Supreme Court - Daily Orders
Kalu Khan vs State Of Rajasthan on 10 March, 2015
Bench: Chief Justice, Sudhansu Jyoti Mukhopadhaya, Arun Mishra
1
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1891-1892 OF 2014
KALU KHAN ..APPELLANT(S)
VERSUS
STATE OF RAJASTHAN ..RESPONDENT(S)
O R D E R
1. These appeals are directed against the judgment and order passed by the High Court of Judicature for Rajasthan at Jodhpur in D.B. Criminal Murder Reference No.02 of 2013 and D.B. Criminal Jail Appeal No. 293 of 2013, dated 09.04.2014. By the impugned judgment and order, the High Court has confirmed the judgment of conviction and order of sentence passed by the learned Special Judge, Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act Cases, Sriganganagar in Original Sessions Case No. 53 of 2012, dated 07.03.2013, whereby the learned Special Judge has convicted the Signature Not Verified appellant-accused for offence under Sections 363, 364, Digitally signed by Suman Wadhwa Date: 2016.05.16 16:51:44 IST Reason: 376(2)(f), 302 and 201 of the Indian Penal Code, 1860 (for short “the IPC”) and awarded death sentence. 2 Facts:
2. The Prosecution case in a nutshell is:
On 04.05.2012, at 01:00 PM, one Devilal Meghwal(PW-1), a member of the Scheduled Caste, had submitted a written report to the Station House Officer, Police Station Lalgarh Jatan stating that on 03.05.2012, at about 8:30 AM, his grand-daughter (referred to as “the deceased” hereinafter), aged four years, had gone missing while she was on her way back home from his younger brother- Kashiram’s (PW-5) residence in the neighbourhood. He had stated that in spite of an intense search in entire village, her whereabouts could not be traced. The following day, on 04.05.2012, at about 10:00 AM, in the course of his search alongwith other members of the village, it was noticed that Jumman Khan, son of the appellant-accused, was burying something in a pit in the courtyard of his residence. On being questioned, Jumman Khan had failed to provide any satisfactory answer to his activity. Thus, dissatisfied by his suspicious response, PW-1 as well as other villagers had dug the said spot, whereat they discovered the dead body of the deceased. Thereafter, on further questioning, Jumman Khan disclosed that his father, the appellant-accused, had 3 lured the deceased into his house by offering her berries and then prompted him to commit rape on her and subsequently, himself raped her. He further divulged that since, the deceased’s physical condition was deteriorating, they killed her and concealed her dead body in the courtyard of their house.
3. On the basis of the said written report, a case was registered as FIR No. 86 of 2012 against the appellant-accused and Jumman Khan for the offence punishable under Sections 363, 364, 376(2)(f), 302, 201 and 34 of the IPC and Sections 3(2)(v) and 3(2)(vi) of the Scheduled Castes and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short, “the Act”). Thereafter, the investigating agency prepared an inquest report and recovered certain articles from the spot. The dead body of the deceased was sent for post-mortem. The post-mortem report disclosed the cause of death as extensive injuries at neck and other vital parts of the body and recorded medical conditions of having been raped before death. During the course of investigation, the appellant-accused and Jumman Khan were arrested. The investigating agency recovered the weapon of offence-an iron spade, blood 4 stained shirt of the appellant-accused, blood stained clothes of the deceased and other articles at the instance of the appellant-accused. The said articles were sealed and thereafter, sent to the Forensic Science Laboratory (for short, “FSL”) for their serological and chemical examination. The FSL Report recorded that the blood stains on the clothes of the deceased, the weapon of offence and the clothes of the appellant-accused matched the deceased’s blood samples.
4. After completion of the investigation, a police report was filed before the competent court and the case was committed to the Court of learned Special Judge, Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act Cases, Sriganganagar. The Trial Court had framed charges against the appellant-accused and Jumman Khan for commission of the offence punishable under Sections 363, 364, 376(2)(f), 302 and 201 of the IPC and Sections 3(2)(v) and 3(2)(vi) of the Act. The appellant-accused and Jumman Khan had denied the aforesaid charges and thus, the case was committed to trial.
