Uttarakhand High Court
State Of Uttarakhand vs Sartaj on 16 May, 2024
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE MS. RITU BAHRI
AND
HON'BLE MR. JUSTICE ALOK KUMAR VERMA
Reserved on : 10.04.2024
Delivered on : 16.05.2024
CRIMINAL REFERENCE NO. 04 OF 2018
State of Uttarakhand ...... Appellant
Versus
Sartaj ...... Respondent
WITH
CRIMINAL APPEAL NO. 20 OF 2019
Sartaj ...... Appellant
Versus
State of Uttarakhand ...... Respondent
WITH
CRIMINAL APPEAL NO. 21 OF 2019
Sartaj ...... Appellant
Versus
State of Uttarakhand ...... Respondent
Presence:-
Mr. J.S. Virk, learned Deputy Advocate General with Mr. Rakesh
Kumar Joshi, learned Brief Holder for the State of Uttarakhand.
Mr. Ram Singh Sammal with Ms. Sarita Bisht, learned counsel for the
accused-appellant Sartaj.
The Court made the following:
2
JUDGMENT:(per Hon'ble the Chief Justice Ms. Ritu Bahri) A reference has been sent by the IV Additional Sessions Judge, Haridwar, in S.T. No. 14 of 2017, State Vs Sartaj, passed vide judgment and order dated 29.11.2018, whereby the respondent Sartaj has been convicted for the offences punishable under Section 302, 307 of IPC. He has been further convicted for the offence under Section 4/25 of Arms Act, in S.T. No. 15 of 2017. The convict / respondent was sentenced to death along with a fine of Rs.40,000/- in respect of offence punishable under Section 302 IPC, and he was further sentenced to undergo imprisonment for life along with a fine of Rs.30,000/- in respect of offence punishable under Section 307 IPC. Convict / respondent has also been sentenced to undergo six months rigorous imprisonment in respect of offence punishable under Section 4/25 of Arms Act along with a fine of Rs.1,000/. All the sentences were directed to run concurrently, except the death penalty. Against said judgment and order, criminal appeals have also been filed by the convict.
2) Prosecution story, in brief, is that on 24.09.2016, at around 02:35 A.M., a complaint was submitted by the complainant Arif to the S.H.O., P.S. 3 Ranipur, District Haridwar, stating therein that on 24.09.2016, at about 01:00 A.M. in the night, when he was sleeping with his family at his house, Raddu, who lives in the back street, came to his house with Shahzad's children Ruhi, Rihaan, Khushi and Ayaan and told the complainant that accused Sartaj has murdered his sister-in-law Rukhsana by stabbing her and slitting her throat, and accused Sartaj was stabbing Shahzad outside Shamsher's house. Accused had also attacked Khushi with knife in order to kill her, but Raddu saved Khushi. Raddu had come to leave the children in the house of complainant Arif. On this, the complainant immediately left the children with his mother and rushed with Raddu, when the complainant reached outside Shahzad's house, he found many people gathered outside the house. Shahzad's body was lying outside the house in front of Shamsher's gate and the villagers had locked accused Sartaj inside the house, then the police also came. The police opened the door and arrested accused Sartaj with a knife. When the complainant and Raddu went inside the house, they saw that Rukhsana's body was lying on the left side.
3) After the complaint was made Case Crime No. 248 / 2016, under Section 302, 307 IPC, and Case Crime 4 No. 246 / 2016, under Section 4/25 Arms Act, were registered at P.S. Ranipur. The Investigating Officer investigated the crime, recorded the statements of the witnesses, inspected the site, prepared a map, and after completion of investigation, filed charge sheet against the accused under Sections 302, 307 IPC, and one under Section 4/25 Arms Act.
4) Thereafter, on 16.12.2016, learned Additional Chief Judicial Magistrate, Haridwar took cognizance of the matter, and committed the case for trial in the court of Sessions. On 16.01.2017, learned Sessions Judge, Haridwar framed charges under Section 302, 307 IPC, and one under Section 4/25 of Arms Act against the accused Sartaj. The accused pleaded not guilty and claimed to be tried.
5) To prove its case, prosecution got examined P.W.1 Raddu, P.W.2 Khushi, P.W.3 Ruhi, P.W.4 Arif, P.W.5 S.I. Shyam Singh, P.W.6 Dr. S.K. Dwivedi, P.W.7 Constable Rajesh Chauhan, P.W.8 Dr. Manoj Kumar Dwivedi, P.W.9 Aslam, P.W.10 Taufiq, P.W.11 S.I. L.S. Butola, P.W.12 S.I. Dil Mohan Singh, P.W.13 S.I. Ritu Raj Singh, P.W.14 Inspector Pradeep Bisht, P.W.15 S.I. Manish Singh Negi and P.W.16 S.I. Kuldeep Singh. 5
6) In the documentary evidence on behalf of the prosecution, copy of the complaint (Ext. A-1), Memo taking possession of blood and soil (Ext. A-2), Memo taking possession of clothes, blood and soil (Ext. A-3), Ms. Khushi's medical certificate (Ext. A-4), Chik FIR (Ext. A-5), carbon copy of case registered GD (Ext. A-6), Postmortem reports of Shahzad and Rukhsana (Ext. A-7 and Ext. A-8), Panchayatnama (Ext. A-6), photo of deceased Shahzad (Ext. A-10), Police Form No. 13 (Ext. A-11), Police form No. 13 in respect of Shahzad (Ext. A-
12), sample seal (Ext. A-14), Panchayatnama Rukhsana (Ext. A-14), photo of deceased Rukhsana (Ext. A-15), police form no. 13 in respect of Rukhsana (Ext. A-16) sample seal Rukhsana (Ext. A-17), Memo recovery of FIR No. 246/16 (Ext. A-18), arrest and information memo of accused Sartaj in FIR No. 248/16 (Ext. A-24 and Ext. A-25), charge sheet of FIR No. 248/16 (Ext. A-
21), site plan of FIR No. 248/16 (Ext. A-22), site plan of FIR No. 249/16 (Ext. A-24), arrest and information memo of accused in FIR No. 248/16 (Ext. A-23 and Ext. A-24), charge sheet of FIR No. 249/16 (Exhibit A-25), F.S.L. report (Ext. A-26) were presented.
