Mohammad Sadiq Mir (Alias) Sada Age 38 ... vs State Of Jammu And Kashmir on 15 October, 2024

[Cites 50, Cited by 0]

Jammu & Kashmir High Court - Srinagar Bench

Mohammad Sadiq Mir (Alias) Sada Age 38 ... vs State Of Jammu And Kashmir on 15 October, 2024

1. This appeal by four persons ["appellants"] is directed against judgment dated 18th April, 2015 passed by the learned Sessions Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 2 CRA No.4/2015 Judge (PDJ), Kupwara ["trial Court"] in file No.60/Session titled State v. Mohamad Sadiq Mir alias Sada Choor and others["impugned judgment"], whereby the trial Court has convicted all the appellants for offences punishable under Sections 341, 363, 376(2)(g), 302 and 34 RPC and order dated 24th April, 2015 passed by the trial Court, whereby they were sentenced to death for commission of offence punishable under Sections 302/34 RPC as also to simple imprisonment of one month for offence under Section 341/34 RPC and rigorous imprisonment of seven years and ten years for offences punishable under Section 363/34 RPC and 376(G)/34 RPC respectively.

2. The trial Court after recording conviction and sentencing the appellants as accused, in view of the quantum of sentence also made a Criminal Reference, seeking confirmation of the same by this Court.

3. Before we advert to the grounds of challenge urged by the learned counsel for the appellants, we deem it necessary to set out material facts culled out from the prosecution case, as was laid before the trial Court.

3.1 As per the prosecution case, the occurrence in which a hapless minor girl was gang raped and killed took place on 20th July, 2007. It is on the same day, the Police Station, Handwara, received an information from reliable source that some unknown Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 3 CRA No.4/2015 persons have raped a minor girl 'X' in orchards near Batapora Wuder. The rape was committed upon her when she was on her way from school to her home. The police was informed that the person/persons involved in raping the girl had also killed her by slitting her throat and that the dead body of the girl had been kept in the bushes under the heaps of earth. On receipt of this information, the police immediately swung into action and registered FIR No.152/2007 in the Police Station and set the investigation process in motion.

3.2 During investigation, the dead body of the girl 'X' was recovered in presence of her heirs near water stream (Wyeth) at Batapora Wuder. The police found that the dead body of 'X' had been thrown in a small stream and kept hidden under gross and heaps of earth. The dead body was recognized by PW-1, the brother of 'X' and PW-3 Latief Ahmad Shah. The site of occurrence was sealed and the circumstantial evidence existing on spot was collected. On examining the dead body of 'X', it was found that the left side of her throat was slit and the blood had oozed out from the wounds and coagulated. The blood had come down from the left breast which, too, had coagulated. From the site of occurrence, green gross and one Coca Cola bottle of 500 ml was also seized. The police called the medical team, Magistrate and FSL unit Kupwara on spot. The dead body of 'X' was taken for postmortem and medical examination. Specimen of blood and Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 4 CRA No.4/2015 blood soaked clay were obtained from the site of occurrence and seized on spot. The undershirt of 'X', which was lying near the slit wound and had absorbed a lot of blood and scarf (dupatta), which was also having clots of blood as also a white trouser which was torn and was having semen stains on it were also seized from the spot and preserved. The requisite seizure memos were prepared by the police on spot. With the help of photographer the site of occurrence was photographed from different angles. The medical team conducting postmortem found some sawdust on nostrils, mouth and face of the deceased-'X', which was also sealed in small jars. The hair samples from the private parts were also obtained and sealed in small boxes. These samples were picked up by Lady Doctor Fareeda and handed over to the police for obtaining expert opinion. The dead body after postmortem was handed over to the next of kin of the deceased.

3.3 Apart from the aforesaid proceedings conducted by the police on spot, the police also found a bag, hair clip, a watch and school shoes of the deceased from the site of occurrence and its surroundings. Besides, a wine bottle and some glass tumblers were also recovered. These articles were found scattered near the site of occurrence. The police saw two foot prints on spot, which were photographed. With the assistance of FSL team, the specimen samples of finger prints were obtained from the wine bottle and the glass tumblers and sent to FSL for examination. The Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 5 CRA No.4/2015 foot prints were also preserved by obtaining a mould and seized by the police. The school bag which contained books of 8th class, note books and two brogues of Uqaab Public School, Langate was seized along with the articles contained therein. 3.4 During the postmortem, it was found by the medical team that there was evidence of 'X' having been subjected to rape by more than one person. The opinion prepared by the medical team was submitted to the Investigating Officer after postmortem. From the opinion of the medical team, it transpired that 'X', a school going girl, had been subjected to rape by more than one person and with a view to hiding their brutal act, the perpetrators of the crime had killed her and kept her dead body hidden.

4. Since there was no eye witness to the crime, as such, the investigation team rounded up some vagabonds of the area, with previous criminal background for questioning. The persons, who were rounded up by the police included some drug addicts and two non-State subjects. During sustained investigation and questioning, one of the appellants namely Sadiq Mir admitted his complicity in the crime and disclosed to the police that he along with appellants Azher Mir @ Billa, a carpenter namely, Jehangir Bihari and a cobbler/(Mochi) Suresh had waylaid 'X' and dragged her from the road towards the lower side towards Wuder. He confessed that they dragged her through the maize fields and in order to prevent her from raising hue and cry, appellant Jehangir Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 6 CRA No.4/2015 gagged her mouth with his shirt. He also confessed before the police that it was appellant-Jehangir, who committed rape upon 'X' followed by appellant- Azher, thereafter Suresh and he was the last one. He further disclosed that they all were of the view that in case their act of raping the minor girl would come to light, it would be difficult for them to live in the society, they therefore, in consultation with each other and in pursuance of the unanimous decision taken by them took 'X' to nearby small stream where the appellant-Jehangir slit her throat with his knife. Thereafter, they covered the dead body with earth and put some grass so that the dead body was not visible. They, after having finished their act, returned through other route. He also made a disclosure statement that the weapon of offence had been concealed by him in his Raida type shop. On the disclosure of appellant-Sadiq Mir, discovery memo was prepared and at his instance one knife having blood stains on it was recovered. The image of the weapon of offence was obtained on the recovery memo and the weapon of offence after conducting photography and videography was sealed. In view of the disclosure made by the appellant-Sadiq Mir, Sections 341, 376(2)(g), 363 and 34 RPC were added on, against the appellants. They were, accordingly, arrested and their relatives informed accordingly.

4.1 As the prosecution case goes, wearing apparels, which the accused were wearing on the date of occurrence were also seized and Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 7 CRA No.4/2015 sealed. Except Appellant Sadiq Mir, other appellants had hidden those clothes, which, on their disclosures, were recovered by the police from their staying places/houses. Appellant-Suresh had kept his clothes concealed under the stones lying in the courtyard of his rented accommodation. The clothes, which the appellant-Sadiq Mir was wearing, were also seized and planda prepared. The chappal of all the fours appellants which included plastic chappal of Sadiq Mir and Suresh were also seized and sealed. The leather chappal of Jehangir and hawaie chappel of Azher Mir were also seized and sent to FSL.

4.2 During the course of investigation, the appellants were also subjected to medical examination. The doctors, who examined the appellants, opined that there were scratches found on the bodies of the appellants and these scratches had been suffered by the appellant on the date of occurrence. Being sure about the involvement of the appellants in the commission of offence, the police separately interrogated all the appellants. During their investigation, it came to be divulged that on 19 th July, 2007, the appellants having hatched a conspiracy and with common intention of committing the crime had decided to come to Batapora Wuder on Friday when the movement of the people is very less due to Friday prayer. They decided to have a party in the Wuder and procure some girl for satisfying their sexual desire. It was also decided by them beforehand that in case they found some Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 8 CRA No.4/2015 resistance they would remove the same. The appellant Sadiq Mir took his horse along with him towards the Wuder area and in that garb examined the spot on that day. Thereafter the other three appellants dragged 'X' from the road, gagged her mouth and took her to the Wuder where they committed gruesome crime. 4.3 During investigation, one horse multi coloured belonging to the appellant-Sadiq Mir was also seized and given on supardnama. An Aaqnama (deed of disinheritance) in respect of appellant-Sadiq Mir was produced before the police by his brother, in terms whereof, the father of the appellant-Sadiq Mir had disinherited him from his property because of his bad character and mis-deeds. It also came to light that appellant-Sadiq Mir had earlier also attempted to commit rape some years back. There were three FIRs already registered against him for different crimes. Similarly, Ghulam Mohamad Mir, the father, was also fed up with the activities of his son, appellant-Azher Mir. The appellant-Azher Mir had also tried to molest PW-36 a few days before the occurrence and the matter was under consideration of the locals (Ahli Baradari). The appellant-Azher Mir was also facing charges in FIR Nos.107 and 115 of 2005, pending trial before the competent Court of law. In short, the police found that the appellants-Mohd. Sadiq Mir and Azher Ahmad Mir were history- sheeters and bad charactered persons. When the instant crime came to light and the appellant-Azher Mir was found involved, his Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 9 CRA No.4/2015 farther published in the daily newspaper "Mashrik" a news item, under the title "Mairay Betay ko Phancy do"(hang my son). The police conducted other part of the investigation and recorded the statements of each witness to the circumstances and relevant facts leading to the conclusion that the gruesome crime, which took away the life of a minor girl 'X', was committed by the appellants and none other.

4.4. The sawdust and some pieces of kailwood were seized from the house of Abdul Gani Mir, where the appellant- Jahangir was doing carpentry work, for expert opinion. The blood groups of all the appellants were also taken. The pubic hairs of the appellants were obtained by the doctors and the same were sealed by affixing a ring on them. After preparing the planda these were sent to FSL, Srinagar for opinion. The appellants also took blood samples from the appellants in presence of the Magistrate for conducting DNA profiling. This was one with the help of medical team. These blood samples obtained from the appellants along with the seized blood soaked under-shirt and the torn trouser of 'X' were sent to FSL Chandigarh for DNA profiling and expert opinion. 4.5 From the opinion of the FSL, Srinagar, it was proved that the sawdust which had been collected from the eyes, nostrils and mouth of 'X' by the medical team and the sawdust which was picked up from the shirt of appellant-Jehangir Mir as also obtained from the house of Gani Mir were similar in characteristics and was Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 10 CRA No.4/2015 of the same type. The blood found on the weapon of offence and the blood found on the scarf and the clay picked up from the spot of occurrence was found human blood having "B" Group. The pubic hair, which were obtained during postmortem by the medical team from the private parts of the deceased, were found matching with the pubic hairs of appellant No.1 Mohd. Sadiq Mir. The chappals and moulds were also found similar and matching with the left chappal of appellant-Suresh Kumar and right foot chappal of appellant-Mohd. Sadiq Mir. After obtaining the expert opinion, the Investigating Team found the offence against the appellants proved. Accordingly, Final Report enlisting 87 witnesses was laid before the trial Court. Since opinion to be obtained from FSL, Srinagar and FSL Chandigarh took some time, as such, on obtaining such opinion, supplementary challan was also produced.

5. The trial Court took cognizance of the challan and on 26 th December, 2007 framed charges against the appellants for commission of offences punishable under Sections 302, 376(2)(g), 363, 341 and 34 RPC. The charges were read over and explained to the appellants in the Court. The appellants pleaded not guilty to the charges and claimed to be tried.

6. With a view to proving the charges against the appellants, the prosecution examined several witnesses to different circumstances including the medical and FSL experts, who had rendered their Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 11 CRA No.4/2015 opinion on different aspects during the course of investigation. On the basis of oral as well as scientific evidence brought on record by the prosecution and having regard to the defense set up by the appellants spelt out through DW-Showkat Ahmad and DW-Mohd. Sultan Mir, the trial Court was of the opinion that the prosecution had succeeded in proving following circumstances:-

1. Age of the victim It was concluded by the trial Court that on the date of occurrence, the 'X' was a minor below the age of 15 years. The conclusion was arrived at by the trial Court on the basis of testimonies of PW-55 and PW-64, as also the documentary evidence on record in the shape of school record of the deceased wherein the date of birth of the victim was recorded as 15.03.1994.

2. Date, Place and time of occurrence The trial court found that there was sufficient evidence to hold that the site of occurrence was near Wuder Batapora link road and the crime was seemingly committed between 1 pm to 4 pm on 20.07.2007. The trial Court has relied upon the evidence of PWs-78, 79, 84, 63, 64, 65 and 66 to come to such conclusion.

3. Gang rape and murder of deceased On the basis of evidence on record, the trial Court also concluded that it was clearly established that 'X' was gang raped by the appellants and thereafter murdered. The Mohammad trial Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 12 CRA No.4/2015 Court placed strong reliance upon finding of Dr. Fareeda (PW-

66) to base its finding in this regard. The trial court found that it was evident from the opinion of the medical team and the statements of the concerned doctors recorded in the Court that the deceased had been subjected to rape multiple times which was apparent from the multiple bruises and abrasions on the private parts, medial sides of thighs. The doctor also found the perineum torn, ecchymosed and bruised vagina. It was also clearly proved and demonstrated by the medical evidence that the deceased 'X' was done to death by the appellants by slitting her throat.

4. Seizures made during investigation of the case The trial court found the seizures made during investigation in respect of dead body, grass lying on spot blood-soaked clay, plain clay, wearing apparels i.e. under-shirt, frock, dupatta and trouser of the deceased, wrist watch, school bag with books, Coca Cola bottle, half filled wine bottle, shoes of the deceased and seizure of moulds, proved. The trial Court also clarified that all the seizures had not been made by the police on the date of occurrence i.e. 20.07.2007 and some had been made on 21st of July, 2007. The trial Court has, on the basis of evidence on record, opined that the prosecution had sufficiently explained as to why all seizures could not be made on the date of occurrence and also that the site of occurrence was properly preserved during intervening night of 20th and 21stMohammad July, Altaf 2007.

Bhat

I attest to the accuracy and authenticity of this document 17.10.2024 14:47 13 CRA No.4/2015

5. Seizure of moulds from the spot of occurrence It was held by the trial Court that the moulds had been obtained by the investigation team through experts from FSL and the same were seized on 21st July, 2007 in the presence of Executive Magistrate. There were more than ten attesting witnesses in EXPW-6/2 to prove that foot print impression were obtained and properly sealed in presence of the Executive Magistrate. It was also found established that the moulds which were picked up and sealed in the presence of the Executive Magistrate were forwarded to the FSL for opinion. It was also found established that the chappal of all the four accused were seized when these were in the feet of the appellants. In this regard the trial court relied upon the evidence of PW-18 and PW-19, PW-6, PW-7, PW-9 and PW-71. The Trial Court also placed strong reliance upon statement of PW-76 Mr. H.C.Bhagat, Deputy Director, FSL, who in his statement before the Court had clearly deposed that he had found similarities in the design pattern of the sole etc. of the moulds and seized chappal belonging to the appellants. The trial Court, thus, concluded that the foot prints which were found on the spot were by the chappals worn by the appellants on the date of occurrence.