5. It is relevant to notice that since the 5 co-accused, Jumman Khan was a juvenile at the time of commission of the offence, his case was separated and referred to the Juvenile Justice Board for further proceedings.
6. During the Trial, the prosecution examined 15 witnesses and produced 58 documents and 9 articles. PW-1 has maintained the version stated by him in the police report. One Indraj (PW-6) has deposed that on the fateful day, he had come to the house of PW-5 when the deceased was leaving for PW-1’s house which is situated at the short distance of about a bigha. He further stated that he saw the appellant-accused offering berries to the deceased and thereafter, carrying her in his lap. During cross-examination, he has stated that such instance of the appellant-accused offering berries and carrying the deceased was not objected to by him as it was a casual instance in the daily village life. The other prosecution witnesses viz, one Devilal, son of Balram, (PW-2); Shri Om Prakash (PW-4), and PW-5 are the neighbours of both- the appellant-accused and PW-1, who were also searching for the deceased. These witnesses were present during the extra-judicial confession made by Jumman Khan and have 6 corroborated the version of PW-1 as stated in the police report. Further, Dr. Prem Bajaj (PW-3), in his evidence, has explained the cause of death and injuries on the body of the deceased and corroborated the observations recorded in the post-mortem report.
7. Upon meticulous consideration of the evidence on record and the submissions made by the parties, the Trial Court has concluded that the testimonies of PW-1, PW-6, PW-2, PW-4 and PW-5 are true and reliable and that the same alongwith the evidence of PW-3, the medical report and the FSL report support the case of the prosecution. The Trial Court has noticed that the entire evidence relied upon by the prosecution is circumstantial and establishes their case on the basis of recoveries at the instance of appellant-accused, extra-judicial confession of co-accused, Jumman Khan, and evidence of PW-1 and PW-6. The Trial Court has recorded that the evidence of PW-6, which states that the deceased was last seen in the company of appellant-accused, coupled with the lack of explanation for the same by the appellant-accused in his 313 statement provide a link in the chain of circumstances. Further, that the recoveries made at the 7 instance of the appellant-accused, including blood-stained shirt, clothes of the deceased and the weapon of murder alongwith the medical evidence, testimony of PW-3 and the recovery of her dead body in the courtyard of the appellant-accused’s house clearly establish the factum of commission of rape and murder of the deceased by the appellant-accused. The Trial Court, in light of the aforesaid, has concluded that the chain of circumstances, in the backdrop of the extra-judicial confession made by Jumman Khan, evince beyond any reasonable doubt that the appellant-accused has committed the aforementioned offence under the IPC. Therefore, the Trial Court convicted the appellant-accused of the offence punishable under Sections 363, 364, 376(2)(f), 302 and 201 of the IPC. Since the charges framed under Sections 3(2)(v) and 3(2)(vi) of the Act against the appellant-accused were not proved, he was acquitted of the same.
8. Further, after affording an opportunity of hearing to the appellant-accused on the question of quantum of punishment, the Trial Court has sentenced him to undergo imprisonment for life for the offence 8 punishable under Section 364 of the IPC, rigorous imprisonment for seven years for the offence punishable under Section 363 of the IPC, life imprisonment for the offence punishable under Section 376(2)(f) of the IPC, rigorous imprisonment for seven years for the offence punishable under Section 201 of the IPC and awarded death sentence for the offence punishable under Section 302 of the IPC. The Trial Court, in its order of sentence, has noticed that the appellant-accused, who is a 'tantrik' residing in the neighbourhood of the deceased’s family and other witnesses was vested with certain trust by the members of the community and was not expected to commit acts of such depravity. Further, that the manner of commission of crime and age of the victim clearly indicate that the only punishment proportionate to the brutality exhibited by the appellant-accused would be the death penalty and relied upon the deterrent theory of punishment to classify the case as “rarest of the rare.”
9. Aggrieved by the aforesaid judgment and order, the appellant-accused filed appeals before the High Court which was heard alongwith the Death Reference under Section 366 Code of Criminal Procedure, 1973 and disposed 9 of by a common judgment and order, dated 09.04.2014.