7) After the prosecution evidence was over, the statement of accused was recorded under Section 313 6 Cr.P.C., in which the accused described the alleged incident to be false and the statements of witnesses were called false. The accused refused to give evidence in defence. It was also stated that Sakshi, Raddu and his son had beaten the accused in the past, and they had a grudge against him. It was Raddu and his son who had committed the murder of Shahzad and Rukhsana, locked the accused in the room along with the dead bodies and bolted it from outside, and the police came and got the room opened. It was further stated by the accused that he had not committed the said murders.
8) P.W.5 S.I. Shyam Singh, P.W.7 Constable Rajesh Chauhan, P.W.11 S.I. L.S. Butola, P.W.12 S.I. Dil Mohan Singh, P.W.13 S.I. Ritu Raj Singh, P.W.14 Inspector Pradeep Bisht, P.W.15 S.I. Manish Singh Negi and P.W.16 S.I. Kuldeep Singh have adduced their evidence and have been examined by the Court as official witnesses.
9) The registration of FIR against the accused has been proved by P.W.7 Constable Rajesh Chauhan. Investigation of the case was conducted by P.W.13 S.I. Ritu Raj Singh and P.W.14 Inspector Pradeep 7 Bisht. As per the evidence given by P.W.9 Aslam and P.W.10 Taufiq, they were living near the place of incidence and were present at the spot along with others when commotion broke out on 24.09.2016. They had seen accused Sartaj holding a bloodstained knife in his right hand, and they saw the body of deceased Shahzad lying soaked in blood outside the house, and body of deceased Rukhsana was lying at the verandah of the house. She was lying soaked in blood with injuries suffered from sharp weapon. When the police reached the spot and opened the door of Shahzad's house, they saw that the accused Sartaj was standing with a knife soaked in blood, and dead body of deceased Rukhsana was lying nearby. The dead body of Rukshana had knife injuries and a knife was recovered from the right hand of accused Sartaj. P.W.10 Taufiq also proved this fact, that he was resident of this village and after hearing the commotion he rushed to the spot with his licensed gun in a vehicle. When he reached there, he saw that Shahzad had been murdered and his dead body was lying on the road. The dead body was lying almost in front of Shamsher's house and Sartaj was standing at his door with a knife in his right hand which was 8 soaked in blood, his right hand was also stained with blood. On seeing P.W.10, accused Sartaj went inside the house and locked it from inside, and P.W.10 and others bolted the house from outside. P.W.10 informed the police through Israr's phone, on which the police reached the spot and arrested accused Sartaj along with a knife from inside the room of the house of Shahzad.
10) P.W.12 S.I. Dil Mohan Singh, P.W.14 Inspector Pradeep Bisht have also supported the prosecution version that P.W.9 Aslam and P.W.10 Taufiq had reached the place of incident after hearing the commotion and found the deceased Shahzad lying outside his house. Rukhsana was seen dead soaked in blood with injuries from a sharp weapon. Her body was lying in verandah of the same house.
11) P.W.6 Dr. S.K. Dwivedi had deposed that injuries found on the back side of the right thumb, and on the front of right side of chest of P.W.2 Khushi could have been caused by a sharp weapon, or a sharp object. P.W.2 Khushi is the daughter of deceased Rikhsana and Shahzad, who was also assaulted by accused Sartaj, but was saved. P.W.8 9 Dr. Manoj Kumar Dwivedi, who conducted the postmortem examination on the dead bodies, has also expressed the opinion that on physical examination of deceased Shahzad and Rukhsana the injuries were found to be caused by sharp weapon, and the cause of death was due to shock and haemorrhage as a result of ante mortem injuries. The police had recovered the knife used in the murder and the clothes worn by the accused at the time of incident recovered from the accused on the spot. The knife, clothes of the accused, plain soil & bloodstained soil, and bloodstained pieces of floor taken from the spot were sent to the Forensic Science Laboratory, Dehradun for testing. The investigation reports of which were at Sl. Nos. 489 / 1 and 489 / 4. The investigation reports confirmed the presence of human blood on the clothes of the accused, on the knife used in the commission of murder, and on blood soaked soil & pieces of floor. The above said reports were found to be admissible in evidence under Section 293 of Cr.P.C., and as per these reports there were marks on the floor and on the knife used in the murder. It was confirmed that there was human blood on the bloodstained soil and pieces of floor, and 10 hence this led to proving the guilt of accused Sartaj in the commission of crime of murder.
