicial mind free from all prejudices and notions is the only asset which would guide the Judge to reach the ''truth'."
31. In the instant case, admittedly the entire web of evidence is circumstantial. The appellant-accused's culpability rests on various independent evidence, such as, him being "last seen" with the deceased before she went missing; the extra-judicial confession of his co-accused before PW 1 and the village members; corroborative testimonies of the said village members to the extra-judicial confession and recovery of the deceased's body; coupled with the medical evidence which when joined together paint him in the blood of the deceased. While the said evidence proves the guilt of the appellant-accused and makes this a fit case for conviction, it does not sufficiently convince the judicial mind to entirely foreclose the option of a sentence lesser than the death penalty. Even though there are no missing links in the chain, the evidence also does not sufficiently provide any direct indicia whereby irrefutable conclusions can be drawn with regard to the nexus between "the crime" and "the criminal". Undoubtedly, the aggravating circumstances reflected through the nature of the crime and young age of the victim make the crime socially abhorrent and demand harsh punishment. However, there exist the circumstances such as there being no criminal antecedents of the appellant-accused and the entire case having been rested on circumstantial evidence including the extra-judicial confession of a co-accused. These factors impregnate the balance of circumstances and introduce uncertainty in the "culpability calculus" and thus, persuade us that death penalty is not an inescapable conclusion in the instant case. We are inclined to conclude that in the present scenario an alternate to the death penalty, that is, imprisonment for life would be appropriate punishment in the present circumstances."
30. In Allauddin Mian v. State of Bihar reported in (1989) 3 SCC 5, it was laid down that unless the nature of crime and the circumstances of the offender reveal that the criminal was a menace to the society and the sentence of life imprisonment would be altogether inadequate, the court should ordinarily impose a lesser punishment and not the extreme punishment of death which should be reserved for exceptional cases only.
31. In A. Devendran v. State of Tamil Nadu reported in (1997) 11 SCC 720, which is a case of triple murder, the Hon'ble Supreme Court held that the trial court was not justified in awarding death sentence as the accused had no pre-meditated plan to kill any person and as the main object was to commit robbery.
32. In Om Prakash v. State of Haryana reported in (1999) 3 SCC 19, a dispute over a small house between two neighbours resulted in the murder of seven persons. Death sentence was imposed on the accused by the trial court which was confirmed by the appellate court. The Hon'ble Supreme Court observed that the bitterness increased to a boiling point and the agony suffered by the appellant and his family members at the hands of the other party, and for not getting protection from the police officers concerned or total inaction despite repeated written prayers, goaded or compelled the accused to take law in his own hands which culminated in the gruesome murders. The accused was a BSF Jawan aged 23 at the time of incident. The Hon'ble Supreme Court commuted the death penalty to imprisonment for life.
33. In the case of Accused 'X' v. State of Maharashtra, reported in (2019) 7 SCC 1, the Supreme Court, while considering the post-conviction mental illness of accused/death row convict as mitigating factor, has observed as under:
55. Having observed some of the general aspects of sentencing, it is necessary to consider the aspect of post-conviction mental illness as mitigating factor in the analysis of ''rarest of the rare' doctrine which has come into force post Bachan Singh case (supra).
56. As a starting point, we need to refer to Piare Dusadh v. King Emperor, AIR 1944 FC 1, that has already recognized pos-conviction mental illness as a mitigating factor in the following manner: (SCC OnLine FC) "Case No. 47-The applicant in this case was convicted by a Special Judge of the offence of murder and was sentenced to death on 30.9.1942. His appeal to the Allahabad High Court was dismissed and the sentence of death was confirmed.
The appellant is a young man of 25 who has been twice widowed. His victim was his aunt, 30 years of age, whose husband (Kanchan) had about six years previously murdered his own brother, appellant's father. Kanchan was sentenced to death for the murder, but lost his reason while awaiting the execution of the death sentence, and is now detained as a lunatic.