10. The High Court has elaborately dealt with the evidence on record and extensively discussed the judgment and order of the Trial Court in order to ascertain the correctness or otherwise of the conviction and sentence awarded to the appellant-accused persons. The High Court has carefully examined the evidence on record including testimonies of the Prosecution Witnesses and recorded the finding that the said statements do not reflect any discrepancy of facts and therefore, considered them as cogent and credible evidence. Further, that the medical evidence clearly indicates the commission of rape and the murder of the deceased. The High Court records that the recovery of weapon of murder has also been established beyond any shadow of doubt and that the appellant-accused has not suggested any explanation for recovery of dead body of the deceased, the blood stained weapon of offence and the blood stained clothes from his house. The High Court has concluded that chain of circumstantial evidence, being complete and established beyond any reasonable doubt, in all certainty points towards the guilt of appellant-accused and therefore, confirmed the 10 judgment of conviction passed by the Trial Court.
11. The High Court, in respect of the quantum of sentence, has noticed that the heinous act of rape and murder committed by the appellant-accused obliterates any chance of his reformation and assigned the following reasons, in addition to the reasons recorded by the Trial Court, for affirming the death sentence of the appellant-accused:
“…Here the accused, a middle aged man of 48 years, residing in neighbourhood of the victim, working as ‘Tantrik’, kidnapped the girl and committed inhuman rape and then killed her. He also got involved his son in this crime. His entire act is a serious scar on human values. He has broken the faith of the neighbours, the faith in humanity and further he also acted against the values to nurture the relations of father and son. The accused committed murder when he was committing the serious offence of rape. The entire crime was committed outrageously while involving inhuman treatment and torture to the victim. The victim was a helpless child residing in neighbourhood of the accused. He was a person who could have been trusted being a neighbour, but he acted adversely. The heinous crime is committed 11 without any provocation and with complete cold blooded planning. The brutality on the part of accused not only pricks the judicial consciences but even conscience of the society. The facts available are sufficient to satisfy ourselves that no other punishment except death penalty would be adequate in present set of circumstances.…”
12. The appellant-accused, aggrieved by the aforesaid confirmation of death sentence awarded to him, is before us in these appeals.
13. We have heard learned amicus appearing for the appellant-accused and learned counsel appearing for the respondent-State.
14. At the outset, it is pertinent to notice that learned amicus would not press the challenge to the judgment of conviction, dated 07.03.2012, passed by the Trial Court and confirmed by the High Court, and would limit her case to the question of determination of quantum of sentence awarded by the Courts below and seek for commutation of the said sentence.
15. Learned amicus would submit that the conviction of the appellant-accused is entirely based on circumstantial evidence and therefore, the death sentence 12 ought not have been awarded by the Trial Court and confirmed by the High Court. She would submit that the circumstantial evidence where the last seen theory and an extra judicial confession of the co-accused serve as the foundation of prosecution case, though having been established and proved, could not be considered as compelling circumstances to record the crime as “rarest of the rare.” The learned amicus further submitted that there exist mitigating factors such as no criminal antecedents or being a hardened criminal and that there is scant probability of the appellant-accused to indulge in commission of such crime again and if given an opportunity, he could be reformed and rehabilitated. Further, that these circumstances weigh in favor of the appellant-accused and have not been considered by the Courts below while recording and confirming the special reasons for awarding the sentence of death. To fortify her contentions, learned amicus would place reliance upon the decision of this Court in Deepak Rai v. State of Bihar, (2013) 10 SCC 421 to reflect that even in case of heinous crimes, this Court has considered similar mitigating circumstances and taken a humanitarian 13 approach in placing the case outside the purview of “rarest of rare”.
16. Per contra, learned counsel for the respondent-State would contend that the circumstances available from evidence on record form a complete chain of facts, where no conclusion but for the guilt of the appellant-accused is possible and the Courts below have reached their respective conclusions independent of any extra judicial confession made by the co-accused, Jumman Khan. She would submit that the mere factor of conviction of the appellant-accused being based entirely on circumstantial evidence would not qualify his inhumane and dastardly act of committing rape and murder of a 4 year old child, as an act which falls short of having shocked the collective conscience of the society. Further, the learned counsel would stress that his act has caused an irreparable injury to the human and social values which render him beyond any reformation and rehabilitation, making this a case fit to be classified as “rarest of the rare” and therefore, the Courts below have rightly awarded the death sentence. In support of her case, learned counsel would draw the attention of 14 this Court to the decision in Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37, wherein in a case of rape and murder of a child of 3 years by the appellant therein based entirely on circumstantial evidence, this Court has confirmed the sentence of death awarded by the Courts below.
