Delhi District Court
State vs (I) Ravi Kant Sharma S/O Sh. J.D. Sharma on 24 March, 2008
IN THE COURT OF SH. RAJENDER KUMAR SHASTRI, ADDITIONAL
SESSIONS JUDGE : KARKARDOOMA COURTS: DELHI.
S.C. no.14/06
FIR No.21/99
U/s 302/120-B/34 IPC etc.
PS Mandawli
State Vs (i) Ravi Kant Sharma s/o Sh. J.D. Sharma
(ii) Sri Bhagwan Sharma s/o Sh. Onkar Sharma
(iii) Satya Prakash Sharma s/o Sh.Rattan Lal
(iv) Pradeep Sharma s/o Sh.Amrish Dev Sharma
Present:-Sh.S.K.Saxena, Special Public Prosecutor with
Mrs. Manisha Sharma advocate for State.
All convicts in person.
Sh.S.P.Minocha advocate for convict Ravi Kant
Sharma.
Sh.S.P.Ahluwalia advocate for convict Sri Bhagwan.
Sh.R.S Malik advocate for convict Satya Prakash.
Sh.D.B.Goswami advocate for convict Pradeep.
ORDER
1. Accused R.K.Sharma, Pradeep Sharma, Satya Prakash and Sri Bhagwan have been convicted by order/judgment of this court dated 18.03.08 for offence punishable u/s 120-B r/w section 302 IPC.
2. Heard on point of sentence.
3. Ld. Special Public Prosecutor beseeched a death penalty for accused R.K.Sharma and Pradeep Sharma and life imprisonment for other convicts alleging that it was accused Pradeep Sharma who killed the deceased for the cause of R.K.Sharma. As per Ld Public Prosecutor, it was an act of extreme brutality and hence both of these convicts deserve an extreme penalty i.e death sentence.
4. On the other hand, in the opinion of Ld defence counsels, it was not 'a rarest of rare case' in which death penalty can be imposed. Sh. Minocha contended that in every case of murder some brutality is bound to occur. Manner in which deceased in this case was done to death was not so brutal, which could shock the conscience of society. Both i.e Ld SPP as well as Ld defence counsels relied upon two cases decided by the apex court titled as Machi Singh Vs State of Punjab (1983) 4 SCC 470 as well as Bachan Singh Vs State of Punjab AIR 1980 SC 898. Following guidelines were given by the apex court in former case, to determine rarest of rare case:-
(i) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.
(ii) When the murder is committed for a motive which evinces total depravity and meanness; e.g' murder by hired assassin for money for reward or a cold blooded murder for gains of a person vis-a-vis whom the murdered is in a dominating position or in a position or trust, or murder is committed in the course for betrayal of the motherland.
(iii) When murder of a member of a Scheduled Caste or minority community etc is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of ''bride burning'' or ''dowry deaths'' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
(iv) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
(v) When the victim of murder is an innocent child, or helpless woman or an old or infirm person or a person vis-a-
vis whom the murderer is in a dominating position or a public figure generally loved and respected by the community. And in Bachan Singh's case (SUPRA) the Supreme Court enumerated aggravating as well as mitigating circumstances to be seen by the court. Same are reproduced as under:-
AGGRAVATING CIRCUMSTANCES :-
(a) if the murder has been committed
after previous planning and
involves extreme
brutality, or
(b) if the murder involves exceptional
depravity, or
(c) if the murder is of a member of
any of the armed forces of the
Union or of a member of
any police
force or of any public servant and
was committed -
(i) while such member or public
servant
was on duty, or
(ii)in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member of public servant, as the case may be, or had ceased to be such member or public servant, or
(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973 or who had rendered assistance to a Magistrate or a police officer after demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code."
MITIGATING 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 acts of 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) & (4) above.
(5) That in the facts and circumstances
of the case, the accused believed
that he was morally justifying 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."
5. By a catena of authorities, it has well been
established that death penalty can be imposed only in 'rarest of rare case'. It was also reminded by my Lords Justice Manmohan Sarin and Justice Rekha Sharma in case State Vs Atbir and Others 2006 1 AD (Delhi) 665 that for the offence of murder, life sentence is the normal rule while death sentence, an exception to be imposed in rarest of rare case.
6. Rule 1, Chapter 19, Volume III of Delhi High Court Rules gives some guidelines in determining sentence to the offenders. Same runs as :-
" The award of suitable sentence depends on a variety of considerations
-The determination of appropriate punishment after the conviction of an offender is often a question of great difficulty and always requires careful consideration. The law prescribes the nature and the limit of the punishment permissible for an offence, but the Court has to determine in each case a sentence suited to the offence and the offender. The maximum punishment prescribed by the law for any offence is intended for the gravest of its kind and it is rarely necessary in practice to go up to the maximum. The measure of punishment in any particular instance depends upon a variety of considerations such as the motive for the crime, its gravity, the character of the offender, his age, antecedents and other extenuating or aggravating circumstances, such as sudden temptation, previous convictions, and so forth, which have all to be carefully weighed by the Court in passing the sentence." .
7. I remember Writers Ratan Lal and Dhiraj Lal mentioning in 'Law of Crimes' 'a commentary on The Indian Penal Code, 1860' '26th Edition' It (to award sentence) is the most difficult problem a judge has to face and is known as the 'Judge's Dilemma'. There is no mathematical formula to determine a just and wise sentence. A Judge has to weigh several circumstances; was the offence primarily directed against person or property ? What was the motive for the offence Political, economical, sexual? Was it vengeance? Was it provoked? Was it sudden or was it pre-meditated?