The evidence in this case leaves no room for doubt that the appellant was rightly convicted of murder. There is some confusion as to the exact motive for the undoubtedly brutal assault of which the appellant made his aunt the victim. The prosecution alleged that the appellant being a widower was chagrined by the refusal of his aunt to become his mistress. In his statement before, the Special Judge he said that another uncle (P.W. 7) who according to the appellant was behind the prosecution was on terms of improper intimacy with the deceased and resented even small acts of kindness on the part of the deceased towards the appellant. In the appeal preferred by him through the jail authorities to the High Court, the appellant stated that his aunt was a woman of loose character and was pursuing him with unwelcome attentions. The previous history of this family indicates that the appellant probably suffers from an unbalanced mind. The nature and ferocity of the assault upon his aunt appear to confirm this. In committing the offence the appellant must have been actuated by jealousy or by indignation either of which would tend further to disturb the balance of his mind. He has besides been awaiting the execution of his death sentence for over a year. We think that in this case a sentence of transportation for life would be more appropriate than the sentence of death. We accordingly reduce the sentence of death to one of transportation for life and subject to this modification dismiss the appeal."
(emphasis supplied) However, this case does not provide any guidelines or the threshold for evaluating what kind of mental illness needs to be taken into consideration by the Courts.
57. We note that, usually, mitigating factors are associated with the criminal and aggravating factors are relatable to commission of the crime. These mitigating factors include considerations such as the accused's age, socio-economic condition etc. We note that the ground claimed by ''accused x' is arising after a long time-gap after crime and conviction. Therefore, the justification to include the same as a mitigating factor does not tie in with the equities of the case, rather the normative justification is founded in the Constitution as well as the jurisprudence of the ''rarest of the rare' doctrine. It is now settled that the death penalty can only be imposed in the rarest of the rare case which requires a consideration of the totality of circumstances. In this light, we have to assess the inclusion of post-conviction mental illness as a determining factor to disqualify as a ''rarest of the rare' case.
59. All human beings possess the capacities inherent in their nature even though, because of infancy, disability, or senility, they may not yet, not now, or no longer have the ability to exercise them. When such disability occurs, a person may not be in a position to understand the implications of his actions and the consequence it entails. In this situation, the execution of such a person would lower the majesty of law.
71.1 That the post-conviction severe mental illness will be a mitigating factor that the appellate court, in appropriate cases, needs to consider while sentencing an accused to death penalty."
34. In the light of above proposition of law, we are required to scrutinize the case in hand minutely to find out whether the case falls under the category of "rarest of the rare case", whether imposition of death penalty, which is an exception, would be the only appropriate & meaningful sentence and whether imprisonment for life which is the rule would not be adequate and would not meet the ends of justice.
35. While awarding the death sentence to the appellant, the Court below has drawn a conclusion that the act of the appellant was brutal and the same comes in the category of 'rarest of rare case'. The Court below has observed as follows:
"izLrqr izdj.k esa Hkh ftl rjhds ls vekuoh; d`R; }kjk vijk/k dkfjr fd;k x;k gS ,oa ihfM+r ds NksVs&NksVs VqdM+s djds mldh gR;k dh x;h gS rFkk mldh [kky CysM ls Nhydj fudkyh x;h gS rFkk mlds vkarfjd vaxksa dks Hkh dkVdj ckgj fd;k x;k gS rFkk mldk lj /kM+ ls vyx fd;k x;k gSA mDr leLr rF; vfHk;qDr }kjk dkfjr vijk/k dh vrqyuh; Hk;kudrk o ccZjrk dks nf'kZr djrk gS rFkk ;g rF; Hkh mYys[kuh; gS fd e`rd@ihfM+r dh vk;q ek= 6 o"kZ Fkh ,oa vfHk;qDr mls cgqr vkjke ls vf/k'kkflr fd;s tkus dh fLFkfr esa Fkk ,oa ihfM+r }kjk vfHk;qDr dks fdlh izdkj ls dksbZ izdksiu ugha fn;k x;k FkkA mYys[kuh; gS fd ekuuh; mPpre U;k;ky; }kjk mijksDr fu.kZ; ds var esa mijksDrkuqlkj nks iz'u fojfpr fd;s x;s gSa] ftlds laca/k esa ;g dguk leqfpr gksxk fd nks"k fl} }kjk dkfjr vijk/k vlkekU; Fkk ,oa mijksDr vijk/k ds ifjizs{; esa vfHk;qDr dks vkthou dkjkokl ds n.M ls nf.Mr fd;k tkuk vi;kZIr gksxk ,oa leqfpr ugha gksxkA mYys[kuh; gS fd vfHk;qDr }kjk 6 o"khZ; vcks/k ckyd ds lkFk dzwjre rjhdk viukrs gq;s mldh gR;k bl izdkj dkfjr dh x;h gS fd ,slh gR;k ,oa ,slk rjhdk ekuoh; bfrgkl esa dnkfpr gh ns[kus dks feyrk gSA ekuuh; mPpre U;k;ky; }kjk mijksDr fu.kZ; esa fojfpr f}rh; iz'u ds vkyksd esa ;g Li"V gS fd nks"k fl} }kjk dkfjr vijk/k vR;Ur u`'kalrkiwoZd dkfjr fd;k x;k gS] lkekU; tuekul dh vUrjkRek fopfyr gks x;h gS ,oa U;k;ky; }kjk mls e`R;` n.M gh fn;k tkuk pkfg, vkSj ;fn mls e`R;q n.M ugha fn;k x;k rks ;g leqfpr ,oa U;k;iw.kZ ugha gksxk rFkk ;g ihfM+r ds ifjokj ,oa lkekU; tuekul ds lkFk U;k; djuk ugha gksxkA blds vfrfjDr vfHk;qDr }kjk ftl izdkj dk vijk/k dkfjr fd;k x;k gS mlls fuf'pr gh rarest of rare Js.kh esa vkrk gSA mYys[kuh; gS fd izLrqr izdj.k ekuuh; mPpre U;k;ky; }kjk ikfjr mijksDr fu.kZ; esa ekxZnf'kZr fl}karksa ,oa vfHkfuf'pr fl}karksa dh Js.kh esa vkrk gS ,oa mDr fu.kZ; esa of.kZr lHkh ekudksa dks iw.kZ djrk gSA ;gka ;g rF; Hkh mYys[kuh; gS fd ekuuh; mPpre U;k;ky; }kjk mijksDr fu.kZ; esa lanfHkZr vU; fu.kZ;ksa esa fofgr vfHkfu'pr ekxZnf'kZr fl}karksa dks iw.kZ djrk gSA AIR 2017 SUPREME COURT 2530 SAMPAT DOPADE VS STATE OF MAHARASHTRA.
Ekkuuh; mPpre U;k;ky; }kjk mijksDr fu.kZ; esa Hkh e`R;q n.M ds laca/k esa iwoZ ikfjr fu.kZ; cPpu flag cuke iatkc jkT; ,-vkbZ-vkj- 1982 ¼lq0dks0½ esa e`R;q n.M ls lacaf/kr izfrikfnr fl}karksa dks lanfHkZr fd;k gS ,oa lEizsf{kr fd;k gS fd (a) if the murder has been committed after previous planning and involves extreme brutality; or (b) if the murder involves exceptional depravity.
ekuuh; mPpre U;k;ky; }kjk ekNh flag cuke iatkc jkT;] ,-vkbZ-vkj- 1983 ¼lq0dks0½ dks lanfHkZr fd;k gSA ekuuh; mPpre U;k;ky; }kjk mDr fu.kZ; esa bl vk'k; dk lEizs{k.k fd;k x;k gS fd But the community will not do so in every case. It may do so 'in the 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.
mYys[kuh; gS fd Jhen~ Hkxor xhrk ds v/;k; 4 'yksd 8 fuEu izdkj gS & ifj=k.kk; lk/kwuka fouk'k; p nq"d`rke~ A /keZlaLFkkiukFkkZ; lEHkokfe ;qxs ;qxsAA Jhen~ Hkxor xhrk ds mDr 'yksd dks n`f"Vxr j[krs gq, vkt ds ifjizs{; esa ;g dguk leqfpr gksxk fd /keZ dh LFkkiuk dk vFkZ fof/k ds 'kklu dh LFkkiuk gSA vr% izdj.k ds mijksDr leLr rF;ksa dks n`f"Vxr j[krs gq;s ;g U;k;ky; bl fu"d"kZ ij igqaprh gSa fd nks"k fl} uthe fe;ka dks mlds }kjk dkfjr vijk/k rarest of rare case dh Js.kh esa vkrk gS ,oa mlds fy, nks"k fl} dks e`R;q n.M ls gh nf.Mr fd;k tkuk loZFkk mfpr gksxkA izLrqr izdj.k ds mijksDr leLr rF;ksa ,oa ifjfLFkfr;ksa ,oa dkfjr vijk/k dh Hk;kudrk] u`'kalrk dks n`f"Vxr j[krs gq;s nks"k fl} uthe fe;ka dks mlds fo:} vkjksfir vijk/kksa ds fy, fuEu izdkj ls nf.Mr fd;k tkuk leqfpr gksxk & 1& nks"k fl} uthe fe;ka dks /kkjk 302 Hkkjrh; n.m lafgrk ds varxZr n.Muh; vijk/k ds fy, e`R;q n.M ,oa 25]000@&:0 ¼iPphl gtkj :i;s½ ds vFkZn.MA"
36. From a perusal of the above, it is clear that the special reasons assigned by the trial Court for awarding extreme penalty of death are that the murder was horrifying as the accused-appellant was in a dominant position; victim was helpless being a child aged about 6 years and the murder was pre-meditated and pre-planned one and committed in a cruel, grotesque and diabolical manner. The accused is a menace to the Society and, therefore, imposition of lesser sentence than that of death sentence, would not be adequate and appropriate. In these circumstances, the Court below has held that the balance-sheet of the aggravating and mitigating circumstances was heavily weighed against the appellant making it the rarest of rare cases and consequently awarded the death sentence.