17. We have given our anxious consideration to the arguments advanced by learned counsel for the parties to the appeal and also carefully perused the evidence on record as well as the judgment(s) and order(s) passed by the Courts below.
18. We would not saddle the judgment with decisions reiterating the settled position of law in respect of the sentencing policy and the principles evolved by this Court for weighing the aggravating and mitigating factors in specific facts of the case. However, we would only notice the relevant observations of this Court stating the principles vis-à-vis the sentencing policy in Bachan Singh v. State of Punjab, (1980) 2 SCC 684 and Machhi Singh v. State of Punjab, (1983) 3 SCC 470. The Constitution Bench of this Court in Bachan Singh case has noted that there are as many circumstances justifying the 15 passing of the lighter sentence as there are countervailing circumstances of aggravation. It was observed that since all such situations are astrological imponderables of an imperfect and undulating social possibility, the court cannot risk adoption of a judicial formula to reach a conclusion. Having said so, the Court cautioned that Judges should never be bloodthirsty and must tread careful scrutiny such that the scope and concept of mitigating factors, especially in the cases of death penalty, receive a liberal and expansive construction in accord with the sentencing policy.
19. In Bachan Singh case, this Court has observed that in such cases the Court is principally concerned with the aggravating or mitigating circumstances connected with the particular crime under inquiry. In Machhi Singh case, a three-Judge Bench of this Court considered whether death sentence of the appellants be confirmed or not, when as a result of a family feud the appellants with a motive of reprisal, committed 17 murders in five incidents occurring in the same night in quick succession in the five neighbouring villages. While the Court sentenced some of the accused to death and the rest to imprisonment for life, it culled out the 16 following propositions as emerging from Bachan Singh 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 along with the circumstances of the ‘crime’.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances 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.”
20. Explaining the purpose behind discretion vested in the judges in our sentencing policy, this Court has observed in Shailesh Jasvantbhai v. State of Gujarat, (2006) 3 SCC 359, that generally, criminal law adheres to the principle of proportionality in prescribing liability 17 according to the culpability of each kind of criminal conduct and ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Further, this Court has noticed that for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of “really relevant circumstances” in a dispassionate manner by the Court after giving due consideration to the facts and circumstances of each case:
“11. ..Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle McGautha v. State of California, 402 US 183 that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of the crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.” 18
21. In Deepak Rai case, this Court in light of the aforesaid has noticed that only in certain exceptional cases where the crime is so brutal, diabolical and revolting so as to shock the collective conscience of the community, the award of death sentence would seem appropriate. It is because such circumstances cannot be laid down as a straight jacket formula but require case to case ascertainment, the legislature has left it open for the Courts to examine the facts of the case and appropriately decide upon the sentence proportional to the gravity of the offence. In Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546, it is observed that the nature, motive, and impact of crime, culpability, quality of evidence, socio-economic circumstances, impossibility of rehabilitation are some of the factors the Court may take into consideration while dealing with such cases.
22. Herein, the contentions put forth by the appellant-accused gravitate towards ‘quality of evidence’ as a mitigating factor, so as to indicate that the case proved entirely on circumstantial evidence must not be placed into the category of “rarest of the rare” without 19 due examination of the factual matrix. Therefore, it would be beneficial to analyse the evolving jurisprudence on this aspect.