6. Evidence regarding presence of accused on spot. On the basis of evidence of PW-27, PW-28, PW-29, PW-30, PW-31, PW-31, PW-32, PW-33, PW-34 and PW-35 and others Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 14 CRA No.4/2015 it was sufficiently proved that on the date of occurrence and a day before i.e. 19th July, 2007, the appellants were found in and around the place of occurrence.

7. Identification Parade The trial Court, on the basis of evidence on record, also concluded that the identity of the appellants was sufficiently established. The trial Court has, though found some discrepancies and irregularities in the conduct of identification parade, yet has concluded that many of the witnesses examined by the prosecution in this regard were already knowing the appellants.

8. Arrest of the accused There is not much dispute on the arrest of the accused, which was made by the police on 22nd July, 2007 through different arrest memos, which also stand sufficiently proved before the trial Court.

9. Seizure of sawdust and pubic hair from the dead body of 'X' On the basis of evidence of medical team and the experts of the FSL, the trial Court concluded that the sawdust, which was picked up by the medical team from nostrils, eyes and mouth of the deceased and the sawdust which was picked up from the shirt of the appellant-Jehangir and from the house of Gani Mir was similar in characteristics. This is how, the trial Court has held that the appellant-Jehangir was connected with Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 15 CRA No.4/2015 commission of crime. So far as, pubic hair recovered from the body of the deceased are concerned, the trial Court has found, on the basis of opinion of the experts, that the same were human pubic hairs similar in characteristics with public hair plucked from the appellant-Suresh. This is how, as per the trial Court, complicity of appellant-Suresh with the commission of crime has been established.

10. Seizure of weapon of offence The trial Court has concluded that the weapon of offence i.e. knife which was used by the appellants for committing the murder of 'X' was recovered from a place only known to the appellant Mohd. Sadiq Mir and the same was recovered at the instance and on the basis of disclosure statement made by Mohd. Sadiq Mir, in custody of the police. The disclosure statement, as per the trial Court, was sufficiently proved by the evidence of PW-72 and PW-11. The recovery of the weapon of offence, which was witnesses by PWs-10, 11, 12, 71 and 72 has also been sufficiently proved by the testimonies of the said witnesses. Besides, there is also photography and videography of the entire process of recovery.

11. FSL report regarding blood found on the weapon of offence and its matching with the blood found on spot on the grass, clay and under-shirt of the deceased. Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 16 CRA No.4/2015 The trial Court has also found established that the blood found on the weapon of offence and the blood that was found on spot on the grass, clay and under-shirt of 'X' was human blood of group "B", which clearly establishes that the throat of the deceased was slit by the appellants by use of weapon of offence recovered at the instance of appellant- Mohd. Sadiq Mir. The trial court has relied upon the evidence of FSL expert PW-75.

12. Opinion of the Doctor with regard to weapon of offence i.e. knife Mark-G The trial Court has also found that the incised wound caused on the neck of the deceased 'X' could be caused with the weapon of offence recovered and seized at the instance of and on the disclosure made by the appellant-Mohd. Sadiq Mir. The trial Court relied upon the opinion given by the doctor in the certificate issued by him to the effect that the weapon (desi shark) which was a sharp edged weapon could cause injury i.e. incised wound mentioned in the postmortem report. This is how the trial Court found the weapon of offence recovered on the disclosure of and at the instance of the appellant-Mohd. Sadiq Mir connected with and responsible for inflicting incised wound on the neck of the deceased 'X'.

13. Seizure of wearing clothes of the accused and confession made by them Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 17 CRA No.4/2015 The trial Court also found established the fact that the clothes worn by appellant-Suresh Kumar were found hidden underneath the stones at his instance and on the disclosure made by the said appellant. Similarly, in respect of appellant- Azher Ahmed Mir also the clothes were recovered in the similar manner. The trial Court has also held proved the disclosure statement made by Jehangir and the recovery of wearing clothes at his instance. The appellant-Mohd. Sadiq Mir was, however, found wearing same clothes as he was wearing on the date of occurrence. The trial Court, on the basis of these disclosure statements and on the recovery and seizure of the wearing clothes of the appellants, also concluded that the conduct exhibited by the appellants in hiding wearing clothes to avoid detection of evidence was relevant under Section 8 of the Evidence Act and was, thus, a corroborative piece of evidence.

14. Arrest of accused and medical examination. On the basis of evidence on record, the trial Court has also found that the marks, scratches, bite marks, abrasion etc detailed in the certificate(s) on the different body parts of the appellants was also a relevant fact, worth consideration as it was related to the effect of occurrence and, therefore, admissible under Section 7 of the Evidence Act. The trial Court has reproduced the certificates issued by the doctor, who examined the appellants to arrive at such conclusion. Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 18 CRA No.4/2015

15. Seizure of blood from accused for DNA profiling. The trial Court has also found that the blood samples from the appellants were taken in the presence of Executive Magistrate, doctor and other five witnesses. These blood samples were picked up for DNA profiling and were forwarded to FSL Central Laboratory, Chandigarh for examination. As per the opinion of the expert in the FSL Central Laboratory, Chandigarh, Dr. Sanjiv, Assistant Director, FSL Chandigarh, who disclosed before the trial Court and proved the certificates, the blood samples of Suresh Kumar and Jehangir have matched 100% whereas in the reference blood samples of appellants Azher and Mohd. Sadiq Mir matched upto 80% with the stains on the salwar of the deceased 'X'. The trial Court has, thus, concluded that the matching of blood samples of the appellants with the stains on salwar in the DNA profiling and examination is a strong circumstance connecting the appellants with the commission of gruesome rape and murder of the deceased 'X'.

16. Evidence regarding potency of the accused. Indisputably, the evidence on record clearly proposes that all the four appellants were medically fit and were capable of performing sexual act. This is so certified by the doctor, who examined them. The trial Court has found this fact also proved beyond reasonable doubt.

Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 19 CRA No.4/2015

7. The trial Court, relying upon the aforesaid chain of circumstances and having regard to the total denial of the appellants in their examinations recorded under Section 342 Cr.P.C., came to the conclusion that the chain of circumstances to sustain the charge has been fully established and the proved circumstances clearly demonstrate that the gruesome rape and murder has been committed by the appellant and nobody else.

8. The trial Court brushed aside minor contradictions appearing in the statements of the witnesses as were sought to be exploited by the defence counsel at the time of arguments. It was, thus, concluded by the trial Court that the prosecution had succeeded to establish beyond any reasonable doubt that the appellants alone had kidnapped the minor near Batpora Wuder road on 20.07.2007 with common intention to commit gang rape. They not only kidnapped and gang raped the minor girl but after satisfying their lust, they also committed gruesome murder of the hapless minor. The trial Court, thus, held the case set up by the prosecution against the appellants proved beyond any reasonable doubt and convicted all of them for the offences punishable under Sections 341, 363, 376(2)(g), 302 and 34 RPC.

9. The appellants are aggrieved of and have called in question the judgment of conviction and order of sentence passed by the trial Court, inter alia, on the following grounds:- Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 20 CRA No.4/2015

i) That the trial Court has failed to appreciate that the prosecution evidence is highly inconsistent, improbable and unnatural. The trial Court has not appreciated in correct perspective the testimony of PWs-34 and 35, who had seen the Deceased 'X' near the place of occurrence between 1 pm to 2 pm on the fateful day. The witnesses aforesaid deposed in the Court that when they saw the deceased 'X' they did not see any of the four appellants.

They also stated that they were ready to identify one person they had seen on the date of occurrence, however, both of them died.

ii) That the reliance placed by the trial Court on the provisions of Section 27 of the Evidence Act Svt., 1997 to hold proved the fact that the weapon of offence recovered at the instance of and on the disclosure made by the appellant-Mohd. Sadiq Mir was totally out of place. Neither the disclosure statement was recorded in the manner required by law nor was the same proved before the Court. There is noting that has come on record, which would show that the weapon of offence was recovered from the place which was only known to the appellant -Mohd. Sadiq Mir and nobody else could have access thereto.

Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 21 CRA No.4/2015

iii) That the trial Court has also failed to appreciate that in their testimony before the trial Court, PW-11 and PW-12 clearly deposed that they had not seen any blood stain on the knife, as such, it was totally improbable rather impossible for the FSL to find Group-B blood stains on the weapon of offence. It is, thus, clear that the weapon, which was sent to the FSL was not the same as was recovered at the instance of appellant-Mohd. Sadiq Mir.

iv) That the wearing apparels of appellant Nos. 2, 3 and 4 were not seized in accordance with law rather they were collected from their respective homes.

v) That the trial Court has attached undue weightage to the postmortem report and has wrongly concluded that the injuries found on the deceased could have been caused by the weapon of offence recovered at the instance of appellant No.1.

vi) That the trial Court has also failed to appreciate that no footprints from the chappal were picked up by the investigating team and only mould of the chappal were picked up for forensic examination. In the absence of clear and cogent evidence that the moulds were actually of the chappal belonging to the accused and recovered at their instance and disclosure, it was not appropriate for Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 22 CRA No.4/2015 the trial Court to connect the appellants with the moulds of chappal allegedly found on the place of occurrence.

vii) That the trial Court has erroneously placed reliance upon the testimony of PWs-64, 65 and 66, who have stated that the sawdust was recovered from the eyes, nostrils and mouth of the deceased. The trial Court did not take into account the fact that why the prosecution did not get ascertained the presence of sawdust in the lungs. The appellant No.2 was a carpenter by profession and had he been the perpetrator of the crime there would have been every likelihood of sawdust being found on and around the dead body of the deceased 'X'. This aspect of evidence has escaped attention of the trial Court.

viii) That the trial Court has also failed to appreciate the evidence of PW-75, which does not make it clear as to whether the pubic hair recovered from the dead body was female pubic hair or male pubic hair. Except stating that the pubic hair recovered from the dead body was human hair, nothing more is stated by the said witness and, therefore, it creates reasonable doubt that the hair recovered from the dead body was probably the hair of the deceased 'X'.

ix) That the trial Court has also brushed aside the proved fact that the fingerprints obtained from the objects which Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 23 CRA No.4/2015 include some glasses, bag, empty plastic bottle and hair pin did not match with the fingerprints of any of the accused which clearly reflects that none of the appellants were present on the spot from where the dead body was recovered.

x) That the trial Court also did not take note of the contradictions between the evidence of PW-85 Dr. Sanjiv, Assistant Director, FSL Chandigarh and PW-75 Dr. Shahul Ahmad Kant, Scientific Assistant, FSL Srinagar with regard to the salwar having blood stains on it. It is submitted that PW-85 Dr. Sanjiv has not explained as to how Blood samples of all the four appellants matched with the stains on salwar of the deceased 'X' recovered from the place of occurrence. The time lag between the date of occurrence and examination of reference samples viz-a-viz the stains on the salwar for DNA examination also strikes at the credibility of the report of the FSL Chandigarh proved by PW-85 Dr. Sanjiv.

xi) That the trial Court has also failed to appreciate that as per the testimony of PW-66, dead and alive spermatozoa were found present in the vagina of the deceased 'X' whereas as per the medical jurisprudence, life of spermatozoa is upto 12 hours. If statement of PW-66 is to be believed then the crime took place around Mohammad1 toAltaf2Bhatpm I attest to the accuracy and authenticity of this document 17.10.2024 14:47 24 CRA No.4/2015 and postmortem was conducted at 7 pm. In that event how was it possible that dead and alive spermatozoa was still present in the vagina of the deceased 'X'.

xii) That the trial court has also failed to consider the plea of alibi in terms of Section 11 of the Evidence Act. The defence witnesses produced by them deposed that on the date of occurrence they had seen the appellant No.2 working as carpenter upto 7 pm and, therefore, could not have been expected to be at the place of occurrence between 1 to 2 pm, as is the case of the prosecution.

xiii) That the sentence of death awarded by the trial Court to the appellants is highly excessive and harsh, particularly in view of the fact that the appellants have been convicted on the basis of circumstantial evidence and not on the basis of direct evidence. The possibility of human error in the case of circumstantial evidence cannot be completely ruled out and, therefore, it is not safe to send somebody to gallows on the basis of such evidence.

1o. Mr. Ateeb Kanth, learned counsel appearing for the appellants has vehemently argued for the acquittal of the appellants on the grounds taken by him in the memo of appeal. He took us through the entire evidence to persuade us to take a view that the circumstantial evidence brought on record by the prosecution was not sufficient to connect the appellants with the commission of Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 25 CRA No.4/2015 offences, which they have been charged for. He submits that the circumstances relied upon by the trial Court have not been firmly established and there are so many missing links in the chain which put the entire prosecution story implicating the appellants in serious doubt. He would argue that the prosecution has neither been able to prove the presence of the appellants at or near the place of occurrence at the time of commission of crime nor has it pressed into service the 'last seen theory' specifically. The time gap between the alleged presence of the appellants in and around the area where the offence took place and time of occurrence is so large as would admit the possibility of person or persons other than the appellants intervening in between and committing the offence. He submits that the medical evidence lacks coherence and consistency and, therefore, cannot be made sole basis for connecting the appellants with the commission of crime. The DNA profiling is inconclusive and cannot be taken as a circumstance having been firmly established.

11. He would further argue that the manner in which the alleged weapon of offence has been recovered is also far from satisfactory and it would not be safe to rely on such fact even with the aid of Section 27 of the Evidence Act. He submits that neither the disclosure made has been sufficiently proved nor has the weapon of offence been recovered from a place which was only known to the one of the appellants i.e. appellant-Mohd. Sadiq Mir. The Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 26 CRA No.4/2015 Raida shop belonging to appellant-Mohd. Sadiq Mir was already sealed and was under the lock and key of the police and therefore, the police had every opportunity to plant the weapon of offence, which was later on recovered on the alleged disclosure made by the appellant-Mohd. Sadiq Mir. He also pointed out several contradictions in the statements of the witnesses to make good his point that the evidence on record does not inspire any confidence and falls short of proving the case against the appellants beyond reasonable doubt.