37. But, having gone through the facts and circumstances of this case, we find that there was no evidence on record to establish that the accused appellant committed pre-planned and pre-meditated murder of a minor child. At least, no such evidence has been led by the prosecution to establish this fact. True it is that the appellant cut the body of the deceased in pieces and when he was doing so, even the witnesses also reached there, but that itself is not sufficient to hold that it is a pre-meditated or pre-planned murder.
38. True that the manner in which crime is committed by knife blows is brutal, cruel and gruesome, but there is absolutely no evidence to suggest as to what could be the reason for the appellant to commit the said offence. This could be on account of frustration, mental stress or because of emotional disorder which would be the mitigating circumstances to be taken note of.
39. It is relevant to mention here that in compliance of the orders of this Court dated 6.2.2019 and 27.3.2019, the Director General (Medical & Health) Uttar Pradesh, Lucknow, filed an affidavit of compliance on 4.4.2019 along with a report of Medical Board, comprising five members, dated 5.3.2019, which indicates the mental health of the appellant. Relevant part of said report is as under:
"-------fl}nks"k cUnh uthe fe;kW dk xfBr cksMZ ds v/;{k@lnL;ksa ds }kjk cUnh uthe fe;kW dk ekufld ijh{k.k fd;k x;kA ijh{k.kksijkUr cUnh uthe fe;kWa dks Unspecified Non-Organic Psychosis (F 29.0) jksx ls xzflr ik;k x;k gSA"
On 5.1.2020, learned State Counsel has submitted another medical report of the appellant, enclosing several letters which also indicate the mental condition of the appellant. Relevant parts of some letters read as under:
(i) Letter dated 5.12.2018:
"......bl fpfdRlky; ds foftVlZ cksMZ dh cSBd tks ekuuh; tuin U;k;k/kh'k] okjk.klh dh v/;{krk esa fnukad 24-11-2018 dks lEiUu gqbZ] cUnh uthe fe;kW dks ekufld :i ls vLoLF; ?kksf"kr dj fn;k x;k gS vkSj euksjksx fo'ks"kK dh lykg ds vuqlkj mipkj pykrs jgus dh lykg nh x;h gSA ftldk mipkj euksjksx fo'ks"kK dh lykg ds vuqlkj py jgk gSA "
(ii) Letter dated 9.4.2019:
"......bl fpfdRlky; ds foftVlZ cksMZ dh cSBd tks ekuuh; tuin U;k;k/kh'k] okjk.klh dh v/;{krk esa fnukad 06-04-2019 dks lEiUu gqbZ] cUnh uthe fe;kW dks ekufld :i ls vLoLF; ?kksf"kr dj fn;k x;k gS vkSj euksjksx fo'ks"kK dh lykg ds vuqlkj mipkj pykrs jgus dh lykg nh x;h gSA ftldk mipkj euksjksx fo'ks"kK dh lykg ds vuqlkj py jgk gSA "
(iii) Letter dated 23.4.2019:
"......With Due regards the patient Mr Najeem Miyan S/o Tasabbar Ali was admitted in Mental Hospital, Varanasi Dated-22-10-2018 was diagnosed as a case of "Unspecified Non-Organic Psychosis" (F-29.0) by medical board conclusion dated 05.03.2019 and who was declared unfit by Visitor's Board meeting on dated 06-04-2019, after since the patient was on continuous medication and has shown significant improvement on his mental status examination.