23. In respect of award of death sentence in cases where sole basis for conviction is circumstantial evidence, this Court in Swamy Shraddananda v. State of Karnataka, (2007) 12 SCC 288, has acknowledged that such cases have far greater chances of turning out to be wrongful convictions, later on, in comparison to ones which are based on fitter sources of proof. This Court cautioned that convictions based on ‘seemingly conclusive circumstantial evidence’ should not be presumed as foolproof incidences and the fact that the same are based on circumstantial evidence must be a definite factor at the sentencing stage deliberations, considering that capital punishment is unique in its total irrevocability. Further, this Court observed that any characteristic of trial, such as conviction solely resting on circumstantial evidence, which contributes to the uncertainty in the “culpability calculus”, must attract negative attention while deciding maximum penalty for murder. This Court noticed certain decisions under the 20 American death penalty jurisprudence as follows:
“88. One of the older cases in this league dates back to 1874, Merritt v. State, (1874) 52 Ga 82 where the Supreme Court of Georgia described the applicable law in Georgia as follows:
“By the Penal Code of this State the punishment of murder shall be death, except when the conviction is founded solely on circumstantial testimony. When the conviction is had solely on circumstantial testimony, then it is discretionary with the presiding judge to impose the death penalty or to sentence the defendant to imprisonment in the penitentiary for life, unless the jury … shall recommend that the defendant be imprisoned in the penitentiary for life; in that case the presiding judge has no discretion, but is bound to commute the punishment from death to imprisonment for life in the penitentiary.”
89. Later case of Jackson v. State, (1883) 74 Ala 26 at pp. 29-30 followed the aforementioned case. [Also see S.M. Phillipps, Famous Cases of Circumstantial Evidence with an Introduction on the Theory of Presumptive Proof, 50-52 (1875).]
90. In United States v. Quinones, 205 F. Supp.
2d 256 (S.D.N.Y. 2002) the Court remarked:
“Many States that allow the death penalty permit a conviction based solely on circumstantial evidence only if such evidence excludes to a moral certainty every other reasonable inference except guilt.”
24. In Santosh Kumar Satishbhushan Bariyar v. State 21 of Maharashtra, (2009) 6 SCC 498, all the accused persons including the appellant were unemployed young men in search of employment. In execution of a plan proposed by the appellant and accepted by them, they kidnapped their friend with the motive of procuring ransom from his family but later murdered him and after cutting his body into pieces disposed of the same at different places. One of the accused persons turned approver and the prosecution case was based entirely on his evidence. The Trial Court awarded death sentence to the appellant. The High Court confirmed the death sentence. In appeal, this Court observed that punishment cannot be determined on grounds of proportionality alone. This Court observed that though there was nothing to show that the appellant could not be reformed and rehabilitated and the manner and method of disposal of the dead body of the deceased reflected most foul and despicable case of murder, mere mode of disposal of the dead body may not by itself be made the ground for inclusion of a case in the rarest of rare category for the purpose of imposition of death sentence. Other factors require to be considered along with the aforesaid. This Court was of the view that the 22 fact that the prosecution case rested on the evidence of the approver, will have to be kept in mind. Further, that where the death sentence is to be imposed on the basis of circumstantial evidence, the circumstantial evidence must be such which leads to an exceptional case. It was further observed that the discretion given to the court in such cases assumes onerous importance and its exercise becomes extremely difficult because of the irrevocable character of death penalty. Where two views ordinarily could be taken, imposition of death sentence would not be appropriate. In the circumstances, the death sentence was converted to life imprisonment.
25. This Court in Sahib Hussain v. State of Rajasthan, (2013) 9 SCC 778, has dealt with the case where the appellant-accused had murdered five persons by inflicting multiple injuries on various parts of their bodies. There was no eye witness to the incident and the prosecution had established the offences by circumstantial evidence. Such evidence included (i) post-mortem report, ante-mortem injuries memo, evidence of the doctors indicating that the death were homicidal;
(ii) extra judicial confession made by the accused to PW4 23 therein and (iii) corroborative evidence of other witnesses. The Court in light of the aforesaid and a clear motive having been established, incriminating FSL and DNA reports being on record reached a conclusion that the circumstances relied upon by the prosecution are reliable, acceptable and establish guilt of the appellant-accused. However, keeping in view the circumstances of the case, in respect of the quantum of sentence, this Court upheld the judgment and order of the High Court commuting the sentence of death awarded by the Trial Court.