12) Another witness to this incident was P.W.3 Ruhi, daughter of Rukhsana and Shahzad. P.W.3 Ruhi was an eyewitness, aged 13 years. She confirmed the fact that accused Sartaj used to live in their house. Accused Sartaj had stolen Rs.50,000/- from his father. Her father told Sartaj to return Rs.25,000/- and keep the remaining Rs.25,000/-. This happened in the evening of 24.09.2016, but accused Sartaj did not say anything at that time. Everybody had dinner, but her mom and dad did not eat due to tension and neither did the accused. At 01:00 A.M., in the night, the door of the room in which P.W.2 Khushi, P.W.3 Ruhi and her brothers were sleeping along with their parents was knocked by accused Sartaj. P.W.3 Ruhi's father opened the door. The accused Sartaj stabbed her father several times with the knife in the stomach. When her mother Rukhsana came from behind and tried to free Shahzad from the accused Sartaj, she was also attacked with knife in the stomach and hands by the accused Sartaj. P.W.2 Khushi, another eyewitness, aged 7 years, corroborated the evidence given by 11 P.W.3 Ruhi. P.W. 2 Khushi was also attacked with the knife on her hand and chest by accused Sartaj. P.W.1 Raddu came to the spot and saved them from accused Sartaj and took them to P.W.4 Arif's house. P.W.2 Khushi was a minor, aged 07 years, and her evidence was recorded before the court by the Presiding Officer. P.W.2's evidence was recorded only after examining her competency to give evidence, and finally, she was found to be competent witness.
13) P.W.1 Raddu is another eyewitness of the incident, and he clearly stated in his evidence that he lives in front of the house of the deceased Shahzad. On 24.09.2016, due to commotion in the night, he reached on the spot and saw the accused with Shahzad. Accused was stabbing Shahzad with a knife and when Rukhsana came to save deceased Shahzad, accused Sartaj also stabbed Rukhsana with the knife, and also stabbed P.W.2 Khushi with the knife. P.W.1 Raddu saved Khushi from accused Sartaj and took the children to Arif's house in the lane behind the place of incident.
14) Keeping in view the evidence given by P.W.1 Raddu, P.W.2 Khushi, and that of P.W.3 Ruhi 12 which were corroborative in nature and, moreover, the evidence given by P.W.1 Raddu which has been confirmed by P.W.4 Arif, who stated that in the night of 24.09.2016, P.W.1 Raddu came from the house of deceased Shahzad with children of the deceased and told him that accused Sartaj had stabbed his sister-in- law to death and is stabbing Shahzad. P.W.1 also told P.W.4 that accused Sartaj also attacked P.W.2 Khushi, but he saved Khushi. The evidence given by P.W.4 has also been corroborated by the evidence given by P.W.1 Raddu. The evidence given by P.W.1 Raddu has been corroborated and confirmed by P.W.4 Arif, who stated that in the night of 24.09.2016, P.W.1 had come to his house with the children of Shahzad and told him that Sartaj had committed murder of Shahzad and Rukhsana, and also injured P.W.2 Khushi. P.W.1 Raddu had rescued the children from the accused and brought them in the house of P.W.4.
15) The lower court held that as per the evidence given by P.W.1, P.W.2, P.W.3 and P.W.4, and the evidence adduced by P.W.7 Dr. Manoj Kumar Dwivedi with respect to injuries inflicted on the person of P.W.2 Khushi, these evidence were sufficient to 13 hold that accused Sartaj had committed the crime, and P.W.1 Raddu was an independent witness, and had no reason to falsely implicate the accused, and no evidence has been led by the defence to show that accused had been falsely implicated in the commission of crime.
16) As per the evidence given by P.W.12 S.I. Dil Mohan Singh, P.W.14 Inspector Pradeep Bisht, who stated that after hearing the commotion at the place of incident, P.W.9 Aslam and P.W.10 Taufiq reached the spot and saw the accused standing at the door with a bloodstained knife in his right hand, and the body of Rukhsana was seen lying soaked with blood in the verandah of the house. The investigation reports, which were at Sl. Nos. 489 / 1 and 489 / 4 on record, confirmed the presence of human blood on the bloodstained clothes of the accused & the knife, bloodstained soil & pieces of floor.
17) Accused Sartaj in his statement recorded under Section 313 Cr.P.C. only stated that he had been falsely implicated in this case. He further stated that P.W.1 Raddu and his son had beaten him in the past and P.W.1 had a grudge against him. Shahzad 14 and Rukhsana were murdered by Raddu and his son, who locked the accused with the dead bodies in the room, and locked the room from outside. He had not committed any murder, and had been falsely implicated in the crime. However, no evidence in defence has been adduced.
18) The court below also took note of the fact that bloodstained soil and bloodstained pieces of floor and the clothes worn by the accused at the time of incident were taken into possession and panchnama proceedings along with photo corpse, specimen seal, corpse specimen seal, formal form were prepared.
19) These facts along with the testimony given by prosecution witnesses P.W.4 Arif, P.W.5 S.I. Shyam Singh, P.W.9 Aslam, P.W.10 Taufiq, P.W.11 S.I. L.S. Butola and P.W.14 Inspector Pradeep Bisht were found reliable, and were found proved beyond reasonable doubt against the accused Sartaj.
20) The court below held that they were reliable witnesses and had proved the fact to the best of their ability. The eyewitness account given by P.W.1 Raddu, P.W.2 Khushi, P.W.3 Ruhi and P.W.4 Arif, being eyewitnesses, had confirmed the chain of 15 events coupled with the medical evidence given by P.W.6 Dr. S.K. Dwivedi and P.W.8 Dr. Manoj Kumar Dwivedi, which were sufficient to return a finding that the murder of Shahzad and Rukhsana had been committed by accused Sartaj, who had also made murderous attack on P.W.2 Khushi.
21) The trial court further proceeded to examine the cause of incident in the case. As per the evidence given by P.W.2 Khushi and P.W.3 Ruhi, on the evening of the day of incident, Shahzad had asked accused Sartaj to return Rs.25,000/- out of Rs.50,000/-. There was an altercation between them and due to this tension parents of P.W.2 and P.W.3 did not eat dinner, and even accused Sartaj did not eat dinner. Deceased Shahzad had stated that if an amount of Rs.50,000/- was not given back to him by accused Sartj, he will go to the police and make a complaint that Rs.50,000/- had been stolen by accused Sartaj. At this stage, accused Sartaj had threatened the deceased Shahzad that if any action was taken against him, Shahzad would be punished and the outcome will not be good. The above reason to kill deceased Shahzad and deceased Rukhsana was also made out. At the same time, the defence did not 16 show anything on record whether anyone else had any motive for committing the murder of Shahzad and Rukhsana.