Will a sentence of imprisonment have a wholesome effect or a deletirious effect? Is the offender a person perpetually and constitutionally at war with society, or is he a person patently amendable to reformation? Will a sentence of imprisonment deter him and discipline him from crime or will it launch him on a career of crime. Once it had been diagnosed as a disease, the whole approach towards the criminal underwent a sea change and radical approach, analogous to treatment of disease emerged.
8. Ld Writers felt that:-
No clear cut and precise approach has developed on the aims of punishment. Many competing theories, complicated ideas and even occasionally inconsistent approaches, jostle together in the mind of a Judge when he sentences the criminals convicted in his Court. Though there are several theories prevalent about punishment,retributive, deterrent, reformative, denunciatory, etc. In actual practise no single theory holds the field. Neither the penal code nor any of the other penal laws in force in the country owe exclusive allegiance to any single theory. The imposition of death penalty for murder is partly retributive, partly deterrent and partly denunciatory -------. The civilised society today has more or less eschewed retribution as an aim of punishment. Over a period, it has been realised that retribution cannot solve the urgent problem of reduction of crime-------------------------. A disproportionately heavy sentence unrelated to the gravity of the offence proved is likely to be interfered with as violative of Article 14 of the Constitution by invoking the principle that not only it is arbitrary but it denies equal protection of laws. Let it be remembered that convicts and prisoners are not wholly denuded of their fundamental rights. Prisoners are entitled to all constitutional rights unless their liberty has been constitutionally curtailed. Any theory of punishment must fit in with the liberatarian principle of the Constitution.
9. The Writers have referred a case Charles Sobhraj Vs Superintendent, Central Jail, Tihar AIR 1978 SC 1514 observing that deterrence, both specific and general, rehabilitation, reformation and re-absorption in the society are vital considerations for punishment. Compassion, wherever possible, is the art of correctional confinement. It was also mandated by the apex court in case Ram Narain Vs State AIR 1973 SC 2200 that a sentence to be the appropriate should be neither too harsh nor too lenient.
10. Reminding purpose of punishment, it was held in case Modi Ram Vs State AIR 1972 SC 2438 that the sentence should bring home to the guilty party the consciousness that the offence committed by him was against his own interest and also against the interest of the society of which he happens to be a member. The same court (The Supreme Court of India) in Bachan Singh's case (SUPRA) held that the present legislative policy discernible from section 235(2) Cr PC read with section 354 (3) Cr PC is that in fixing the degree of punishment or making the choice of sentences for various offences including one under section 302, the court should not confine its consideration principally or merely to the circumstances connected with particular crime but also give due consideration to the circumstances of the criminal.
11. Let I weigh the circumstances of this case as well as of convicts to determine as to whether latters deserve the extreme penalty of death.
12. Convict R.K.Sharma is a Senior IPS officer. It is told to the court that same has served United Nations Organization (UNO), Interpole, Prime Minister's Office and C.B.I apart from other postings. He has rendered distinguished services. What to say of blemish record, he earned appreciation during his tenure everywhere. He is one of most senior police officers in his cadre State and was eligible to hold the highest police post in that State. Even as per prosecution, convict R.K.Sharma thought of eliminating the victim, enraged by the latter's threatening to expose him to the public. Both of them despite being already married to persons other than themselves, had developed an intimacy which was not acceptable to our society.
13. I agree with Sh. Minocha advocate stating that in every case of murder some degree of brutality is bound to occur. No doubt, the murder in itself is an abominable and heinous crime, offender of which can never be pardoned but offence under consideration was not of that ilk which could shock the conscience of society. At the same time, I am not inconsonance with Ld SPP labeling said convict as a danger to the society. Except for crime in question, R.K.Sharma was an asset to this nation.
14. Cogitating circumstances of case and distinguished services which the convict was rendering to our country, it blows my mind, will it be a condine punishment for such a wrong doer, to dump him in jail till he breathes his last (life imprisonment). To grant a pardon or to retrieve the sentence is discretion of the executive, same cannot be taken for granted. A natural corollary of incarceration in jail is deprivation of personal liberty of subject. A life devoid of these fundamental liberties is nothing more than an animal existence. What to say of giving chance to improve himself, the prisoner will have hardly any occasion to interact with people outside his cell. It will indeed be a dead stop of his public life.
15. Does he deserve such retributive sentence? What should be an appropriate punishment in such cases, is for the people of this country or for the legislators who are mouthpiece of these masters of democracy, to decide. Any opinion expressed by this court may not amount poking of its nose in others field. This court is bound by law passed by them and have no option but to award at least the minimum punishment prescribed by law.
16. So far as convict Pradeep Sharma is concerned, same appears to be a distracted youth. As disclosed by Ld defence counsel, he was an unemployed and poor person. May, allured by the promise of restoration of his job in Haryana Urban Development Authority (HUDA) or by cash (though not proved on file), he was impelled to do wicked act of killing a person. Though this person (Pradeep Sharma) has already been convicted in a case of cheating, same was not such a crime, making him a danger to the society. Antecedents and circumstances of this convict also do not warrant awarding of maximum sentence of death.
17. Considering all these, I sentence all four convicts to imprisonment for life. Convict R.K.Sharma is also directed to pay fine of Rs.20,000/- while other convicts a sum of Rs.10,000/- each. In default of payment of which, all of them are to undergo six months Simple Imprisonment more.
18. Copies of judgment have already been provided to all of convicts. A copy of this order be also given to them free of cost.
Announced in the open court today (Rajender Kumar Shastri) i.e on 24th day of March, 2008. Additional Sessions Judge, Karkardooma Courts, Delhi