12. On the point of sentence, Mr. Ateeb Kanth learned counsel for the appellants would argue that indisputably there is no direct evidence against the appellants in the case and the appellants have been convicted on the basis of circumstantial evidence. Even if, one were to consider that the prosecution has proved some of the circumstances linking the appellants with the commission of the offences, yet on the basis of such evidence, it is not safe to deprive four human beings of their lives. In a case rested solely on the circumstantial evidence, the error of judgment by a human being cannot be ruled out. He would, therefore, submit that the sentence of death penalty imposed on the appellants is a sentence extremely harsh and excessive and in the event Court does not agree with the appellants seeking acquittal, he would pray for converting death penalty into life imprisonment.

Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 27 CRA No.4/2015

13. Per contra, Mr. Mubeen Wani, learned Deputy Advocate General appearing for the State, would support the judgment of the trial Court and submits that the circumstances which connect the appellants with the commission of crime have been firmly established leading to only one hypothesis that the crime has been committed by the appellants and appellants alone and none else. He would submit that the evidence on record clearly points towards the guilt of the appellants, who have not only gang raped a hapless school going minor girl but have, with a view to eliminate the evidence, committed her murder. He would submit that the appellants deserve maximum punishment and the trial Court committed no illegality in awarding death penalty to the appellants. He would further argue that the manner in which the gruesome crime has been committed, the appellants do not deserve any leniency. Their execution would send a right signal to the depraved minds who have no respect for life of the others and can go to any extent to satisfy their lust.

14. Having heard learned counsel for the parties and perused the material on record, we are of the considered opinion that the evidence on record is sufficient to connect the appellants with the commission of offence they are charged for.

15. We are aware that there is no direct evidence to the commission of offence and the entire case of the prosecution rests on the circumstantial evidence. It needs no emphasis that the Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 28 CRA No.4/2015 circumstantial evidence plays a significant role in criminal prosecution. Unlike direct evidence, which directly proves a fact such as eye witness testimony, the circumstantial evidence requires strong inference. It is now trite law that circumstantial evidence can be sufficient for conviction, if it excludes every reasonable hypothesis except that of guilt. The law does not make any distinction between direct and circumstantial evidence and both are potentially adequate in proving the facts. The note of caution is that such evidence must be consistent with the hypothesis of guilt and/or inconsistent with innocence and it must exclude other reasonable hypothesis. Such evidence would be sufficient to support conviction, if any rational fact finder could have found essential elements of the crime established beyond reasonable doubt.

16. In the recent times the scientific evidence like DNA profiling, digital evidence which are type of circumstantial evidence has gained significant prominence. With the progress made by the science, the scientific investigation, as of late, has become increasingly reliable and dependable. Most of the crimes are committed secretly and without having been watched by anybody. The detection of such crimes would, thus, depend entirely on the circumstantial evidence. To say that the circumstantial evidence is a weak evidence is now a thing of past. What, however, is required by the Court analyzing the circumstantial evidence, Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 29 CRA No.4/2015 brought on record by the prosecution, is to be doubly sure, that the circumstances from which the conclusion of guilt is to be drawn are fully established and all the facts so established lead to the hypothesis consistent with the guilt of the accused and excludes every hypothesis except the one proposed to be proved. To put it succinctly, there must be a chain of circumstances, so complete in itself, as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The legal position in this regard is very succinctly laid down by a Three-Judge Bench judgment of the Supreme Court in the case of Hanumant v. State of M.P., AIR 1952 SC 342, which has become locus classicus on the point. The relevant excerpt of the judgment is reproduced hereunder:-

" It is well to remember that in cases where the evidence in of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and pendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

17. In Venkatesan v. State of Tamil Nadu, (2008) 8 SCC 456, another Three-Judge Bench of Hon'ble the Supreme Court discussed and re-stated the principles for founding conviction on Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 30 CRA No.4/2015 the basis of circumstantial evidence. Surveying the case law on the subject, in particular, the judgment of Supreme Court in the case of Hanumant (supra) and Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, the Apex Court reiterated the settled position that the conviction can be based solely on circumstantial evidence but it should be tested by the touch stone of law laid down in the case of Hanumant (supra) and followed consistently in series of judgments by Hon'ble the Supreme Court.

18. This Court has elaborately discussed the tests which are required to be satisfied before guilt of accused is held proved by circumstantial evidence in the judgment rendered in the case of Kamlesh Kumar v. State of J&K, (Criminal Appeal No. CRA No. 18/2017 decided on 23.03.2022). What is held by this Court in the said case in paragraph No. 15 to 23 reads thus:-

"15. Before we delve further into the facts and circumstances of the instant case, we need to understand what the circumstantial evidence exactly is. The word "circumstantial"

itself implies that what is evident directly from the circumstances in any particular case, even though, the evidence itself is not direct, as is well said that a witness may lie but not the circumstances. It is, therefore, not in dispute that many a times circumstantial evidence becomes the only source for convicting a person. Chief Justice M Momir in the book "Textbook on The Law of Evidence" at page 13 very elegantly differentiates between direct and circumstantial evidence and points out that: English text writers divide the evidence into (a) direct or positive evidence and (b) indirect or circumstantial evidence. In this sense direct evidence is that which goes expressly to the very point in question and proves it, if believed, without aid from inference or deductive reasoning, e.g., eye witness to a murder is direct evidence. The circumstantial evidence does not prove the point in question directly, but establishes it only by inferences. Thus, if there is no eye witness to a murder, the fact that A had the motive to murder B or that A was seen running away with a blood stained knife from B‟s room where B was found dead immediately after B‟s cries were heard would be circumstantial evidence as against A. Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 31 CRA No.4/2015

16. Similarly, G.S.Pande, a retired Professor of Law from Lucknow University has explained the concept of circumstantial evidence in the following words:-

"Circumstantial evidence is that which relates to various circumstances which are associated with the real point in issue in such a way as to help the Court in coming to a conclusion about the existence or non- existence of the fact in issue. It is often said that a witness may tell a lie but circumstances cannot. It is an exaggeration of its importance though it contains a grain of truth insofar as circumstances have no volition and they cannot have interest and motive which inspire a human being to give false evidence. However, circumstances can also mislead the Court. Sometimes they can also be manipulated by human agency."

17. What is said by Prof. G.S.Pande reproduced herein must serve as a note of caution for all Courts that they must, before arriving at any judgment, take into consideration the crucial fact that circumstantial evidence is not manipulated by any human agency, which includes the police or other authority investigating the case. Should they fail to take into account this important aspect of circumstantial evidence, there is every likelihood of an innocent person being wrongly sent to gallows or jail, as the case may be for no fault except that circumstances implicate him in any particular case.

18. While appreciating the evidence on record in particular the circumstantial evidence, we need to keep in mind the cardinal principal of criminal jurisprudence that accused is presumed to be innocent till proven guilty and the burden to establish the guilt of the accused is on the person or authority that brings out charge against him. It is for the prosecution to prove its case by leading evidence beyond any reasonable doubt. The evidentiary value of the circumstantial evidence acquires immense importance in the absence of direct evidence in any given particular case. The circumstantial evidence essentially means establishment of a fact from which some other fact is inferred. It deals with a fact on which an inference is to be founded, as there could be fallibility of inference, as such, it is not considered best type of evidence.

19. At this point, we would like to refer what was pointed by Sir Alfred Wills in his book on „circumstantial evidence". The author delineated and explained the rules that are to be kept in mind while following the circumstantial evidence in the following manner:-

(1) The facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;

Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 32 CRA No.4/2015

(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;

(3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits;

(4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted".

20. Having said that, we cannot give diminished importance to the views of Baron Parke when he says that higher degree of evidentiary value is required to be accorded to the circumstantial evidence. In the words of Boren Parke, in the circumstantial evidence, if cogent and properly let in is of better probative value than direct evidence, for any scheming witnesses might concoct a well-knit story. The well known jurist Salmond, too, endorses what Baron says to conclude that "it is usually more difficult to fabricate a convincing chain of circumstance than to utter a direct lie."

21. It is, thus, trite that before convicting a person on circumstantial evidence alone, Court must fully satisfy itself that circumstances are conclusively established and point convincingly to the guilt of the accused and that the accused is unable to satisfactorily explain the circumstances that leave him/her in dock.

22. Hon'ble the Supreme Court in the case of Eradu v. State, AIR 1956 SC 316 held circumstantial evidence should point inevitably to the conclusion that it was the accused and the accused only who were the perpetrators of the offence and such evidence should be incompatible with the innocence of the accused.

23. In Sharad Birdichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, Hon'ble the Supreme Court elaborated the five golden principles of circumstantial evidence laid down in Hanumant v. State of M.P., AIR 1952 SC 343, which are being followed consistently in the later cases. These five principles are as follows:-

"1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.

2. That facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

3. The circumstances should be of a conclusive nature and tendency.

Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 33 CRA No.4/2015

4. They should exclude every possible hypothesis except the one to be proved, and

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability that act must have been done by the accused."

19. It is in the light of this settled legal position, we need to examine the evidence on record and the findings of fact returned by the trial Court to find out whether the circumstances pleaded and established by the prosecution before the trial Court meet and satisfy the tests laid down by the Hon'ble Supreme Court consistently since the judgment in Hanumant (supra) and reiterated by us herein above. The circumstances on which the prosecution relied upon and led evidence to prove before the trial Court have already been enumerated herein above in paragraph No.6 of this judgment. These are the circumstances, which were pleaded by the prosecution and found by the trial Court meeting and satisfying the tests laid down in Hanumant (supra) and several other cases decided by the Supreme Court in respect of conviction on the basis of circumstantial evidence.

20. Before we analyze the reasoning given by the trial Court to support its findings that the chain of circumstances has been firmly established in the case, we would like to point out that there are certain facts which are not even disputed by the defence.

i) Age of deceased 'X':

Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 34 CRA No.4/2015 The age of the deceased 'X' on the date of occurrence i.e. 20.07.2007 was below 15 years, meaning thereby, the deceased was minor at the time of her death. To return its findings the trial Court has relied upon the statement of PW-55 and PW-64. That apart, there is also documentary evidence on record in the shape of school record which clearly proves that the date of birth of the deceased, as indicated in the school record, was 15.03.1994.

ii) The date, place and time of occurrence.

The date of occurrence i.e. 20.07.2007 is not much in dispute. The dead body was recovered on the said date and the same was subjected to postmortem at 7 pm in the evening. As per the evidence of the doctors, who conducted the autopsy, occurrence is stated to have taken place 5-6 hours before i.e. between 1 to 2 p.m. There is also evidence on record that the deceased was student of Uqaab Public School, Langate and attended the same on the fateful day. There is also evidence to prove that the school closed at 1 p.m. and the deceased left for her home through Bhatpora link road. So far as place of occurrence is concerned, the evidence on record clearly demonstrates that the occurrence had taken place at the place from where the dead body was recovered i.e. Wuder near Bhatpora-Langate road. Learned counsel for the appellants could not point out any contradictory evidence or circumstance to doubt that the Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 35 CRA No.4/2015 occurrence had taken place on 20.07.2007 at Wuder near Bhatpora link road between 1 to 2 p.m.

iii) Gang rape and murder of the deceased 'X' There is overwhelming evidence on record, particularly, testimonies of PW-64, 64-A, 65 and 66, which clearly establishes that before her murder, the deceased 'X' had been subjected to gang rape. Pointedly, a question was asked to PW-66 Dr. Fareeda as to on what basis she was saying that the deceased had been gang raped. In reply, the lady doctor stated that on local examination of genitals, there were found moderated pubic hair matted containing clay, perineum ecchymosed, torn with multiple bruises on medial side of thighs. Hymen was ruptured, containing fresh blood clots. Vagina wall lacerated. Her both wrists and legs were having bruises and scratches. She, therefore, stated that the nature of injuries that were found on the dead body were clearly suggestive of the fact that the deceased had been raped multiple times. So far as murder of the deceased is concerned, there could no dispute. The dead body was recovered from the Wuder, seized in the presence of independent witnesses and subjected to postmortem by a team of doctors in the same evening at 7 p.m. in the hospital at Langate.

Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 36 CRA No.4/2015 These are some of the facts or we call them circumstances which are firmly established and with which there is no serious dispute between the parties.

21. Having adverted to undisputed evidence on record, we now advert to the relevant circumstances that, as per the trial Court, have been firmly established by the prosecution and form a chain leading to the hypothesis which is inconsistent with the innocence of the appellants.

i) Presence of the accused in and around the place of occurrence at the time the offence is proved to have been committed.

ii) Previous conduct of the appellants.

iii) Seizure of sawdust and pubic hair from the dead body of the deceased and their connection with appellant No.2 and appellant No.4 respectively.

iv) Disclosure statement of appellant No.1 and consequent discovery of the weapon of offence i.e. knife used in the commission of offence.

v) Evidence in the shape of FSL report regarding blood found on the weapon of offence and its matching with the blood samples found on spot of occurrence on grass, clay, undershirt of the deceased.

vi) Opinion of the doctor with regard to the possibility to use of weapon of offence in commission of offence.

Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 37 CRA No.4/2015

vii) Arrest of the appellants and unexplained injuries found on their bodies.

viii) DNA profiling indicating matching between blood samples of the appellants and stains found on the salwar of the deceased 'X' recovered from the place of the occurrence.

ix) Evidence with regard to potency of the appellants.

22. These are the major circumstances, which, as per the trial Court, stand firmly established and that they form a chain of circumstances complete in itself leading to only one hypothesis, which is consistent with the guilt of the appellants. We will discuss these circumstances one by one to find out whether the view taken by the trial Court on the acceptance of the circumstantial evidence is correct in law or not. Disclosure statement and recovery of weapon of offence 22.1. It is in the evidence of the prosecution that appellant No.1-Mohd.

Sadiq Mir made a disclosure statement recorded in the presence of PW-11 and PW-72. It is on the basis of this disclosure statement made by the appellant-Mohd. Sadiq Mir, weapon of offence was recovered at his instance from his Raida type shop in the Langate bazaar. The shop was under the lock and key of the appellant- Mohd. Sadiq Mir and, therefore, nobody else had access thereto. The recovery of weapon of offence i.e. knife (Mark-G), which has been effected by the police vide EXPW-10/2, has been amply proved by the testimonies of the witnesses PWs-10, 11, 12, 71 and Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 38 CRA No.4/2015

72. The videography in respect of recovery of weapon of offence, too, has been prepared and the video cassette has been seized vide EXPW-84/3. The trial Court has seen the video displayed in the Court.

22.2. From the aforesaid evidence on record, it is abundantly clear that the prosecution has not only proved the disclosure statement made by the appellant-Mohd. Sadiq Mir but has also recovered the weapon of offence at his instance from a place, which was known only to appellant-Mohd. Sadiq Mir and nobody else had access thereto.

22.3. It is trite law that Section 27 of the Evidence Act is a critical exception that allows certain statements made by accused during police custody to be used as evidence provided such statement leads to discovery of fact that was not previously known to the police.