22) The defence taken by the accused Sartaj in his statement under Section 313 Cr.P.C. was that the murder had been committed by P.W.1 Raddu and his son. Since this fact was very well known to the accused, the burden of proving the same was also on the accused Sartaj that it was P.W.1 Raddu, who had a grudge against him, and accused had been falsely implicated in the crime. Even if there was any enmity between the accused and P.W.1 Raddu for sometime, then only this cannot be made a ground to doubt the evidence given by eyewitness Raddu, and his evidence cannot be rejected. P.W.8 Dr. Manoj Kumar Dwivedi, who had conducted postmortem on the dead body of deceased Shahzad stated that there were total 16 injuries caused by sharp weapon on his body. There was a cut wound of 14 x 2.5 cm on the upper part of neck, and all the arteries and ends of the throat, breathing pipe and all structures of the deceased Shahzad's neck were cut. As per the postmortem report of deceased Rukhsana it was revealed that she had received 16 injuries on her 17 body with sharp weapon and three injuries on the throat and injury No. 1 was a cut wound on the upper part of the throat measuring 13 x 1.5 cm, and trachea of the throat has been damaged. The end and the artery were cut. Injury No. 14 reveals a deep wound on the stomach. It was also mentioned that intestine and surface of the deceased were coming out. It was held by the court below that accused Sartaj had intention to kill the deceased Shahzad and deceased Rukhsana by causing such deep wounds on their person with a sharp weapon on their necks. The recovery of knife used in the murder from accused Sartaj by the prosecution on 24.09.2016, and the recovery has been proved by P.W.5, P.W.10, P.W.12 and P.W.14 from the accused Sartaj on 24.09.2016. With regard to the cloth worn by the accused Sartaj, the same were seized and panchnama proceedings were conducted along with photo corpse, specimen stamp, corpse specimen stamp, formal form, were prepared. It is noteworthy that on these facts, the evidence of prosecution witnesses P.W.1 Arif, P.W.5 S.I. Shyam Singh, P.W.9 Aslam, P.W.10 Taufiq, P.W.11 S.I. L.S. Butola, P.W.14 Inspector Pradeep 18 Bisht have been found reliable and they have proved the above facts to the best of their ability.
23) Having heard learned counsel for the parties, and after going through the evidence brought on record, the trial court came to the conclusion that it was only accused Sartaj and no one else, who had committed the crime. The Trial Court, accordingly, convicted accused Sartaj for the offences punishable under Section 302, 307 IPC, and one punishable under Section 4/25 Arms Act. Convict Sartaj was sentenced with death penalty for the offence punishable under Section 302 IPC. He was further sentenced to imprisonment for life in respect of offence punishable under Section 307 IPC, and six months rigorous imprisonment for the offence punishable under Section 4/25 Arms Act. All the sentences were directed to run concurrently except the death penalty.
24) After hearing learned counsel for the accused Sartaj, as well as learned Deputy Advocate General for the State, at length, no ground is made out to interfere with the findings recorded by the trial court with respect to the fact that it was accused Sartaj who had committed murder of Shahzad and 19 Rukhsana with a sharp weapon, a knife, and inflicted injuries on the person of P.W.2 Khushi, who was present on the spot, with the same knife.
25) Now the question which arises for consideration of this Court is whether death penalty should be imposed or imprisonment for life is an adequate sentence. This question has triggered a debate throughout the globe all these years. Human Right Activists have been for imprisonment for life and abolition of death penalty, whereas the protagonists of those who have lost their sole bread earners have been propagating and advocating for death penalty. These are two swings of the pendulum which are to be measured by the courts while imposing sentence. We have tried to encapsulate the decisions which have been rendered by the Supreme Court of India after independence in this regard.
26) In 1973, the Supreme Court in the case of Jagmohan Singh Vs State of U.P. (1973) 1 SCC 20, examined the question whether death sentence awarded by a court under Section 302 of Indian Penal Code, 1880 was violative of sub-clause (1) of Article 19 of the Constitution. As per Sub-Section (5) of Section 367 of 20 Criminal Procedure Code, there was a discretion with the court either to award capital sentence or life imprisonment. The Supreme Court held that Article 19 of the Constitution does not directly deal with the freedom to live. It is not included in the seven freedoms mentioned in that Article. As far as India is concerned, capital punishment cannot be described as unusual because that kind of punishment has been with us from ancient times right up to the present day though the number of offences for which it can be imposed has continuously changed. The framers of our Constitution were well aware of the existence of capital punishment as a permissible punishment under the law. The other Articles in the Constitution, viz., Section 72(1)(c), 72(3), 21 and 134 and Sections 401 and 402 of the Code of Criminal Procedure and the Entries 1 and 2 in List III of the Seventh Schedule, all indicate that capital sentence has not been regarded per se as unreasonable or not in the public interest.