26. In Sebastian v. State of Kerala, (2010) 1 SCC 58, the appellant had trespassed into the complainant’s house, kidnapped his two-year-old daughter and, after raping her, committed her murder. The Trial Court sentenced him to death, which was confirmed by the High Court. This Court considered the fact that the appellant was a young man at the time of incident and that the case rested on circumstantial evidence, and commuted the death sentence by sentence for life.
27. This Court in Sushil Sharma v. State (NCT of Delhi), (2014) 4 SCC 317 has commuted the sentence of 24 death awarded to the appellant-accused to life imprisonment. The appellant was convicted of murdering his wife and disposing of her corpse by burning it in ‘tandoor’ of restaurant. The case being entirely based on circumstantial evidence including theory of last seen together, discovery of incriminating evidence and medical evidence, while this Court reached a conclusion that the conviction requires to be upheld, it commuted the sentence, keeping in its view, the following factors and trends in sentencing policy:
“101. We notice from the above judgments that mere brutality of the murder or the number of persons killed or the manner in which the body is disposed of has not always persuaded this Court to impose death penalty. Similarly, at times, in the peculiar factual matrix, this Court has not thought it fit to award death penalty in cases, which rested on circumstantial evidence or solely on approver’s evidence. Where murder, though brutal, is committed driven by extreme emotional disturbance and it does not have enormous proportion, the option of life imprisonment has been exercised in certain cases. Extreme poverty and social status has also been taken into account amongst other circumstances for not awarding death sentence. In few cases, time spent by the accused in death cell has been taken into consideration along with other circumstances, to commute death sentence into life imprisonment. Where 25 the accused had no criminal antecedents; where the State had not led any evidence to show that the accused is beyond reformation and rehabilitation or that he would revert to similar crimes in future, this Court has leaned in favour of life imprisonment. … ***
103. In the nature of things, there can be no hard-and-fast rules which the court can follow while considering whether an accused should be awarded death sentence or not. The core of a criminal case is its facts and, the facts differ from case to case. Therefore, the various factors like the age of the criminal, his social status, his background, whether he is a confirmed criminal or not, whether he had any antecedents, whether there is any possibility of his reformation and rehabilitation or whether it is a case where the reformation is impossible and the accused is likely to revert to such crimes in future and become a threat to the society are factors which the criminal court will have to examine independently in each case. Decision whether to impose death penalty or not must be taken in the light of guiding principles laid down in several authoritative pronouncements of this Court in the facts and attendant circumstances of each case.”
28. In Mahesh Dhanaji Shinde v. State of Maharashtra, (2014) 4 SCC 292, the conviction of appellant-accused was upheld keeping in view that the 26 circumstantial evidence pointed only in the direction of their guilt given that the modus operandi of the crime, homicidal death, identity of 9 of 10 victims, last seen theory and other incriminating circumstances were proved. However, the Court has thought it fit to commute the sentence of death to imprisonment for life considering the age, socio-economic conditions, custodial behavior of the appellant-accused persons and that the case was entirely based on circumstantial evidence. This Court has placed reliance on the observations in Sunil Dutt Sharma v. State (Govt. of NCT of Delhi), (2014) 4 SCC 375 as follows:
“35. In a recent pronouncement in Sunil Dutt Sharma v. State (Govt. of NCT of Delhi) it has been observed by this Court that the principles of sentencing in our country are fairly well settled — the difficulty is not in identifying such principles but lies in the application thereof. Such application, we may respectfully add, is a matter of judicial expertise and experience where judicial wisdom must search for an answer to the vexed question — Whether the option of life sentence is unquestionably foreclosed? The unbiased and trained judicial mind free from all prejudices and notions is the only asset which would guide the Judge to reach the “truth”.”