22.4. In the recent judgment of Perumal Raja @ Perumal v. State, AIR 2024 SC 460, the Hon'ble Supreme Court has reaffirmed that for Section 27 of the Evidence Act to be invoked, following three conditions must be met:-

      i)         The accused must be in police custody;

      ii)        The information must lead to discovery of a fact;

      iii)       Only part of the statement directly leading to the

                 discovery is admissible.


                                                             Mohammad Altaf Bhat
                                                             I attest to the accuracy and
                                                             authenticity of this document

                                                             17.10.2024 14:47
                                  39     CRA No.4/2015

22.5. In yet another significant case of Rajesh v. State of Madhya Pradesh; 2023 LiveLaw (SC) 814, Hon'ble the Supreme Court has cautioned against misuse of Section 27 of the Evidence Act where confession made by the accused before the police was admitted. Hon'ble the Supreme Court flagged various issues with regard to Section 27 of the Evidence Act cautioning that its frequent use by the police should be scrutinized to avoid potential misuse. The Supreme Court, however, reiterated that each case should be judged on its facts.

23. In the instant case, it is not in dispute that the confessional statement/discovery/disclosure statement was made by the appellant No.1-Mohd. Sadiq Mir in the custody of police after he along with his associates-appellant Nos. 2, 3 and 4 had been formally arrested. He made a categorical statement that the weapon of offence i.e. knife used in the commission of crime had been concealed by him in his Raida type shop in Langate Bazar and that he can take the police and the witnesses to the said shop and get the weapon of offence recovered. At his instance and accompanied by him police proceeded to the shop in question where the appellant-Mohd. Sadiq Mir in the presence of PW-10, 12, 71 and 72 opened the lock of his shop and took out the weapon of offence and presented the same to the police. All the three ingredients of Section 27 of the Evidence Act were, thus, completely met.

Mohammad Altaf Bhat

I attest to the accuracy and authenticity of this document 17.10.2024 14:47 40 CRA No.4/2015

24. Statement of appellant-Mohd. Sadiq Mir that the weapon of offence used in the commission of crime was a knife concealed by him in his Raida type shop is that part of his statement, which, in terms of Section 27 of the Evidence Act, is admissible in evidence.

25. Now let us see whether the weapon which was recovered at the instance of the appellant-Mohd. Sadiq Mir was the actual weapon used for slitting the neck of the deceased 'X'. The FSL report has found the human blood of Group-B on the said weapon recovered from the Raida type shop of the appellant No.1. The blood group matches with the group of blood found in the stained clay, undershirt and scarf of the deceased. This is amply proved by the expert evidence of the Scientific Assistant, FSL Srinagar. The trial Court has reproduced the opinion of the FSL expert as contained in EXPW-FSL-75/1 at page 266 of the judgment. The matching of blood group of the blood stains found on the weapon recovered at the instance of the appellant-Mohd. Sadiq Mir and the blood group of the stains which were found in the soaked clay and seized apparels of the deceased leaves no manner of doubt that the slitting of neck of the deceased, which led to her death was done by the use of weapon of offence recovered at the instance of appellant No.1-Mohd. Sadiq Mir from his shop. The FSL expert PW-75 has stood by his opinion and has explained it further during his examination. Learned counsel appearing for the Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 41 CRA No.4/2015 appellants could not put any dent or create any doubt on the correctness of the opinion of PW-75.

26. The aforesaid aspect of the matter i.e. use of knife in the commission of offence is further fortified by the opinion of the doctor wherein it has been categorically certified and mentioned that the injury on the neck of the deceased could be caused with the weapon forwarded and shown to the doctor for examination. This evidence led by the prosecution has not been seriously challenged by the learned counsel for the appellants except pointing out minor discrepancies here and there.

27. From the aforesaid discussion, we find that the trial Court has rightly concluded that the circumstance that the weapon of offence was recovered pursuant to the disclosure statement made by and at the instance of appellant No.1-Mohd. Sadiq Mir was firmly established. The trial Court is equally correct in holding that the evidence of expert of FSL coupled with the certificate issued and proved by the Scientific Assistant, the circumstance i.e. the weapon of offence (Shraakh) recovered at the instance of appellant No.1 was actually used for committing murder of the deceased by slitting her throat. As a matter of fact, the injuries as were found on the dead body, particularly fatal injury on the neck, too, are proved to have been caused by the weapon recovered at the instance of appellant No.1.

Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 42 CRA No.4/2015 Seizure of sawdust and pubic hair from the dead body of the deceased.

28. PW-64 and PW-64 A and PW-65 and PW-66 are the doctors, who conducted postmortem of the deceased. During postmortem, they recovered sawdust from the eyes, nostrils and mouth of the deceased. It was seized in presence of the witnesses. The sawdust picked up from the dead body of the deceased was put in a jar and duly sealed, which was seized by the Investigating Officer along with pubic hair picked up from the body of the deceased vide EXPW-4/1. This seizure was effected in presence of more than eight witnesses, who have appeared as witnesses for the prosecution and sufficiently proved the seizure. As per the seizure duly proved, the pubic hair was found and picked up from the private parts of the deceased and the sawdust from the face, nostrils and mouth of the deceased. Two different plandas marked as "B" and "C" were prepared in respect of pubic hair and sawdust and same were forwarded to the FSL for expert opinion. 28.1. It is noteworthy that all these samples were taken in presence of the Executive Magistrate vide EXPW-62/2. The sawdust was also recovered from the clothes, which the appellant No.2-Jehnagir was wearing at the time of occurrence, which were seized vide EXPW-13/7. The investigating team also seized the sawdust and some pieces of wood from the house of Abdul Gani, where the appellant No.2- Jehangir was, during those days, working. These three types of sawdust seized vide EXPW-4/1, EXPW-13/7, Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 43 CRA No.4/2015 EXPW-13/14 were sent to FSL for opinion of the expert. The expert opinion, which is amply proved, is as under:-

"Physical microscopical and density analysis reveals that K- 162/07 (C) and K-179/07 were found to be dust of wood similar in characteristics."

28.2. PW-75 Shahul Ahmad Kant, Scientific Assistant appeared before the trial Court and proved his opinion rendered vide EXPW-FSL- 75/4. In cross-examination the defence could not bring out anything to contradict the findings and opinion given by him. The matching of sawdust, which was amply proved by the prosecution by leading cogent evidence, is a firmly established circumstance that connects appellant No.2-Jehangir with the occurrence. 28.3. So far as pubic hair is concerned, as per the opinion of the expert, same was found to be human pubic hair similar in characteristics with the hair that was picked up from the appellant-Suresh Kumar. Pubic hair which was recovered from the deceased vide EXPW- 4/1 and pubic hair of appellant-Suresh Kumar seized vide EXPW- 62/2, both samples were taken in presence of the Executive Magistrate and were forwarded to the FSL. For clarity, we reproduce the opinion of the FSL expert contained in the report EXPW-FSL-75/4. The opinion reads thus:-

"Physical, microscopic and density analysis reveals that the exhibit No.K-161/07 and K-175/07 were to be human pubic hair similar in characteristic."

Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 44 CRA No.4/2015

28.4. The pubic hair picked up from the deceased was marked as K-

161/-7 and the pubic hair plucked from the appellants were marked as K-175/07, K-167/07, K-177/07 and K-178/07. As has been proved by the prosecution, pubic hair which was picked from the private parts of the deceased marked as K-161/07 and the pubic hair plucked from appellant-Suresh marked as K-175/07 were found to be human pubic hair similar in characteristics. This circumstance was firmly established.

28.5. Learned counsel for the appellants could not put forth any logical argument to discord either the seizure of the pubic hair or the opinion of the FSL expert i.e. PW-75 Shahul Ahmad Kant, FSL Scientific Assistant.

28.6. The trial Court has, therefore, rightly concluded that matching of sawdust recovered from the body of the deceased and that recovered from the clothes and place of working of the appellant- Jehangir connects the appellant-Jehangir with the commission of crime. Similarly the matching of pubic hair picked up from private part of the deceased with that plucked from the appellant-Suresh Kumar connects appellant-Suresh Kumar with his participation in the commission of crime along with others.

Seizure of moulds of chappal from the spot of occurrence and its comparison with the chappal recovered from the accused.

29. The moulds of chappal which were printed on the clay/earth at the place of occurrence were obtained by the police through experts Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 45 CRA No.4/2015 from the FSL vide EXPW-6/2, FSL-3 and FSL-4. Seizure of these moulds on 21.07.2007, which were bearing mark-M & M-1 was made in the presence of Executive Magistrate. The prosecution has sufficiently proved this aspect. Apart from the testimony of the Executive Magistrate, 10 attesting witnesses, who had witnessed the picking up of the moulds of the chappal, had appeared as prosecution witnesses and stood the test of cross- examination.

29.1. During the trial, the prosecution firmly established that the moulds which were picked up and forwarded to the FSL for opinion along with the chappals of the appellants, which were seized; some from their possession and some at their instance. The chappals from the possession of the appellants were seized on 23.07.2007. The chappal which were seized from the possession of appellant- Mohd. Sadiq Mir were sealed in Planda Marked G-5. The chappals seized from appellant-Suresh Kumar were sealed in Planda marked as G-6. The chappals which were seized from the possession of appellant Jehangir Ahmed and Azher Mir were also sealed in two different Plandas and Marked G-7 and G-8. There is sufficient description of the chappals seized from the accused in EXPW18/5. Sending of these chappals for examination and analysis is also amply proved. PW-76, H.C.Bhagat, Dy. Director, FSL Srinagar, who has rendered opinion in this regard has Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 46 CRA No.4/2015 appeared in the witness box and proved his opinion. His opinion is significant and is reproduced hereunder:-

"The packet marked as "G-5" was sealed with three intact seals. These seals were tallied with the specimen of the seal forwarded to me. On opening, it was found to contain a pair of plastic chapal with trade mark "Italica" of light creamish colour The left foot chapal was marked as exhibited B -890/0 7 and the right foot chapal was marked as exhibit No.B-891/07 by inc.

The packet marked as "G-6" was having three intact seals. The impression of these seals were tallied with the specimen seal forwarded to me. On opening this packet, it was found to contain pair of plastic chapal of light Grey colour 256 The left foot chapal was marked as exhibit B-892/07 and right foot was marked as exhibit B -893/0 7 by me.

The packet marked as "G-7 was sealed with four intact seals. The impression of these seals were tallied with the impression of specimen seal forwarded to me. On opening, it was found to contain a pair of black colour shoes of trade mark "Five Star" of size 8. The left foot shoe was marked as exhibit B-894/07 and the right foot shoe was marked as exhibit B -895/0 7 by me. The packet marked as "G-8" was sealed with four intact seals. The impression of these seals were tallied with the impression of specimen seal which forwarded to me. On opening, it was found to contain a pair of Nylon chappal of trademark "Tuff". The left foot chapal was marked as exhibit B-896/07 and right foot chapal was marked as exhibit 897107 by me.

The exhibit No.866/07 and exhibit No. 887/07 were thoroughly subjected to physical examination. The crime mould marked exhibit No.B-888/07 and B-889/07 have been compared with the soles of the exhibit Nos. marked as B5 90/07 to B-897/07 and the following observations were drawn.




       S.No.      Exhibit No.   Length in Breadth   of Breadth of in Breadth
                                Cms       Ball portion steps in Cms  of Heel
                                          in Cms                     in Cms

       1          B-888/07      30.5Cms        Not clear      9.0 Cms                 9.0 Cms


       2.         B-891/07      30.5 Cms       10.5 Cms       9.0 Cms                 9.0 Cms



                                                                  Mohammad Altaf Bhat
                                                                  I attest to the accuracy and
                                                                  authenticity of this document

                                                                  17.10.2024 14:47
                                     47        CRA No.4/2015




             3.      B-889/07       Not clear     11.7 Cms          8.8 Cms                 8.3 Cms


             4       B-892/07       30.0 Cms      11.7 Cms          8.8 Cms                 8.2 Cms

OtheOther points of similarly in exhibit No.886/07 and B591/07:

1.Design pattern of the sole corresponds similarly on both the exhibits. 2.Some clay stuck on the inner margin side of the heel corresponds similar impression on both the exhibits. 3.A wear and tear mark on the inner margin side of the heel is giving similar impression on both the exhibits. 4.A hole below the big toe and first toe portion is giving similar impression on both the exhibits."

29.2. PW-76 Mr. H.C.Bhagat, Dy. Director FSL has further stated that the exhibit No.B-888/07 and B-889/07 have been compared with the soles of the exhibits detailed above and after their comparison with the soles of exhibit No.B-890/07 and B-891/07, he has drawn the following observation:-

"The impression of crime mold marked exhibit No.888/08 is from the sole of right foot plastic chapel marked as exhibit No.891/07. The impression on the crime mold marked as exhibit No.B-889/07 is from the sole of the left foot of the plastic chapel marked as exhibit No.B892/07. The exhibit No.B-891/07 was found in the packet (Palanda) marked as "G-5". The chapels in this palanda were in the feet of accused Mohamad Sadiq Mir The foot of the chapel exhibit No.B-892/07 was found in the palanda/packet which was marked as "G-6" and as per EXPW-85/5. This chapel was in the feet of accused Suresh Kumar The expert opinion with regard to these chapels and the molds is with the impression Mohammad on theAltaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 48 CRA No.4/2015 crime mold is from these two chappels. The impression of crime mold exhibit No.B-

888/07 is from the right foot plastic chappel of accused No.] Mohamad Sadiq Mir and the impression on the crime mold No. 889107 is from left foot plastic chapel exhibit No.B-

892/07. So far as the impression on mold and so far as chapels seized from the accused is concerned, what emerges is that the impressions on the mold is from the right foot chapel of accused No.] and left foot chapel of accused No.4 Suresh Kumar."

29.3. The witness was pointedly asked by the defence, as to the basis on which he had rendered his opinion. In answer, Mr. Bhagat stated as under:-

"1. Design pattern of the sole corresponds similarly on both the exhibits.

2. Some clay stuck on the inner margin side of the heel corresponds similar impression on both the exhibits.

3. A wear and tear mark on the inner margin side of the heel is giving similar impression on both the exhibits.

4. A hole below the big toe and first toe portion is giving similar impression on both the exhibits."

29.4. From the aforesaid discussion, it is beyond any doubt that this circumstance has been firmly proved by the prosecution by leading cogent and unflinching evidence. The comparison of the chappals and the imprints taken from the place of occurrence confirms the presence of the appellants Mohd. Sadiq Mir and appellant Suresh Kumar at the place of occurrence, for, the chappals of appellant-Mohd. Sadiq Mir and appellant-Suresh Kumar have been found to have created the impression of the Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 49 CRA No.4/2015 moulds which were picked up by the FSL people from the place of occurrence.