27) After the amendment by Act 26 of 1955, it was left to the judicial discretion of the court whether the death sentence or the lesser sentence should be imposed. Article 14 cannot be invoked in matters of judicial discretion. If the law has given to the Judges 21 wide discretion in matter of sentence to be exercised by him after balancing all the aggravating and mitigating circumstances of the crime, it will be impossible to say that there would be at all any discrimination, since facts and circumstances of one case can hardly be the same as the facts and circumstances of another. In a criminal trial, the accused who is charged for murder knows that he is liable to sentence of death in the committing court itself. The accused has a right to examine himself as a witness, and thereafter, give evidence on the material facts. He and his counsel are at liberty to address the court not merely on the question of guilt but also on the question of sentence, and so on. After the prosecution and the accused have had their full say, the court is principally concerned with the facts and circumstances, whether aggravating or mitigating, which are connected with the particular crime under inquiry. In this backdrop, the procedure established by law cannot be said to be unconstitutional under Article 21.
28) The Supreme Court also examined several studies made by Western Scholars to show the ineffectiveness of capital punishment either as a deterrent or as an appropriate retribution. The Supreme Court Judges in the above study observed that social 22 conditions are different and also the general intellectual level. The only authoritative study in India is that of the Law Commission of India published in the year 1967. One the basis of its conclusions it is difficult to hold that capital punishment as such is unreasonable or not required in public interest. The policy of the law in giving a very wide discretion in the matter of punishment to the Judge has its origin and impossibility of laying down standards.
29) 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. This discretion in the matter of sentence is liable to be corrected by superior courts. Laying down of standards to the limited extent possible as was done in the Mode Judicial Code would not serve the purpose. The exercise of judicial discretion of well-recognised principles is, in the final analysis, the safest possible safeguards for the accused. The Code of Criminal Procedure lays down a detailed procedure and this procedure is limited to the finding of the guilt. The Supreme Court finally held that it was necessary to emphasize that the court was principally concerned with 23 the facts and circumstances, whether aggravating or mitigating, which are connected with the particular crime under inquiry.
30) In paragraph 29 of the Jagmohan's case (supra), the Supreme Court observed as under :
"However, it is necessary to emphasize that the court is principally concerned with the facts and circumstances, whether aggravating or mitigating, which are connected with the particular crime under inquiry. All such facts and circumstances are capable of being proved in accordance with the provisions of the Indian Evidence Act in a trial regulated by the Cr.P.C. The trial does not come to an end until all the relevant facts are proved and the counsel on both sides have an opportunity to address the court. The only thing that remains is for the judge to decide on the guilt and punishment and that is what Sections 306(2) and 309(2), Cr.P.C. purport to provide for. These provisions are part of the procedure established by law and, unless it is shown that they are invalid for any other reasons, they must be regarded as valid. No reasons are offered to show that they are constitutionally invalid, and, hence, the death sentence imposed after trial in accordance with the procedure established by law is not unconstitutional under Article
21."
31) Thereafter, in Bachan Singh Vs State of Punjab (1980) 2 SCC 684, a larger bench of Supreme Court consisting of five judges has affirmed the view taken in Jagmohan's case (supra), and has affirmed the 24 proposition that the provisions of death penalty for an offence punishable under Section 302 IPC, and the sentencing procedure laid down in sub-section (3) of Section 354 of Criminal procedure Code, requires that special reasons have to be recorded for awarding a death penalty, and these provisions are not violative of Article 14, 19 and 21.
32) While approving the judgment in Jagmohan's case (supra), the Supreme Court also referred to the new provision in sub-section (3) of Section 354 of the Criminal Procedure Code, 1973, that award of death sentence was an exception to be made for "exceptional reasons" founded on grave circumstances of the particular case relating to the crime and the criminal.
33) In Paragraphs 160, 161 & 162 of the Supreme Court judgment rendered in Bachan Singh's case (supra), it has been observed as under :
"160. In the light of the above conspectus, we will now consider the effect of the aforesaid legislative changes on the authority and efficacy of the propositions laid down by this Court in Jagmohan's case. These propositions may be summed up as under:
(i) The general legislative policy that underlies the structure of our criminal law, principally contained in the Indian Penal Code and the Criminal Procedure Code, is to define an offence with sufficient clarity and to prescribe only the maximum 25 punishment therefor, and to allow a very wide discretion to the Judge in the matter of fixing the degree of punishment.
With the solitary exception of Section 303, the same policy permeates Section 302 and some other sections of the Penal Code, where the maximum punishment is the death penalty.
(ii)(a) No exhaustive enumeration of aggravating or mitigating circumstances which should be considered when sentencing an offender, is possible. "The infinite variety of cases and facets to each case would make general standards either meaningless 'boiler plate' or a statement of the obvious that no Jury (Judge) would need." (Referred to McGoutha v. California, (1971) 402 US 183.
(b) 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.
(iii) The view taken by the plurality in Furman v. Georgia, 408 US 238 (1972), decided by the Supreme Court of the United States, to the effect, that a law which gives uncontrolled and un-guided discretion to the Jury (or the Judge) to choose arbitrarily between a sentence of death and imprisonment for a capital offence, violates the Eighth Amendment, is not applicable in India. We do not have in out Constitution any provision like the Eighth Amendment, nor are we at liberty to apply the test of reasonableness with the freedom with which the Judges of the Supreme Court of America are accustomed to apply "the due process" clause. There are grave doubts about the expediency of transplanting western experience in our country. Social conditions are different and so also the general intellectual level. Arguments which would be valid in respect of one area of the world may not hold good in respect of another area.
(iv)(a) This discretion in the matter of sentence is to be exercised by the Judge judicially, after balancing all the aggravating and mitigating circumstances of the crime.
(b) The discretion is liable to be corrected by superior courts. The exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguard for the accused.
In view of the above, it will be impossible to say that there would be at all any discrimination, since crime as crime may appear to be superficially the same but the facts and circumstances of a crime 26 are widely different. Thus considered, the provision in Section 302, Penal Code is not violative of Article 14 of the Constitution on the ground that it confers on the Judges an unguided and uncontrolled discretion in the matter of awarding capital punishment or imprisonment for life.