In Context of Point No.3 it could not be commented regarding the aforesaid illness since Adequate history/prescriptions were not available.
On current examination patient is conscious, oriented, responding to external stimulus promptly, mood-euthymic, maintaining personal hygiene and obeying commands.
Judgment intact.
Patient is advised for medication and to be retained in Mental Hospital Varanasi till next Visitor's Board meeting, or till any order from next higher authority."
(iv) Conduct report and behavioral report dated 28.4.2019:
"fl}nks"k canh uthe fe;kW fnukad 21-02-2017 dks ftyk dkjkxkj ihyhHkhr nkf[ky gqvkA tsy izos'k ds le; canh dh ekufld voLFkk xqelqe lh izrhr gks jgh FkhA og fdlh Hkh izdkj dh mRrstuk ls izHkkfor ugh FkkA fl}nks"k canh lkekU; cafn;ksa dh rjg gh cSjd es jg jgk Fkk o vU; cafn;ks ds lkFk lkekU; O;ogkj FkkA fnukad 04-09-17 dks canh ds vlkekU; O;ogkj izrhr gksus dh otg ls ftyk vLirky ihyhHkhr Hkstk x;k] tgkW ls canh dks fQthf'k;u }kjk ekufld :i ls ihfM+r crk;k x;k o nok iznku dh x;h blds ckn canh dks fnukad&19-09-2017 dks ekufld fpfdRlky; cjsyh jsQj fd;k x;k] tgkW ij ekufld jksx fo'ks"kK }kjk canh dk mipkj py jgk FkkA canh dks iw.kZ :i ls LokLF; es lq/kkj u gksus ds dkj.k ekufld jksx fo'ks"kK cjsyh }kjk fnuakd&29-08-2018 dks ekufld fpfdRlky; okjk.klh jsQj fd;k x;k] ftl dkj.k canh dks fnukad&22-10-2018 ls ekufld fpfdRlky; okjk.klh es Hkstk x;k] rn~fnukad ls vc rd mldk bZykt py jgk gSA"
(v) Letter dated 17.9.2019:
"--------bl fpfdRlky; ds foftVlZ cksMZ dh cSBd tks ekuuh; tuin U;k;k/kh'k] okjk.klh dh v/;{krk esa fnukad 13-09-2019 dks lEiUu gqbZ] cUnh uthe fe;kW dks ekufld :i ls LoLF; ?kksf"kr dj fn;k x;k gS vkSj dkjkxkj okil LFkkukUrfjr djus dh laLrqfr dh xbZ gSA"
(vi) Letter dated 12.12.2019:
"-------mipkj ds mijkUr mDr fo'ks"kK }kjk fnukad 26-10-19 canh dks ekufld :i ls LoLFk ?kksf"kr o vko';d nokbZ;kW iznRr djrs gq, ftyk dkjkxkj ihyhHkhr gsrq okil fd;k x;kA --- --- ---
orZeku es canh uthe fe;kW iq= rlCcj vyh lkekU; cafn;ks ds lkFk cSjd es jg jgk gS rFkk canh dk LokLF; lkekU; gSA"
40. After considering the above facts and circumstances of the case and the fact that the appellant is suffering from 'Unspecified Non-Organic Psychosis' (F 29.0) [a mental ailment] and further relying upon the case of 'Accused 'X' (supra), we are of the view that the instant case does not fall in the category of 'rarest of rare case', warranting capital punishment, particularly looking to the fact that the appellant is suffering from a mental illness. Hence, the death sentence awarded to the appellant under Section 302 of IPC is liable to be converted into life imprisonment till the end of his life without remission.
41. Resultantly, while affirming the conviction of the appellant under Section 302 of IPC, we set aside the 'sentence of death' awarded to the appellant by the Court below and direct that, for the murder committed by the appellant, he shall serve imprisonment till the end of his life without remission. Subject to this alteration in the sentence, capital case is dismissed.
Order Date :-6.3.2020 RKK/-
(Raj Beer Singh, J) (Pritinker Diwaker, J)