Injuries found on the bodies of the appellants.

30. As per the certificate issued by the doctor, abrasion marks on face with sides and on neck below ear were found on the body of appellant Mohd. Sadiq Mir, who was medically examined on 22.07.2007 i.e. after two days of the occurrence. Similarly, a bite mark on left hand over the index finger with little exudation of approximately 2-3 days duration was found on the body of the appellant-Jehangir on medical examination. There was partially healed abrasion on prepuce. The scars are of approximately 24 to 48 hours duration on the body of the appellant-Suresh Kumar. Bruise marks on both sides of upper arms of 2-3 days duration and partially healed abrasions (3 numbers) on shaft of penis were found on examination of appellant-Azhar. The medical experts, who examined the appellants have proved the certificates and their testimony has remained unchallenged.

30.1. From the above, it is evident that during commission of crime, the deceased had put up struggle and, therefore, the abrasion and other type of injury marks were found on the body of the each appellant. In their statements under Section 342 Cr. P. C the appellants have not tendered any explanation.

DNA Profiling connecting the appellants with the commission of offence of rape and murder.

Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 50 CRA No.4/2015

31. It has come in evidence that the blood samples from the appellants were obtained by the doctors during investigation in presence of the Executive Magistrate. Samples were obtained on gauge and in vials and marked as 'A', 'B', 'C' and 'D' in respect of appellants Azher, Mohd. Sadiq Mr, Suresh Kumar and Jehangir respectively. These blood samples have been taken vide EXPW 56/2, 56, 57 and 58 in presence of PWs-79, 83, 74-A. These blood samples were forwarded by the Investigating Team to Central Forensic Science Laboratory(CFSL), Chandigarh for examination. Along with these samples, seized trousers belonging to the deceased was also forwarded to the CFSL, Chandigarh for matching DNA. The report of the CFSL, Chandigarh, was received and exhibited before the trial Court as EXPW-88-DNA. PW-85 Dr. Sanjiv, Assistant Director, CFSL, Chandigarh has substantiated and proved the report prepared by him on the basis of DNA examination of the samples. His opinion is reproduced hereunder:-

1. The reference Blood samples of Mr. Suresh Kumar is matching with the stains of shelwar.

2. The reference blood samples of Jehangir Ahmad is also matching with the stains of Shelwar. These two matches are exact matches.

3. The reference blood samples of Azher Mir and Mohammad Sadiq Mir are matching upto 80% with the stains on Shelwar.

PW-85 Dr. Sanjiv was subjected to a lengthy cross-examination and he has stood by what was spoken by him during his examination-in-chief and contained in his opinion/report. Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 51 CRA No.4/2015 31.1. The trial Court has rightly concluded that this circumstance which was fully established by the prosecution was itself good enough to conclude that the appellants alone were the perpetrators of the crime and nobody else. The trial Court has relied upon a judgment of Hon'ble Supreme Court in "Anil @ Anthony Arikswaniy Joseph vs. State of Maharashtra, 2014 (4) SCC 69. Undoubtedly, DNA profiling is state of the art facility that can be used to identify individuals on the basis of their unique genetic makeup. While the people may share same eyes, hair, colour and may have similar facial features but they will not have same DNA. This means the process of matching of DNA is useful for more accurately solving the crimes, which are committed in secrecy and do not have any eye witness account.

31.2. We are aware that matching of DNA of the suspect and the DNA found on the crime scene is not conclusive evidence, however, when such evidence is considered in light of other circumstantial evidence on record, it does provide a definite beacon light to reach the perpetrators of the crime. Indisputably, the evidence of experts is admissible in evidence in terms of Section 45 of the Evidence Act and a DNA report prepared and proved by the expert deserves to be accepted unless it is absolutely dented by establishing that there had been no quality control and quality assurance. If the sampling is proper and there is no evidence as to the tempering of samples, the DNA test report is to be accepted. Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 52 CRA No.4/2015

32. For the foregoing reasons and the discussion made herein above by us as well as the detailed analysis done and regard being had to the reasoning given by the trial Court, we are convinced that the aforesaid circumstances appearing against the appellants are firmly established by the prosecution by leading evidence which is cogent, consistent and trustworthy. The circumstances proved by the prosecution make a complete chain of circumstances and clearly established the guilt of the appellants beyond reasonable doubt that the appellants committed the offences without any possibility of an alternative. The facts which are established through circumstantial evidence are conclusive in nature and tendency and exclude all other hypothesis or circumstances from happening, except the one which is consistent with the guilt of the appellants.

33. We, therefore, uphold the judgment of the trial Court and consequently the conviction of the appellants for the commission of offences punishable under Section 341/34, 363/34, 302/34 & 376(2)(g) of the Ranbir Penal Code.

34. Having upheld the judgment of conviction passed by the trial Court, we now proceed to tread on rather uncertain path i.e. examination of the order of the trial Court sentencing the appellants to death for commission of offence punishable under Section 302/34 RPC. The area, we are called upon to embark upon, is little blurred and hazy more particularly when there are Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 53 CRA No.4/2015 no sentencing guidelines framed by the legislatures or prescribed through judicial pronouncements. There are several judgments on the point which of course serve as guidelines to determine the quantum of sentence that is required to be imposed for commission of a particular offence having regard to the different factors, both aggravating and mitigating.

35. Death sentence, as is trite law, is imposed only in rarest of the rare cases. What would be the 'rarest of the rare cases' would turn on the facts and circumstances of each case and the other aggravating as well as mitigating circumstances in a particular case.

36. Despite there being guidelines issued by the Supreme Court through its pronouncements from time to time, the area continues to remain blurred. The trial Court having imposing death penalty on the persons convicted for heinous offences attracting death sentence, is more of subjective than objective in nature.

37. Relevant circumstances which are required to be taken into consideration in this case can be summarized as under:-

37.1. Aggravating circumstances, as projected by learned counsel for the State:-

i) A minor girl aged 14 years, who was going from school to her home was kidnapped, raped and murdered by the four persons taking the benefit that she was all alone walking on the road.

Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 54 CRA No.4/2015

ii) That the deceased was gang raped by four persons. It has come in the evidence that the brave girl put up resistance, which is evident from the bruises, marks and other injuries received by the appellants.

iii) That after committing rape and with a view to eliminate evidence, the appellants committed her murder by slitting her neck by use of a knife.

iv) That the appellants are of young age having criminal record.

37.2. Mitigating circumstances, as projected by learned counsel for the appellants:-

i) That the entire case is built on circumstantial evidence.

Nobody has witnessed the commission of crime by the appellants. Human error in making the judgment, even on the basis of proved circumstances, cannot be completely ruled out.

ii) That the manner in which the crime is committed does not bring the case on hand within 'rarest of the rare cases' category, which would entail penalty of death.

iii) That three of the appellants were below the age of 30 whereas one of the appellant, namely, Suresh Kumar was 50 years old and was a married person having six children. There is no past criminal record or conviction of the appellants. There is only information by the prosecution witness with regard to pendency of criminal case against appellant Mohd. Sadiq Mir and Azher, however, no such evidence was led on this aspect. Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 55 CRA No.4/2015

iv) That the appellants are in custody for the last about 17 years and therefore, have been sufficiently punished for the crime they have committed.

38. Having heard learned counsel for the parties and perused the material on record including the aggravating and mitigating circumstances projected by the learned counsel appearing for the respective parties, we are of the considered opinion that the instant case does not fall within 'rarest of the rare cases' as would entail death penalty. We are holding so for the reasons we shall discuss little later.

39. So far as legal position on death penalty is concerned, a Constitution Bench of Hon'ble the Supreme in Bachan Singh v. State of Punjab (1980) 2 SCC 684, by majority, while repelling the challenge to the constitutionality of the death penalty envisaged under Section 302 IPC laid down a broader framework delineating guidelines on the point. The judgment in Bachan Singh is locus classicus on the desirability of imposing death penalty or otherwise and is marked as watershed moment in the history of sentencing jurisprudence in India. The judgment was pronounced after introduction of Section 354(3) in the Code of Criminal Procedure 1973, though a similar provision in the J&K Cr.P.C Svt. 1989 is conspicuously missing.

40. Section 354(3) of the Central Code mandated giving of special reasons for imposition of death penalty instead of life Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 56 CRA No.4/2015 imprisonment for offence of murder punishable under Section 302 IPC. As is summed up by the Supreme Court in the latter case of Santosh Kumar v. State of Maharashtra, (2009) 6 SCC 498, three broad values have been culled out from Bachan Singh (supra):-

      i)     Individualized sentencing;

      ii)    Threshold of rarest of rare; and

      iii)   Principled sentencing.

In Santosh Kumar Hon'ble the Supreme Court has discussed at great length these three broad values. For facility of reference, para 45 to 109 are set out below:-

"45. There are three broad values emerging from Bachan Singh (supra):

1. INDIVIDUALIZED SENTENCING

46. For an effective compliance of sentencing procedure under section 354(3) and section 235(2) Cr.P.C, sufficient discretion is a pre-condition. Strict channeling of discretion would also go against the founding principles of sentencing as it will prevent the sentencing court to identify and weigh various factors relating to the crime and the criminal such as culpability, impact on the society, gravity of offence, motive behind the crime etc. Bachan Singh (supra) also holds the same view.

47. It was held in Bachan Singh (supra) that:

"173. Thirdly, a standardisation of the sentencing process which leaves little room for judicial discretion to take account of variations in culpability within single-offence category ceases to be judicial. It tends to sacrifice justice at the altar of blind uniformity. Indeed, there is a real danger of such mechanical standardisation degenerating into a bed of procrustean cruelty.

174. Fourthly, standardisation or sentencing discretion is a policy matter which belongs to the sphere of legislation. When Parliament as a matter of sound legislative policy, did not deliberately restrict, control or standardise the sentencing discretion any further than that is encompassed by the broad contours delineated in Section 354(3), the court would not by overleaping its bounds rush to do what Parliament, in its wisdom, warily did not do."

48. The court while discussing Furman v. Georgia, 408 U.S. 238 (1971) in this regard held the following:

Mohammad Altaf Bhat

I attest to the accuracy and authenticity of this document 17.10.2024 14:47 57 CRA No.4/2015

"192. It appears to us that in Gregg v. Georgia and the companion cases, the Supreme Court of U.S.A. was obliged to read down the requirements of Furman and to accept these broadly worded, loose- ended and not-all-inclusive `standards' because in the area of sentencing discretion, if it was to retain its judicial character, exhaustive standardisation or perfect regulation was neither feasible nor desirable."

49. In this context, Saibanna v. State of Karnataka (2005) 4 SCC 165 makes an interesting reading. The accused therein was a life convict. While on parole, he committed murder of his wife and daughter. This Court sentenced him to death on a reasoning, which effectively made death punishment mandatory for the category of offenders serving life sentence, opining:

"17....A prisoner sentenced to life imprisonment is bound to serve the remainder of his life in prison unless the sentence is commuted or remitted and that such sentence could not be equated with any fixed term. (See Gopal Vinayak Godse vs. State of Maharashtra(1961) 3 SCR 440. If that be so, there could be no imposition of a second life term on the appellant before us as it would be a meaningless exercise.

18. In the teeth of Section 427(2) of the Code of Criminal Procedure, 1973 it is doubtful whether a person already undergoing sentence of imprisonment for life can be visited with another term of imprisonment for life to run consecutively with the previous one."

50. Mandatory death punishment (prescribed under section 303 of Indian Penal Code) was stuck down as unconstitutional by this court in Mithu v. State of Punjab AIR 1983 SC 473. This court observed:

"...If the law provides a mandatory sentence of death as Section 303 of the Penal Code does, neither Section 235(2) nor Section 354(3) of the Code of Criminal Procedure can possibly come into play. If the court has no option save to impose the sentence of death, it is meaningless to hear the accused on the question of sentence and it becomes superfluous to state the reasons for imposing the sentence of death. The blatant reason for imposing the sentence of death in such a case is that the law compels the court to impose that sentence. The ratio of Bachan Singh, therefore, is that, death sentence is Constitutional if it is prescribed as an alternative sentence for the offence of murder and if the normal sentence prescribed by law for murder is imprisonment for life."

51. Justice O. Chinnappa Reddy, J. in his concurring opinion agreed with the majority opinion and observed:

"25. Judged in the light shed by Maneka Gandhi and Bachan Singh, it is impossible to uphold Section 303 as valid. Section 303 excludes judicial discretion. The scales of justice are removed from the hands of the Judge so soon as he pronounces the accused guilty of the offence. So final, so irrevocable and so irrestitutable [sic irresuscitable] is the sentence of death that no law which provides for it without involvement of the judicial mind can be said to be fair, just Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 58 CRA No.4/2015 and reasonable. Such a law must necessarily be stigmatised as arbitrary and oppressive. Section 303 is such a law and it must go the way of all bad laws. I agree with my Lord Chief Justice that Section 303, Indian Penal Code, must be struck down as unconstitutional."

(See also Reyes v. R. (2002) UKPC 11 : 12 BHRC 219, Hughes, R. v. (Saint Lucia) (2002) UKPC 12, Fox v. The Queen (2002) 2 AC 284,Bowe v. The Queen (2006) 1 WLR 1623 and Coard & Ors. v.. The Attorney General (Grenada), (2007) UKPC 7.

52. Saibanna v. State of Karnataka, (2005) 4 SCC 165 to that extent is consistent with Mithu (supra) add Bachan Singh (supra).

2. THRESHOLD OF RAREST OF RARE 2(A). Sentencing Procedure

53. The analytical tangle relating to sentencing procedure deserves some attention here. Sentencing procedure deserves an articulate and judicial administration. In this regard, all courts are equally responsible. Sentencing process should be so complied with, that enough information is generated to objectively inform the selection of penalty. The selection of penalty must not require a judge to reflect on his/her personal perception of crime.

54. In Swamy Shraddananda @ Murali Manohar Mishra v. State of Karantaka 2008 (10) SCALE 669, the court notes that the awarding of sentence of death "depends a good deal on the personal predilection of the judges constituting the bench." This is a serious admission on the part of this court. In so far as this aspect is considered, there is inconsistency in how Bachan Singh (supra) has been implemented, as Bachan Singh (supra) mandated principled sentencing and not judge centric sentencing. There are two sides of the debate. It is accepted that rarest of rare case is to be determined in the facts and circumstance of a given case and there is no hard and fast rule for that purpose. There are no strict guidelines. But a sentencing procedure is suggested. This procedure is in the nature of safeguards and has an overarching embrace of rarest of rare dictum. Therefore, it is to be read with Article 21 and 14.