(v)(a) Relevant facto and circumstances impinging on the nature and circumstances of the crime can be brought before the Court at the pre- conviction stage, notwithstanding the fact that no formal procedure for producing evidence regarding such facts and circumstances had been specifically provided. Where counsel addresses the Court with regard to the character and standing of the accused, they are duly considered by the Court unless there is something in the evidence itself which belies him or the Public Prosecutor challenges the facts.
(b) It is to be emphasised that in exercising its discretion to choose either of the two alternative sentences provided in Section 302, Penal Code, "the Court is principally concerned with the facts and circumstances whether aggravating or mitigating, which are connected with the particular crime under inquiry. All such facts and circumstances are capable of being proved in accordance With the provisions of the Indian Evidence Act in a trial regulated by the Cr.P.C. The trial does not come to an end until all the relevant facts are proved and the counsel on both sides have an opportunity to address the Court. The only thing that remains is for the Judge to decide on the guilt and punishment and that is what Sections 306(2) and 309(2), Cr.P.C. purport to provide for. These provisions are part of the procedure established by law and unless it is shown that they are invalid for any other reasons they must be regarded as valid. No reasons are offered to show that they are constitutionally invalid and hence the death sentence imposed after trial in accordance with the procedure established by law is not tin- constitutional under Article 21. (emphasis added).
161. A study of the propositions set out above, will show that, in substance, the authority of none of them has been affected by the legislative changes since the decision in Jagmohan's case. Of course, two of them require to be adjusted and attuned to the shift in the legislative policy. The first of those propositions is No. (iv)(a) which postulates, that according to the then extant CrPC both the alternative sentences provided in Section 302, Penal 27 Code are normal sentences, and the court can, therefore, after weighing the aggravating and mitigating circumstances of the particular case, in its discretion, impose either of those sentences. This postulate has now been modified by Section 354(3) which mandates the Court convicting a person for an offence punishable with death or, in the alternative with imprisonment for life or imprisonment for a term of years, not to impose the sentence of death on that person unless there are "special reasons" - to be recorded - for such sentence. 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. Thus, the legislative policy now writ large and clear on the face of Section 354(3) is that on conviction for murder and other capital offences punishable in the alternative with death under the Penal Code, the extreme penalty should be imposed only in extreme cases.
162. In this view we are in accord with the dictum of this Court in Balwant Singh v. State of Punjab , 1976 SCC (Cri) 43, wherein the interpretation of Section 354(3) first came up for consideration. After surveying the legislative background, one of us (Untwalia, J.) speaking for the court, summed up the scope and implications of Section 354(3), thus:
Under this provision the Court is required to state the reasons for the sentence awarded and in the case of sentence of death, special reasons are required to be stated. It would thus be noticed that awarding of the sentence other than the sentence of death is the general rule now and only special reasons, that is to say, special facts and circumstances in a given case, will warrant the passing of the death sentence. It is unnecessary nor is it possible to make a catalogue of the special reasons which may justify the passing of the death sentence in a case.
While applying proposition (iv)(a), therefore, the Court has to bear in mind this fundamental principle of policy embodied in Section 354(3)."28
34) The Supreme Court further observed that there could be no rigid standards which can be laid down in the form of guidelines with respect to area of imposition of death penalty. The purpose of "laying down standards" meant that 'murder' should be categorised beforehand according to the degrees of its culpability and all aggravating and mitigating circumstances should be exhaustively and rigidly enumerated so as to exclude all free play of discretion.
Such standardisation was not possible. Firstly, the degree of culpability cannot be measured in each case; secondly, criminal cases cannot be categorized where there are infinite, unpredictable and unforeseeable variations; thirdly, on such categorisation the sentencing process will cease to be judicial; and, fourthly, such standardization or sentencing discretion is a policy matter belonging to legislation beyond the court's function. In this backdrop, no rigid standard in this area can be laid down. Some broad guidelines consistent with the policy indicated by the legislature in Section 354(3) can be taken. The Court finally has to pay due regard both to the crime and the criminal. What is relative weight to be given to the aggravating and mitigating factors, depends on the facts and 29 circumstances of a particular case. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. Hence, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate watertight compartments. The Judges should never be bloodthirsty. Hence, courts aided by the broad illustrative guidelines will discharge the onerous function with evermore scrupulous care and humane concern. As per the legislative policy guidelines in sub-section (3) of Section 354, i.e., for the person 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.
35) The Supreme Court, thereafter, in Machhi Singh and others Vs State of Punjab, (1983) 3 SCC 470, followed the guidelines laid down by it in Bachan Singh's case (supra), and examined the case of a death sentence imposed on Machhi Singh, Kashmir Singh, Jagir Singh by the Sessions Court as confirmed by the 30 High Court. They confirmed the death sentence awarded to the above said three accused. While, affirming the death sentence, in paragraph 32 of said judgment, the Supreme Court observed as under :
"32. The reasons why the community as a whole does not endorse the humanistic approach reflected in 'death sentence-in-no-case' doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of 'reverence for life' principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The every existence of the rule of law and the fear of being brought to book operates as a deterrent of those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by 'killing' a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self- preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so 'in rarest of rare cases' when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti- social or abhorrent nature of the crime."
36) All the three accused had murdered two innocent and helpless women named Ghamo Bai and Rajo Bai in a helpless and defenceless state in their own house. A couple namely Bishan Singh and his wife Paro 31 Bai were killed in similar circumstances. Sahib Singh, Mukhtiar Singh, Manto Bai, Palo Bai and Jita Singh were killed by five men including Machhi Singh and Jagir Singh. They put to death a young newly married couple and rendered a young woman a widow. The appeal filed by above accused was dismissed by the Supreme Court following the guidelines indicated in Bachan Singh's case (supra).