Pre-sentence Hearing and "Special Reasons"

55. Under section 235(2) and 354 (3) of the Criminal Procedure Code, there is a mandate as to a full-fledged bifurcated hearing and recording of "special reasons" if the court inclines to award death penalty. In the specific backdrop of sentencing in capital punishment, and that the matter attracts constitutional prescription in full force, it is incumbent on the sentencing court to oversee comprehensive compliance to both the provisions. A scrupulous compliance of both provisions is necessary such that an informed selection of sentence could be based on the information collected and collated at this stage. Please see Santa Singh v. State of Punjab, AIR 1956 SC 526, Malkiat Singh and Ors. v. State of Punjab, (1991)4SCC341, Allaudin Mian v. State of Bihar, AIR 1989 SC 1456, Muniappan v. State of Tamil Nadu, ( 1981 ) 3 SCC 11, Jumman Khan v. State of U.P, Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 59 CRA No.4/2015 (1991)1SCC752, Anshad and Ors. v. State of Karnataka, [(1994)4SCC381] on this.

Nature of Information to be Collated at Pre-sentence Hearing

56. At this stage, Bachan Singh (supra) informs the content of the sentencing hearing. The court must play a proactive role to record all relevant information at his stage. Some of the information relating to crime can be culled out from the phase prior to sentencing hearing. This information would include aspects relating to the nature, motive and impact of crime, culpability of convict etc. Quality of evidence adduced is also a relevant factor. For instance, extent of reliance on circumstantial evidence or child witness plays an important role in the sentencing analysis. But what is sorely lacking, in most capital sentencing cases, is information relating to characteristics and socio- economic background of the offender. This issue was also raised in the 48th report of the Law Commission.

57. Circumstances which may not have been pertinent in conviction can also play an important role in the selection of sentence. Objective analysis of the probability that the accused can be reformed and rehabilitated can be one such illustration. In this context, guideline no. 4 in the list of Mitigating Circumstances as borne out by Bachan Singh (supra) is relevant. The court held:

"206. (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."

In fine, Bachan Singh (supra) mandated identification of aggravating and mitigating circumstance relating to crime and the convict to be collected in the sentencing hearing.

2(B) Nature of Content of Rarest of rare Dictum

58. The rarest of rare dictum breathes life in "special reasons" under section 354(3). In this context, Bachan Singh (supra) laid down a fundamental threshold in the following terms:

"209. ........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."

An analytical reading of this formulation would reveal it to be an authoritative negative precept. "Rarest of rare cases" is an exceptionally narrow opening provided in the domain of this negative precept. This opening is also qualified by another condition in form of "when the alternative option is unquestionably foreclosed".

59. Thus, in essence, rarest of rare dictum imposes a wide- ranging embargo on award of death punishment, which can only be revoked if the facts of the case successfully satisfy double qualification enumerated below: Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 60 CRA No.4/2015

1. that the case belongs to the rarest of rare category

2. and the alternative option of life imprisonment will just not suffice in the facts of the case.

60. The rarest of rare dictum serves as a guideline in enforcing section 354(3) and entrenches the policy that life imprisonment is the rule and death punishment is an exception. It is a settled law of interpretation that exceptions are to be construed narrowly. That being the case, the rarest of rare dictum places an extraordinary burden on the court, in case it selects death punishment as the favoured penalty, to carry out an objective assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum.

61. The background analysis leading to the conclusion that the case belongs to rarest of rare category must conform to highest standards of judicial rigor and thoroughness as the norm under analysis is an exceptionally narrow exception. A conclusion as to the rarest of rare aspect with respect to a matter shall entail identification of aggravating and mitigating circumstances relating both to the crime and the criminal. It was in this context noted:

"161. ........The expression "special reasons" in the context of this provision, obviously means "exceptional reasons" founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal"

62. Curiously in Ravji alias Ram Chandra v. State of Rajasthan, (1996) 2 SCC 175 this court held that it is only characteristics relating to crime, to the exclusion of the ones relating to criminal, which are relevant to sentencing in criminal trial, stating:

"24. ...The crimes had been committed with utmost cruelty and brutality without any provocation, in a calculated manner. It is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal"..."

63. We are not oblivious that Ravji case has been followed in at least six decisions of this court in which death punishment has been awarded in last 9 years, but, in our opinion, it was rendered per incuriam. Bachan Singh (supra) specifically noted the following on this point:

Mohammad Altaf Bhat

I attest to the accuracy and authenticity of this document 17.10.2024 14:47 61 CRA No.4/2015

"163...The present legislative policy discernible from Section 235(2) read with Section 354(3) is that in fixing the degree of punishment or making the choice of sentence for various offences, including one under Section 302 of the Penal Code, the court should not confine its consideration "principally "or merely to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal"

Shivaji @ Dadya Shankar Alhat v. The State of Maharashtra, AIR2009SC56, Mohan Anna Chavan v. State of Maharashtra(2008)11SCC113, Bantu v. The State of U.P., (2008)11SCC113, Surja Ram v. State of Rajasthan, (1996)6SCC271], Dayanidhi Bisoi v. State of Orissa, (2003)9SCC310, State of U.P. v. Sattan @ Satyendra and Ors., 2009(3)SCALE394 are the decisions where Ravji Rao (supra) has been followed. It does not appear that this court has considered any mitigating circumstance or a circumstance relating to criminal at the sentencing phase in most of these cases. It is apparent that Ravji Rao (supra) has not only been considered but also relied upon as authority on the point that in heinous crimes, circumstances relating to criminal are not pertinent.

2(C) Alternative Option is foreclosed

64.Another aspect of rarest of rare doctrine which needs serious consideration is interpretation of latter part of the dictum - "that ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed." Bachan Singh (supra) suggested selection of death punishment as the penalty of last resort when, alternative punishment of life imprisonment will be futile and serves no purpose.

65. Death punishment, as will be discussed in detail a little later, qualitatively stands on a very different footing from other types of punishments. It is unique in its total irrevocability. Incarceration, life or otherwise, potentially serves more than one sentencing aims. Deterrence, incapacitation, rehabilitation and retribution -all ends are capable to be furthered in different degrees, by calibrating this punishment in light of the overarching penal policy. But the same does not hold true for the death penalty. It is unique in its absolute rejection of the potential of convict to rehabilitate and reform. It extinguishes life and thereby terminates the being, therefore puts an end anything to do with the life. This is the big difference between two punishments. Before imposing death penalty, therefore, it is imperative to consider the same.

66. Rarest of rare dictum, as discussed above, hints at this difference between death punishment and the alternative punishment of life imprisonment. The relevant question here would be to determine whether life imprisonment as a punishment will be pointless and completely devoid of reason in the facts and circumstances of the case? As discussed above, life imprisonment can be said to be completely Mohammad Altaf futile, Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 62 CRA No.4/2015 only when the sentencing aim of reformation can be said to be unachievable. Therefore, for satisfying the second exception to the rarest of rare doctrine, the court will have to provide clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme. This analysis can only be done with rigor when the court focuses on the circumstances relating to the criminal, along with other circumstances. This is not an easy conclusion to be deciphered, but Bachan Singh (supra) sets the bar very high by introduction of Rarest of rare doctrine.

67. In Panchhi v. State of U.P., (1998) 7 SCC 177, this Court also elucidates on "when the alternative option is foreclosed"

benchmark in the following terms:

16. When the Constitution Bench of this Court, by a majority, upheld the constitutional validity of death sentence in Bachan Singh v. State of Punjab this Court took particular care to say that death sentence shall not normally be awarded for the offence of murder and that it must be confined to the rarest of rare cases when the alternative option is foreclosed. In other words, the Constitution Bench did not find death sentence valid in all cases except in the aforesaid freaks wherein the lesser sentence would be, by any account, wholly inadequate. In Machhi Singh v. State of Punjab a three-

Judge Bench of this Court while following the ratio in Bachan Singh case laid down certain guidelines among which the following is relevant in the present case: (SCC p. 489, para 38) "(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 a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised."

68. In Bachan Singh (supra), it was stated:

"206. Dr Chitale 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. If 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. (5) That in the Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 63 CRA No.4/2015 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 impaired 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." 2(D) Role and Responsibility of Courts

69. Bachan Singh (supra) while enunciating rarest of rare doctrine, did not deal with the role and responsibility of sentencing court and the appellate court separately. For that matter, this court did not specify any review standards for High Court and the Supreme Court. In that event, all courts, be it trial court, High Court or this court, are duty bound to ensure that the ratio laid down therein is scrupulously followed. Same standard of rigor and fairness are to be followed by the courts. If anything, inverse pyramid of responsibility is applicable in death penalty cases.

70. In State of Maharashtra v. Sindhi, (1975) 1 SCC 647 this Court reiterated, with emphasis, that while dealing with a reference for confirmation of a sentence of death, the High Court must consider the proceedings in all their aspects, reappraise, reassess and reconsider the entire facts and law and, if necessary, after taking additional evidence, come to its own conclusions on the material on record in regard to the conviction of the accused (and the sentence) independently of the view expressed by the Sessions Judge.

2(E) Sentencing Justifications in Heinous Crimes

71. It has been observed, generally and more specifically in the context of death punishment, that sentencing is the biggest casualty in crimes of brutal and heinous nature. Our capital sentencing jurisprudence is thin in the sense that there is very little objective discussion on aggravating and mitigating circumstances. In most such cases, courts have only been considering the brutality of crime index. There may be other factors which may not have been recorded.

72. We must also point out, in this context, that there is no consensus in the court on the use of "social necessity" as a sole justification in death punishment matters. The test which emanates from Bachan Singh (supra) in clear terms is that the courts must engage in an analysis of aggravating and mitigating circumstances with an open mind, relating both to crime and the criminal, irrespective of the gravity or nature of crime under consideration. A dispassionate analysis, on the aforementioned counts, is a must. The courts while adjudging Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 64 CRA No.4/2015 on life and death must ensure that rigor and fairness are given primacy over sentiments and emotions.

73. In Panchhi (supra), the court downplayed the heinous nature of crime and relied on mitigating circumstances in the final opinion. The court held:

"20. We have extracted the above reasons of the two courts only to point out that it is the savagery or brutal manner in which the killers perpetrated the acts on the victims including one little child which had persuaded the two courts to choose death sentence for the four persons. No doubt brutality looms large in the murders in this case particularly of the old and also the tender- aged child. It may be that the manner in which the killings were perpetrated may not by itself show any lighter side but that is not very peculiar or very special in these killings. Brutality of the manner in which a murder was perpetrated may be a ground but not the sole criterion for judging whether the case is one of the "rarest of rare cases" as indicated in Bachan Singh case. In a way, every murder is brutal, and the difference between one from the other may be on account of mitigating or aggravating features surrounding the murder."

74. In Vashram Narshibhai Rajpara v. State of Gujarat (2002) 9 SCC 168, this court relied on the dictum of Panchhi and further explained the approach:

"9. ....As to what category a particular case would fall depends, invariably on varying facts of each case and no absolute rule for invariable application or yardstick as a ready reckoner can be formulated. In Panchhi v. State of U.P. it has been observed that the brutality of the manner in which the murder was perpetrated may not be the sole ground for judging whether the case is one of the "rarest of rare cases", as indicated in Bachan Singh v. State of Punjab and that every murder being per se brutal, the distinguishing factors should really be the mitigating or aggravating features surrounding the murder. The intensity of bitterness, which prevailed, and the escalation of simmering thoughts into a thirst for revenge or retaliation were held to be also a relevant factor."

75. This court also gave primacy to mitigating circumstances in the final analysis:

"10. Considering the facts of the case presented before us, it is on evidence that despite his economic condition and earnest attempt to purchase a house for the family after raising loans, the wife and daughters were stated to be not pleased and were engaging in quarrels constantly with the appellant. Though they were all living together the continuous harassment and constant nagging could have very well affected his mental balance and such sustained provocation could Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 65 CRA No.4/2015 have reached a boiling point resulting in the dastardly act. As noticed even by the High Court the appellant though hailing from a poor family had no criminal background and it could not be reasonably postulated that he will not get rehabilitated or that he would be a menace to the society. The boy of tender age would also once for all be deprived of the parental protection. Keeping in view all these aspects, in our view, it could not be said that the imposition of life imprisonment would not adequately meet the requirements of the case or that only an imposition of the extreme punishment alone would do real or effective justice. Consequently, we direct the modification of the sentence of death into one of rigorous imprisonment for life, by partly allowing the appeal to that extent. In other respects the appeal shall stand dismissed. The appellant shall undergo the remaining period of sentence as above."

76. In Om Prakash v. State of Haryana, (1999) 3 SCC 19, K.T. Thomas, J. deliberated on the apparent tension between responding to "cry of the society" and meeting the Bachan Singh (supra) dictum of balancing the "mitigating and aggravating circumstances". The court was of the view that the sentencing court is bound by Bachan Singh (supra) and not in specific terms to the incoherent and fluid responses of society:

7. It is true that court must respond to the cry of the society and to settle what would be a deterrent punishment for an abominable crime. It is equally true that a large number of criminals go unpunished thereby increasing criminals in the society and law losing its deterrent effect. It is also a truism as observed in the case of State of M.P. v. Shyamsunder Trivedi [SCC at p.273] that the exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact situation and the peculiar circumstances of a given case often results in miscarriage of justice and makes the justice delivery system a suspect; in the ultimate analysis, the society suffers and a criminal gets encouraged. Sometimes it is stated that only rights of the criminals are kept in mind, the victims are forgotten. Despite this it should be kept in mind that while imposing the rarest of rare punishment, i.e., death penalty, the court must balance the mitigating and aggravating circumstances of the crime and it would depend upon particular and peculiar facts and circumstances of each case."

77. In Dharmendrasinh v. State of Gujarat, (2002) 4 SCC 679, the court acknowledged that the crime committed was "no doubt heinous and unpardonable" and that two innocent children lost their lives for no fault of their, but the court chose to give force to mitigating circumstances in the following terms:

Mohammad Altaf Bhat

I attest to the accuracy and authenticity of this document 17.10.2024 14:47 66 CRA No.4/2015

"21. ......The offence was obviously not committed for lust of power or otherwise or with a view to grab any property nor in pursuance of any organized criminal or anti-social activity. Chances of repetition of such criminal acts at his hands making the society further vulnerable are also not apparent. He had no previous criminal record."

78. The court also stated the law in the following terms:

"20. Every murder is a heinous crime. Apart from personal implications, it is also a crime against the society but in every case of murder death penalty is not to be awarded. Under the present legal position, imprisonment for life is the normal rule for punishing crime of murder and sentence of death, as held in different cases referred to above, would be awarded only in the rarest of rare cases. A number of factors are to be taken into account namely, the motive of the crime, the manner of the assault, the impact of the crime on the society as a whole, the personality of the accused, circumstances and facts of the case as to whether the crime committed, has been committed for satisfying any kind of lust, greed or in pursuance of anti-social activity or by way of organized crime, drug trafficking or the like. Chances of inflicting the society with a similar criminal act that is to say vulnerability of the members of the society at the hands of the accused in future and ultimately as held in several cases, mitigating and aggravating circumstances of each case have to be considered and a balance has to be struck. The learned State counsel as indicated earlier has already indicated the aggravating circumstances by reason of which it has been vehemently urged that sentence of death deserves to be confirmed."

79. Whether primacy should be accorded to aggravating circumstances or mitigating circumstances is not the question. Court is duty bound by virtue of Bachan Singh (supra) to equally consider both and then to arrive at a conclusion as to respective weights to be accorded. We are also bound by the spirit of Article 14 and Article 21 which forces us to adopt a principled approach to sentencing. This overarching policy flowing from Bachan Singh (supra) applies to heinous crimes as much as it applies to relatively less brutal murders. The court in this regard held:

"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 Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 67 CRA No.4/2015 us, will discharge the onerous function with evermore 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."

2 (F). Public Opinion in Capital Sentencing

80. It is also to be pointed out that public opinion is difficult to fit in the rarest of rare matrix. People's perception of crime is neither an objective circumstance relating to crime nor to the criminal. Perception of public is extraneous to conviction as also sentencing, at least in capital sentencing according to the mandate of Bachan Singh (supra).

81. Rarest of rare policy and legislative policy on death punishment may not be essentially tuned to public opinion. Even if presume that the general populace favours a liberal DP policy, although there is no evidence to this effect, we cannot take note of it. We are governed by the dictum of Bachan Singh (supra) according to which life imprisonment is the rule and death punishment is an exception.

82. We are also governed by the Constitution of India. Article 14 and 21 are constitutional safeguards and define the framework for state in its functions, including penal functions. They introduce values of institutional propriety, in terms of fairness, reasonableness and equal treatment challenge with respect to procedure to be invoked by the state in its dealings with people in various capacities, including as a convict. The position is, if the state is precariously placed to administer a policy within the confines of Article 21 and 14, it should be applied most sparingly. This view flows from Bachan Singh (supra) and it this light, we are afraid that Constitution does not permit us to take a re-look on the capital punishment policy and meet society's cry for justice through this instrument.

83. The fact that we are here dealing with safeguards entrenched in the Constitution should materially change the way we look for reasons while awarding the death punishment. The arguments which may be relevant for sentencing with respect to various other punishments may cease to apply in light of the constitutional safeguards which come into operation when the question relates to extinguishment of life. If there are two considerations, the one which has a constitutional origin shall be favoured.

84. An inherent problem with consideration of public opinion is its inarticulate state. Bachan Singh (supra) noted that judges are ill-equipped to capture public opinion:

"126. Incidentally, the rejection by the people of the approach adopted by the two learned Judges in Furman, furnishes proof of the fact that judicial opinion does not necessarily reflect the moral attitudes of the people. At Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 68 CRA No.4/2015 the same time, it is a reminder that Judges should not take upon themselves the responsibility of becoming oracles or spokesmen of public opinion: Not being representatives of the people, it is often better, as a matter of judicial restraint, to leave the function of assessing public opinion to the chosen representatives of the people in the legislature concerned...."

* * * * *

175........The highest judicial duty is to recognise the limits on judicial power and to permit the democratic processes to deal with matters falling outside of those limits." As Judges, we have to resist the temptation to substitute our own value choices for the will of the people. Since substituted. judicial "made-to-order* standards, howsoever painstakingly made, do not bear the people's imprimatur, they may not have the same authenticity and efficacy as the silent zones and green belts designedly marked out and left open by Parliament in its legislative planning for fair- play of judicial discretion to take care of the variable, unpredictable circumstances of the individual cases, relevant to individualised sentencing. When Judges, acting individually or collectively, in their benign anxiety to do what they think is morally good for the people, take upon themselves the responsibility of setting; down social norms of conduct, there is every danger, despite their effort to make a rational guess of the notions of right and wrong prevailing in the community at large and despite their intention to abide by the dictates of mere reason, that they might write their own peculiar view or personal predilection into the law, sincerely mistaking that changeling for what they perceive to be the Community ethic. The perception of 'community' standards or ethics may vary from Judge to Judge.."

85. Powell, J.'s dissent in Furman (supra) also bears repetition in this regard:

"But however one may assess amorphous ebb and flow of public opinion generally on this volatile issue, this type of inquiry lies at the periphery not the core of the judicial process in constitutional cases. The assessment of popular opinion is essentially a legislative, and not a judicial, function."

86. The constitutional role of the judiciary also mandates taking a perspective on individual rights at a higher pedestal than majoritarian aspirations. To that extent we play a counter majoritarian role. And this part of debate is not only relevant in the annals of judicial review, but also to criminal jurisprudence. Justice Jackson in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) also opined on similar lines:

Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 69 CRA No.4/2015

"The very purpose of a bill of rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."

87. Public Opinion may also run counter to the Rule of law and constitutionalism. Bhagalpur Blinding case or the recent spate of attacks on right to trial of the accused in the Bombay Blast Case are recent examples. We are also not oblivious to the danger of capital sentencing becoming a spectacle in media. If media trial is a possibility, sentencing by media cannot be ruled out.

88. Andrew Ashworth, a leading academic in the field of sentencing, who has been at the center of sentencing reforms in U.K., educates us of the problems in factoring in public opinion in the sentencing. He (with Michael Hough), observes in an article, Sentencing and the Climate of Opinion (1996, Criminal Law Review):

"The views of sentencing held by people outside the criminal justice system-- "the general public"--will always be important even if they should not be determinative in court. Unfortunately, the concept of public opinion in relation to sentencing practices is often employed in a superficial or simplistic way. In this short article we have identified two major difficulties with the use of the concept. First, members of the public have insufficient knowledge of actual sentencing practices. Second, there is a significant but much-neglected distinction between people's sweeping impressions of sentencing and their views in relation to particular cases of which they know the facts. When it is proclaimed that the public think the courts are too lenient, both these difficulties are usually suppressed. To construct sentencing policy on this flawed and partial notion of public opinion is irresponsible. Certainly, the argument is hard to resist that public confidence in the law must be maintained. It is also hard to resist the proposition that public confidence in sentencing is low and probably falling. However, since the causes of this lie not in sentencing practice but in misinformation and misunderstanding, and (arguably) in factors only distantly related to criminal justice, ratcheting up the sentencing tariff is hardly a rational way of regaining public confidence.

This is not to deny that there is political capital to be made, at least in the short term, by espousing sentencing policies which have the trappings of tough, decisive action. However, the underlying source of public cynicism will not have been Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 70 CRA No.4/2015 addressed; and once politicians embark on this route, they may be committing themselves long-term to a treadmill of toughness, "decisiveness", and high public expenditure. The political costs of withdrawing from tough policies, once embarked on, may be too high for politicians of any hue to contemplate. The United States serves as an example.

If the source of falling public confidence in sentencing lies in lack of knowledge and understanding, the obvious corrective policy is to explain and to educate, rather than to adapt sentencing policy to fit a flawed conception of public opinion. But who should be the target of such explanation and education? We have serious doubts whether attempts to reach the ordinary citizen directly will have any impact at all. On the other hand, we think it feasible, within limits, to educate those who shape public opinion. Newspaper and television journalists, for example, responded well to the initiatives in the 1980s intended to curb the reporting of crime in ways that needlessly fuelled fear of crime. A similar initiative should now be mounted in relation to sentencing."

89. Capital sentencing is one such field where the safeguards continuously take strength from the Constitution, and on that end we are of the view that public opinion does not have any role to play. In fact, the case where there is overwhelming public opinion favouring death penalty would be an acid test of the constitutional propriety of capital sentencing process.

3. PRINCIPLED SENTENCING 3(A). Mandate of Bachan Singh (supra) on Value of Precedents

90. This court laid down rarest of rare dictum in Bachan Singh case (supra) and thereby endorsed a broad sentencing threshold. It has been interpreted by courts in various ways. It is important to note here that principled application of rarest of rare dictum does not come in the way of individualized sentencing. With necessary room for sentencing, consistency has to be achieved in the manner in which rarest of rare dictum has to be applied by courts.

91. Bachan Singh (supra) expressly barred one time enunciation of minute guidelines through a judicial verdict. The court held that only executive is competent to bring in detailed guidelines to regulate discretion. On this count judicial restraint was advocated. But at the same time, it actively relied on judicial precedent in disciplining sentencing discretion to repel the argument of arbitrariness and Article 14 challenge. An embargo on introduction of judicial guidelines was put therein but organic evolution ofset of principles on sentencing through judicial pronouncements was not ruled out. This is how precedent aids development of law in any branch of law and capital sentencing cannot be an exception to this. Sentencing discretion is also a kind of Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 71 CRA No.4/2015 discretion and is shall be exercised judicially in light of the precedents.

92. Bachan Singh (supra) observes that the superior courts must correct wrong application of section 302. It is very obvious that appellate courts cannot discharge review function without taking aid of established principles. In Jagmohan Singh v. State of U.P., [(1973) 1 SCC 20], the Court's observation in this context was subsequently followed noting:

"...The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the judges with a very wide discretion in the matter of fixing the degree of punishment. The discretion in the matter of sentence is, as already pointed out, liable to be corrected by superior courts. Laying down of standards to the limited extent possible as was done in the Model Judicial Code would not serve the purpose. The exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguards for the accused."

93. Bachan Singh (supra) elaborated on "well recognized principles" in the following terms:

"197. In Jagmohan, this Court had held that this sentencing discretion is to be exercised judicially on well recognised principles, after balancing all the aggravating and mitigating circumstances of the crime. By "well recognised principles" the court obviously meant the principles crystallised by judicial decisions illustrating as to what were regarded as aggravating or mitigating circumstances in those cases. The legislative changes since Jagmohan -- as we have discussed already -- do not have the effect of abrogating or nullifying those principles. The only effect is that the application of those principles is now to be guided by the paramount beacons of legislative policy discernible from Sections 354(3) and 235(2), namely: (1) The extreme penalty can be inflicted only in gravest cases of extreme culpability; (2) In making choice of the sentence, in addition to the circumstances, of the offence, due regard must be paid to the circumstances of the offender, also."

It continuing in the same vein held:

"165. ......Cognizant of the past experience of the administration of death penalty in India, Parliament, in its wisdom, thought it best and safe to leave the imposition of this gravest punishment in gravest cases of murder, to the judicial discretion of the courts which are manned by persons of reason, experience and standing in the profession. The exercise of this sentencing discretion cannot be said to be untrammelled and unguided. It is exercised judicially in accordance with well recognised principles crystallised by judicial decisions, directed along the Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 72 CRA No.4/2015 broad contours of legislative policy towards the signposts enacted in Section 354(3)."

3(B) Cases Where Death Penalty Was Imposed/Affirmed

94. In Ram Singh v. Sonia and Ors. 2007 (3) SCALE 106, the accused couple had, in a most diabolic manner, ended the lives of their family members, which included the step brother of the wife, his children and even her own father, mother and sister, all with the motive of inheriting the family property. This Court noting the cold blooded and pre meditated approach in murdering the family while they were all sleeping considered it as a fit case for the imposition of death penalty on the couple.

95. In Prajeet Kumar Singh v. State of Bihar 2008 (4) SCALE 442 the accused had murdered the children of the family where he had been staying as a tenant for the past four years, while they were sleeping. He thereafter proceeded to attack the adult members of the family who on hearing the screams of their children had come to their rescue. The court noting the brutality of manner of the attack considered it a fit case for the imposition of death sentence.

96. In Mohan Anna Chavan (supra) the court upheld the death sentence imposed on a serial rapist. The accused had already been convicted twice for the raping a minor girl, but on the first occasion he was awarded a sentence only of two years and on the second, sentence of ten years rigorous imprisonment only. When the accused was convicted of raping and murdering two minor girls again, the court refused to interfere with the death sentence awarded by the lower courts.

97. In Bantu v. State of Uttar Pradesh [2008 (10) SCALE 336] the accused had, after raping a six year old girl, tried to conceal his crime by inserting a stick in her vagina which ultimately resulted in causing her death. The court noted that the depraved acts of the accused only deserved a death sentence.

98. In Shivaji @ Dady Shankar Alhat (supra) the accused had raped and murdered a nine year old girl. This Court therein rejecting the argument that the conviction having been based in circumstantial evidence, death penalty should not be awarded, affirmed the death penalty awarded by the lower court.

99. In State of U.P. v. Sattan, 2009 (3) SCALE 394, six members of a family were murdered by the accused leaving only three survivors over some personal enmity. The trial court awarded them death sentence. The High Court commuted the sentence to one of life imprisonment. The Supreme Court in appeal noting the brutality of murder held that the accused deserved only a death penalty.

3(C) Cases Where Death Penalty was not Awarded/ Affirmed Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 73 CRA No.4/2015

100. In Ujjagar Singh v. State of Punjab, [2007 (14) SCALE 428] the accused had been convicted of murder and rape and accordingly sentenced to death by the lower courts. This Court in appeal, acquitting the accused only of the charge of rape because of the lack of evidence, noted that since the charge of rape formed a substantial portion of reasoning for causing the death, the death sentence on the accused could no longer be sustained, once he was acquitted on that charge. The sentence was accordingly altered to one of life imprisonment.

101. In Amrit Singh v. State of Punjab 2006 (11) SCALE 309 the accused had raped a minor girl. The victim died a painful death because of bleeding from her private parts. The court, however, noted that the accused might not have had the intention of murdering the victim, but her death was only the unfortunate inevitable consequence of the crime, hence it did not fall within the rarest of the rare cases.

102. In Bishnu Prasad Sinha and Anr. v. State of Assam [2007 (2) SCALE 42], this Court commuted the death penalty of the accused on the ground that the prosecution case was entirely based on circumstantial evidence.

103. In State of Maharashtra v. Prakash Sakha Vasave and others, 2009 (1) SCALE 713 the accused had brutally attacked with axes the husband of their sister, who was having an illicit relationship with another woman. The trial court had found two of the accused guilty and sentenced them to death. In appeal the High Court acquitted the accused because of lack of evidence. This Court in appeal set aside the judgment of acquittal passed by the High Court but noticed that the case before it did not fall in the rarest of rare and deserved only a life imprisonment.