37) Recently, the Supreme court in the case of Digambar Vs The State of Maharashta, 2023 2 CriCC 647, had an occasion to examine whether death penalty could be awarded in case of an honour killing. In that case, the Supreme Court observed that the appellant Digambar was a young boy of 25 years at the time of incident and had not acted in a brutal manner as there was one single injury inflicted on both deceased. As far as offence punishable under Section 302 is concerned, the Supreme Court held that the prosecution had established that the deceased and accused persons left the house together and soon thereafter the death of deceased person had occurred. The accused were held guilty of the offence punishable under Section 302 IPC. However, keeping in view the fact that appellant Digambar was 25 years of age, it was not considered to 32 be a 'rarest of rare' case. He was held to be not a person with criminal mindset and criminal records, and in this backdrop, the sentence of capital punishment was committed to life imprisonment. The Supreme Court had also taken into account the report of the Probation Officer. As per said report, the Sarpanch and people of the village had stated that inter-caste marriage of deceased friend Govind and deceased sister Pooja was putting social pressure and being angry about it, the incident took place in sudden provocation by Digambar. However, overall behaviour of Digamber was found to be good.
38) The Supreme Court also referred to the case of Gandi Doddabasappa alias Gandhi Basavaraj Vs State of Karnataka, (2017) 5 SCC 415, wherein the accused had committed murder of his daughter, who was in the advanced stage of pregnancy. The Supreme Court had upheld the conviction of the accused in respect of offence punishable under Section 302 IPC, but commuted the sentence from capital punishment to imprisonment for life.
39) Similarly, in the case of Prakash Dhawal Khairnar (Patil) Vs State of Maharashtra, (2002) 2 SCC 35, the appellant was a Senior Scientific Assistant. He 33 wiped out his brother's entire family. The Supreme Court found that this was done by him on account of frustration as his brother was not partitioning the alleged joint property. The Supreme Court held that the crime was heinous and brutal, but the same could not be considered to be 'rarest of rare' case. It is, however, held that it was difficult to hold that the accused was a menace to the society, and that there was no reason to believe that he could not be reformed or rehabilitated.
40) Also, Mohinder Singh Vs State of Punjab, (2013) 3 SCC 294, was a case where the accused had committed murder of his wife and daughter, and the Supreme Court had held that it could not be considered to be 'rarest of rare' case to inflict the capital punishment.
41) In a recent case of Sundar @ Sundarrajan Vs State by Inspector of Police, 2023 SCC OnLine 310, the Supreme Court was examining the mitigating circumstances and the possibility of reformation and rehabilitation before imposing the death penalty, which had been highlighted in multiple judgments of the Supreme Court. The Supreme Court in the appeal filed by Sundar @ Sundarrajan has also observed that no 34 such enquiry was conducted with respect to the possibility of reformation and only the grievous nature of crime was made basis to award death penalty. In that case, the appellant was 24 years old, and he had been in prison for 13 years. He had no prior antecedents and the jail authorities stated that he had not been involved in any other case. Keeping in view the above facts, the Supreme Court held that even though the crime committed by the appellant is unquestionably grave, however, it was not appropriate to affirm the death sentence that was awarded to him. The death sentence has to be imposed taking it to be a 'rarest of rare' case, where there is not possibility of reformation in a criminal. The appellant had kidnapped and murdered the victim, who was a young child of 07 years of age. However, since the appellant does not have a background of being a criminal, and his age was 24 years, and there was scope for reformation, the death sentence was commuted to 20 years without reprieve or remission.
42) Supreme Court in the case of B.A. Umesh Vs Union of India and others, Criminal Appeal No. 1892 of 2022 (arising out of SLP (Crl.) No. 890 of 2022, decided on 04.11.2022, has also examined the issue 35 whether delay in execution of death sentence could be a sufficient ground for substituting death sentence by imprisonment for life.
In the above matter, the Supreme Court was examining the case where the execution of death sentence was due to the delay which took place in execution of the death sentence due to pendency of mercy petition and reference was made to a judgment of Ajay Kumar Pal Vs Union of India and another, 2015 (2) SCC 478. In that case there was a delay of 03 years and 10 months, which was found to be inordinate and the delay was not attributed to the accused / petitioner but the delay was found on account of functionaries and authorities in question.
43) In paragraph 14 of the above said judgment, the Supreme Court observed as under :
"Paras 44 and 48 of the decisions of this Court in Shatrughan Chauhan and another Vs Union of India and others, (2014) 3 SCC 1, which were quoted in Ajay Kumar Pal (supra), had laid down that undue long delay in execution of death sentence would entitle the condemned prisoner to pray for commuting the death sentence to that of life imprisonment. The individual cases were thereafter dealt with in Shatrughan Chauhan (supra) and paragraph 105 onwards of said 36 decision show that in cases where there was a delay of 12 years (para 118), 9½ years (para 137), 9½ years (para 147), 7 years and 8 months (para 161), 5 years and 8 months (para 175) and 7 years and 5 months (para 209), the benefit of commutation was extended by this Court."
44) In the case before the Supreme Court the mercy petition was received by the Central Government on 03.03.2011, and it was disposed of on 15.05.2013. In between, the Ministry of Home Affairs, Government of India, forwarded the mercy petition to the Principal Secretary, Home Department, Karnataka so that the Governor, Karnataka could consider the mercy petition. Thereafter, in the meantime, on 09.03.2011 in Writ Petition No. 52 of 2011, preferred by the accused- appellant, Supreme Court granted stay of execution of death sentence. Before the Central Government authorities, the State Cabinet on 07.05.2012, decided to approve the note prepared by the Home Department recommending rejection of mercy petition. The Governor also rejected the mercy petition on 06.06.2012, and subsequently, the matter was referred to the Central Government on 30.08.2012, and finally, the Hon'ble President after considering the mercy 37 petition, rejected the mercy petition on 12.05.2013. Hence, a period of 02 years and 03 months was taken to dispose of the mercy petition.