3(D) Differing opinion in other cases

104. While dealing with a matter as to whether death penalty should be awarded or not, although the court ordinarily would look to the precedents, but, this becomes extremely difficult, if not impossible, in the context of the cases discussed above. There is no uniformity of precedents, to say the least. In most cases, the death penalty has been affirmed or refused to be affirmed by us, without laying down any legal principle.

105. In Aloke Nath Dutt and ors. v. State of West Bengal, 2006 (13) SCALE 467 this Court after examining various judgments over the past two decades in which the issues of rarest of rare fell for consideration, admitted the failure on the part of this Court to evolve a uniform sentencing policy in capital punishment cases and conclude as to what amounted to `rarest of rare'. Disparity in sentencing has also been noted in Swamy Shraddananda v. State of Karnataka (Swamy Shraddananda (I) (2007) 12 SCC 288.

106. In the aforementioned backdrop, we may notice a recent three-Judge Bench decision of this Court in Swamy Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 74 CRA No.4/2015 Shraddananda @ Murali Manohar Mishra (supra). Aftab Alam, J., writing the judgment for the Three-Judge Bench held:

"51. The truth of the matter is that the question of death penalty is not free from the subjective element and the confirmation of death sentence or its commutation by this Court depends a good deal on the personal predilection of the judges constituting the bench.

52. The inability of the Criminal Justice System to deal with all major crimes equally effectively and the want of uniformity in the sentencing process by the Court lead to a marked imbalance in the end results. On the one hand there appears a small band of cases in which the murder convict is sent to the gallows on confirmation of his death penalty by this Court and on the other hand there is a much wider area of cases in which the offender committing murder of a similar or a far more revolting kind is spared his life due to lack of consistency by the Court in giving punishments or worse the offender is allowed to slip away unpunished on account of the deficiencies in the Criminal Justice System. Thus the overall larger picture gets asymmetric and lop-sided and presents a poor reflection of the system of criminal administration of justice. This situation is matter of concern for this Court and needs to be remedied."

107. The issue of subjectivity has also been previously noticed by both academics and this Court. Professor Anthony R. Blackshield's analysis in the mid 1970s showed this trend in the pre-Bachan Singh period. [see Journal of the Indian Law Institute 1979]. This was also noticed by Bhagwati, J. in his dissenting judgment in Bachan Singh (supra).

108. In the post-Bachan Singh period, a joint report by the Amnesty International - India and People's Union for Civil Liberties Report titled "Lethal Lottery: The Death Penalty in India, A study of Supreme Court Judgments in death penalty cases 1950-2006" and the Swamy Shraddananda (supra) judgment show quite clearly that not much has changed in this respect.

109. To assist future benches at considering the facts of individual cases however, the Constitution Bench in Bachan Singh (supra) did however note certain aggravating and mitigating factors mentioned by the Amicus Curie (drawn from jurisprudence from the USA as also Clauses (2)(a), (b),

(c) and(d) of the already lapsed Indian Penal Code (Amendment) Bill, 1972). The Supreme Court did however endorse them, referring to them as "undoubtedly relevant circumstances and must be given great weight in the determination of sentence".Machhi Singh v. State of Punjab, [ (1983) 3 SCC 470] went further and made a tabular comparison of such mitigating and aggravating circumstances. Yet as the above discussion has clearly shown, it is now clear that even the balance-sheet of aggravating Mohammad and mitigatingAltaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 75 CRA No.4/2015 circumstances approach invoked on a case by case basis has not worked sufficiently well so as to remove the vice of arbitrariness from our capital sentencing system. It can be safely said that the Bachan Singh threshold of "rarest of rare cases "has been most variedly and inconsistently applied by the various High Courts as also this court."

41. It needs no emphasis that the doctrine of "rarest of rare case" was enunciated by the Hon'ble Supreme Court in Bachan Singh's case. Paragraph Nos.197 and 209 refers to this doctrine. In Bachan Singh, Hon'ble the Supreme Court placed reliance upon judgment of Jagmohan Singh v. State of U.P., (1973) 1 SCC 20 to hold that sentencing discretion is required to be exercised judicially on well recognized principles after drawing a balance- sheet of all aggravating and mitigating circumstances of the crime. The well recognized principles for exercise of sentencing discretion would obviously mean those principles which are crystallized by the Hon'ble Supreme Court in various judicial decisions.

42. Section 354(3) and 235(2) of Central Cr.P.C do not have the effect of abrogating or nullifying those principles but only serve as a beacon light for exercise of sentencing discretion. Paragraph Nos.197 and 209 of Bachan Singh (supra) deserve reference at this stage and are reproduced hereunder:-

"197. In Jagmohan, this Court had held that this sentencing discretion is to be exercised judicially on well-recognised principles, after balancing all the aggravating and mitigating circumstances of the crime. By "well-recognised principles" the Court obviously meant the principles crystallized by judicial decisions Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 76 CRA No.4/2015 illustrating as to what were regarded as aggravating or mitigating circumstances in those eases. The legislative changes since Jagmohan-as we have discussed already- do not have the effect of abrogating or nullifying those principles. The only effect is that the application of those principles is now to be guided by the paramount beacons of legislative policy discernible from Sections 354(3) and 235(2), namely : (1) The extreme penalty can be inflicted only in gravest cases of extreme culpability; (2) In making choice of the sentence, in addition to the circumstances of the offence, due regard must be paid to the circumstances of the offender, also."

.....................

......................

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 judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society." Nonetheless, it cannot be over emphasized 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 blood- thirsty. Hedging 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 highroad of legislative policy Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 77 CRA No.4/2015 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."

43. From reading of two paragraphs reproduced herein above, it is abundantly clear that extreme penalty can be inflicted only in gravest cases of extreme culpability and in making choice of the sentence due regard must be paid to the circumstances of the offender, also. Hon'ble Supreme Court in the case of Bachan Singh refused to standardize the extreme circumstances or rarest of the rare circumstances entailing death penalty instead of life imprisonment, however, emphasized that in deciding the case of sentence for commission of murder punishable under Section 302 IPC, imposition of sentence of life imprisonment should be the rule and death penalty an exception.

44. In the case of Machhi Singh and others v. State of Punjab, (1983) 3 SCC 470, a three-Judge Bench while considering the same issue, placed strong reliance upon what was laid down by the Constitution Bench in Bachan Singh and culled out guidelines to be applied while deciding the issue as to whether extreme penalty of death need to be inflicted in the given facts and circumstances of the case. These guidelines/propositions have Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 78 CRA No.4/2015 been taken note in paragraph No.38 and 39 of the judgment, which paragraphs were set out herein below:-

"38. In this background the guidelines indicated in Bachan Singh's case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentences arises. The following propositions emerge from Bachan Singh's case:

(i) the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability;

(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration alongwith the circumstances of the 'crime'.

(iii)Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between 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 ?"

Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 79 CRA No.4/2015

45. On conspectus of all the circumstances emanating in this case and considered in light of the proposition culled out in paragraph No.38 of Machhi Singh, we are of the considered opinion that the following circumstances weigh in favour of not imposing extreme penalty of death in the instant case:-

i) Having regard to the facts and circumstances of the case, we do not find it a 'rarest of rare cases' as is the doctrine enunciated in Bachan Singh and explained in Machhi Singh. Every murder is brutal and dastardly act of the perpetrators of the crime. However, to bring it within the scope of the term "rarest of rare", such murder should be one committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. From the evidence on record, it is evident that initial intention of the appellants was to take benefit of loneliness of the deceased "X" and commit rape upon her. The intention to kill developed on spot when with a view to eliminate the evidence one of them inflicted fatal injury on the neck of the deceased. As has come out from the post-mortem report, the deceased was killed by a single incised slit injury caused by a sharp edged weapon. There was no other injury or wound found on the dead body of the deceased 'X'. We are aware that it is because of the extremely depraved act of the appellants a young life was brought to an end without the deceased being responsible Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 80 CRA No.4/2015 directly or indirectly for such inhuman conduct. However, having regard to all the circumstances under which the crime has been committed and the sentencing guidelines laid down in judicial decisions, we do not find it a case which would come within the purview of rarest of the rare cases doctrine.

ii) All the appellants except appellant-Suresh Kumar were unmarried and below the age of 23 at the time of commission of offence and below the age of 30 years at the time of conviction by the trial Court. The appellant-Suresh Kumar was aged 43 years at the time of commission of crime and 50 years at the time of conviction and was a married person having six children. As is held by the Hon'ble Supreme Court, the age of the convict is also a relevant criteria, which should be taken into consideration while deciding the question as to whether in a given case life imprisonment would meet the ends of justice rather than death penalty.

iii) That none of the appellants have been convicted for any offence, much less a heinous offence. There is oral evidence on record to suggest that there are some cases pending against the appellants-Mohd. Sadiq Mir and Azher Ahmad but such oral statements have not been substantiated by placing on record any material. In the absence of such material, it cannot be said that the appellants have previous Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 81 CRA No.4/2015 bad criminal record that may come in the way of the Court not to exercise the discretion for commuting the death penalty into life imprisonment.

iv) That the convicts are now in jail for 17 years and are on a death row for the last more than 10 years. In the words of Justice Krishna Iyer, brooding horror of hanging which has been haunting the appellants in their condemned cells for the last ten years is a factor, which cannot be ignored by this Court while considering the appropriate sentencing in this case.

v) That the judgment of conviction under consideration rests solely on circumstantial evidence and therefore, is an added reason that we do not favour death penalty in the instant case. We are aware that circumstantial evidence, if it is of impeccable nature admitting no hypothesis consistent with the innocence of the accused is as good as a judgment passed on the basis of ocular evidence.

Howsoever perfect and legally correct we may claim to be, there is always a scope for an error in judgment. It is not uncommon that on the basis of same evidence on record, the two Courts may come to different conclusions. The trial Court acquitting the accused and the appellate Court reversing the acquittal and vice versa. In a case based on circumstantial evidence possibility of human Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 82 CRA No.4/2015 error is still more. The rule of prudence demands that a Court may choose to give primacy to life imprisonment over death penalty in cases which are solely based on circumstantial evidence [See Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641]. Thus, keeping in mind the distinct nature of death penalty, it would be prudent to avoid imposing death penalty in cases based on circumstantial evidence because of the potential fallacy of conviction based only on circumstantial evidence and the fact that the death penalty is irreversible. There should be no dispute or doubt about the fact that the cases based on circumstantial evidence have far greater chances of turning out to be wrongful conviction, later on, in comparison to the ones' which are based on fitter source of proof like eye witness account.

46. We are equally aware that despite aforesaid caution and in a contrary line of cases Hon'ble the Supreme Court has expressly refused to consider the circumstantial evidence as a ground for not imposing the death penalty. However, in the instant case having regard to the mitigating factors in favour of the appellants, we are inclined to toe the line that it is not safer to impose death penalty in a case built solely on circumstantial evidence.

47. That it is not a case of the prosecution that the conduct of the appellants during their seventeen years incarceration in jail has not Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 83 CRA No.4/2015 remained satisfactory or that there are no chances of the appellants of reformation. The onus to show that there is no chance of their reformation when appellants step out of prison and could be a menace to the society, lies on the prosecution, which in the instant case has not been discharged. The doctrine of proportionality provides justifiable reasoning for awarding death penalty. However, while imposing any sentence on the accused, the Court must keep in mind the doctrine of rehabilitation.

48. Public opinion is difficult to fit in 'rarest of the rare' doctrine.

Peoples' perception of crime is neither an objective circumstance relating to crime nor to the criminal. Perception of public is extraneous to conviction as also sentencing according to the Mandate of Bachan Singh. Public opinion may also run counter to rule of law and constitutionalism. There is also a danger of capital sentencing becoming a spectacle in media. And if media trial is a possibility, sentencing by media cannot be ruled out.

49. As against these mitigating circumstances, the prosecution has relied upon following aggravating circumstances to justify imposing death penalty upon the appellants:-

1) That the deceased was a minor girl of 14 years and a student of Uqaab Public School, Langate. The appellants took benefit of her tender age and her loneliness kidnapped and raped her and they did not spare her even after raping and one of them committed her murder by slitting her throat. Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 84 CRA No.4/2015

2) The manner in which the heinous crime was committed is diabolical, brutal and has shaken the entire community which remained demonstrating on the streets for several days.

3) That the appellants are menace to the society and the crime committed by them is against the society.

4) That two of the appellants, Mohd. Sadiq Mir and Azher Ahmad have criminal history and do not deserve any leniency.

50. Suffice it to say that we do not dispute that the crime of rape and murder is always gruesome and abhorrent but having regard to the guidelines issued by the Supreme court from time to time and explained in Bachan Singh (supra) and Machi Singh (supra), the case does not fall in the definition of 'rarest of the rare case'.

51. As already observed, we have not found anything on record to show previous conviction of any of the appellants in the police record. The witnesses have orally referred to registration of some cases for commission of minor offences but the prosecution has not placed on record any documentary evidence to substantiate the aforesaid aspect.

52. We have already discussed herein above, that nothing has been brought to our notice by the prosecution from which it could be inferred that convicts are menace to the society. Merely saying so at the time of arguments, is not good enough to believe that there are no chances of appellants' reformation.

Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 17.10.2024 14:47 85 CRA No.4/2015

53. For the foregoing reasons, we are inclined to modify the sentence of death imposed by the trial Court on the appellants for commission of offence punishable under Section 302 RPC and instead sentence the appellants to imprisonment for life without remission for at least 25 years i.e. they shall not be released for any reason, whatsoever, before serving the minimum sentence of twenty-five years. Rest of the sentences imposed by the trial Court shall remain intact and those of imprisonment would run concurrently with imprisonment for life. Trial Court shall issue warrant for execution of sentences, in terms of this judgment.

54. The criminal appeal as well as criminal reference stand disposed of in the above terms. In this view of the matter, writ petition (OWP No.1060/2016) has not been pressed having been rendered infructuous by efflux of time. Accordingly, the writ petition is dismissed as having been rendered infructuous.

55. Record be sent back to the trial Court along with copy of the judgment.

                        (M A Chowdhary)                        (Sanjeev Kumar)
                            Judge                                  Judge
Srinagar
15.10.2024
Vinod, PS

                        Whether the order is reportable: Yes/No




                                                                     Mohammad Altaf Bhat
                                                                     I attest to the accuracy and
                                                                     authenticity of this document

                                                                     17.10.2024 14:47

Unlock Advanced Research with PRISMAI

Jammu & Kashmir High Court - Srinagar Bench