45) In A.G. Perarivalan Vs State through Superintendent of Police and another, 2022 SCC Online SC 635, a bench of three Judges of Supreme Court had commuted the sentence of death to life in a petition filed under Article 161 of the Constitution keeping in view the fact that the petition remained pending for 2½ years with the Hon'ble Governor, despite recommendation of the State Cabinet for remission of the sentence.
46) In the same judgment, the Supreme Court examined the case of solitary confinement of a convict under Section 29 of the Prisons Act, 1894. The law laid down by the Supreme Court in Sunil Batra Vs Delhi Administration and others, (1978) 4 SCC 494, and Ajay Kumar Pal's case (supra), where the convict had been kept in solitary confinement after awarding the death sentence till his mercy petition was disposed of was declared as a long period of incarceration. In the case before the Supreme Court the solitary confinement was w.e.f. 2006 to 2016 for a period of 10 years, and hence it was held that incarceration of 10 years of solitary 38 confinement would have ill effects on the well-being of the convict and, in this backdrop, the appellant was entitled to have the death sentence imposed upon him to be commuted to death sentence to imprisonment for life, and finally the Supreme Court held that mercy petition must be filed within 07 days of the disposal of the appeal or dismissal of the Special Leave Petition, and the convict is entitled to file a review petition within 30 days.
47) Applying the ratio of all the judgments as referred hereinabove, this Court is of the opinion that the proper exercise of the discretion in respect of the punishment, as in all cases of exercise of discretion, be exercised judicially on a proper consideration of all the relevant facts and circumstances of the case keeping in view the broad objective of the sentence. A sentence of imprisonment for life can only be substituted if the facts justify the non-imposition of the extreme penalty of the law. The Court is required to take notice of the manner, the nature of allegation and the magnitude of crime. Quantum of Punishment
48) In the facts of the present case, the convict Sartaj was known to deceased Shahzad and Rukhsana, and there was a dispute amongst them 39 with respect to Rs.50,000/-, which convict Sartaj had taken from deceased Shahzad, and when the money was not being returned, deceased Shahzad told the convict that he will make a complaint with the police that convict had stolen Rs.50,000/-. Keeping in view the above fact, convict Sartaj got infuriated and proceeded to commit murder of Shahzad, and when Rukhsana tried to save her husband, she was also murdered, and P.W.2 Khushi was also got injured in the melee. In the facts of the present case, the cause to commit murder was instant instigation, and it is not a case that convict Sartaj was a habitual criminal, and with respect to the punishment of death penalty, the above facts have to be taken into account.
49) In the facts of present case, since the convict-appellant Sartaj is not a habitual criminal and he had committed the murder on an instant instigation when deceased Shahzad had asked him to return Rs.50,000/- that convict borrowed from deceased Shahzad, and forced the convict to return Rs.25,000/- within a day, the convict got infuriated and this provoked him to commit the murder, and when Rukhsana came to save her husband, she was also attacked and she too lost her life. It has come 40 on record that Sartaj bolted himself inside the room, and he was arrested on the spot in the presence of many other witnesses. It was not a case that Sartaj had plotted the murder that he will not be caught immediately, or had tried to flee away from the place of incident.
50) In view of the above, Criminal Reference No. 04 of 2018 in respect of convict-appellant Sartaj made by the trial court so far as the confirmation of sentence of death to the convict is concerned, is answered in negative.
51) Instead of confirming the sentence of death awarded by the trial court, (in exercise of powers conferred under Section 368(a) Cr.P.C.) the sentence of death is commuted to imprisonment for life against convict Sartaj.
52) The conviction recorded by the trial court in S.T. No. 14 of 2017, under Section 302 and 307 IPC against convict-appellant Sartaj is affirmed. He is sentenced to undergo imprisonment for life with the stipulation that he shall not be entitled to premature release or remission before undergoing actual imprisonment for a period of 20 years.
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53) The conviction and sentence awarded by the trial court in S.T. No. 15 of 2017 against accused- appellant Sartaj in respect of offence punishable under Section 4/25 Arms Act, is also affirmed.
54) The other terms of sentences awarded to the convict Sartaj including fine amount and default stipulations also stand confirmed. All the substantive sentences awarded to the convict shall run concurrently.
55) The Criminal Appeals filed by the accused- appellant sartaj against the conviction and sentences awarded by the trial court in S.T. No. 14 of 2017 in respect of offence punishable under Sections 302, 307 of IPC, and in S.T. No. 15 of 2017 in respect of offence punishable under Section 4/25 of Arms Act both stand dismissed.
56) The Criminal Appeal filed by accused- appellant Sartaj in respect of offence punishable under Section 302 and 307 IPC, having been dismissed, his sentence is modified as directed in Paras 52 and 54 above.
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57) Let a copy of this Judgment be sent to the trial court with reference to its letter dated 01.12.2018, in S.T. No. 14 of 2017 and S.T. No. 15 of 2017 respectively. A copy of this judgment be also sent to the Superintendents of Jail concerned where the convict Sartaj is presently serving out his sentences, for ensuring compliance of this order. Lower court record be sent back.
______________ RITU BAHRI, C.J.
_________________ ALOK KUMAR VERMA, J.
Dt: 16TH MAY, 2024 Negi