29. In the instant case, admittedly the entire web 27 of evidence is circumstantial. The appellant-accused’s culpability rests on various independent evidence, such as, him being “last seen” with the deceased before she went missing; the extra-judicial confession of his co-accused before PW-1 and the village members; corroborative testimonies of the said village members to the extra-judicial confession and recovery of deceased’s body; coupled with the medical evidence which when joined together paint him in the blood of the deceased. While the said evidence proves the guilt of the appellant-accused and makes this a fit case for conviction, it does not sufficiently convince the judicial mind to entirely foreclose the option of a sentence lesser than the death penalty. Even though there are no missing links in the chain, the evidence also does not sufficiently provide any direct indicia whereby irrefutable conclusions can be drawn with regard to the nexus between “the crime” and “the criminal”. Undoubtedly, the aggravating circumstances reflected through the nature of the crime and young age of the victim make the crime socially abhorrent and demand harsh punishment. However, there exist the circumstances such 28 as there being no criminal antecedents of the appellant-accused and the entire case having been rested on circumstantial evidence including the extra judicial confession of a co-accused. These factors impregnate the balance of circumstances and introduce uncertainty in the “culpability calculus” and thus, persuade us that death penalty is not an inescapable conclusion in the instant case. We are inclined to conclude that in the present scenario an alternate to the death penalty, that is, imprisonment for life would be appropriate punishment in the present circumstances.
30. In our considered view, in the impugned judgment and order, the High Court has rightly noticed that life and death are acts of the divine and the divine’s authority has been delegated to the human Courts of law to be only exercised in exceptional circumstances with utmost caution. Further, that the first and foremost effort of the Court should be to continue the life till its natural end and the delegated divine authority should be exercised only after arriving at a conclusion that no other punishment but for death will serve the ends of justice. We have critically appreciated the entire 29 evidence in its minutest detail and are of the considered opinion that the present case does not warrant award of the extreme sentence of death to the appellant-accused and the sentence of life imprisonment would be adequate and meet the ends of justice. We are of the opinion that the four main objectives which the State intends to achieve namely deterrence, prevention, retribution and reformation can be achieved by sentencing the appellant-accused for life.
31. Before parting, we would reiterate the sentiment reflected in the following lines by this Court in Shailesh Jasvantbhai case:
“7. … Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of “order” should meet the challenges confronting the society. Friedman in his Law in a Changing Society stated that:
“State of criminal law” continues to be—as it should be—a decisive reflection of social consciousness of society. Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be.” 30
32. In the result, the appeals are partly allowed and the sentence of death awarded to the appellant-accused is commuted to imprisonment for life. The judgment and order passed by the High Court is modified to the aforesaid extent.
33. The appeals are disposed of in the aforesaid terms.
....................J. (H.L. DATTU) ....................J. (SUDHANSU JYOTI MUKHOPADHAYA) ....................J. (ARUN MISHRA) NEW DELHI;
MARCH 10, 2015.
31
Revised
ITEM NO.107 COURT NO.1 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 1891-1892/2014
KALU KHAN Appellant(s)
VERSUS
STATE OF RAJASTHAN Respondent(s)
(With appln.(s) for stay and office report) Date : 10/03/2015 These appeals were called on for hearing today. CORAM :
HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUDHANSU JYOTI MUKHOPADHAYA HON'BLE MR. JUSTICE ARUN MISHRA Ms. Asha Jain Madan,Adv.(A.C.) For Appellant(s) Mr.Mukesh Jain, Adv.
For Respondent(s) Ms. Ruchi Kohli,Adv.
Ms.Nidhi Jaiswal, Adv.
UPON hearing the counsel the Court made the following O R D E R Appeals are partly allowed and disposed of and the sentence of death awarded to the appellant-accused is commuted to imprisonment for life, in terms of the signed order.
(G.V.Ramana) (Vinod Kulvi)
Court Master Asstt.Registrar
(Signed order is placed on the file)
32
ITEM NO.107 COURT NO.1 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 1891-1892/2014
KALU KHAN Appellant(s)
VERSUS
STATE OF RAJASTHAN Respondent(s)
(With appln.(s) for stay and office report) Date : 10/03/2015 These appeals were called on for hearing today.
CORAM :
HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUDHANSU JYOTI MUKHOPADHAYA HON'BLE MR. JUSTICE ARUN MISHRA Ms. Asha Jain Madan,Adv.(A.C.) For Appellant(s) Mr.Mukesh Jain, Adv.
For Respondent(s) Ms. Ruchi Kohli,Adv.
Ms.Nidhi Jaiswal, Adv.
UPON hearing the counsel the Court made the following O R D E R Sentence is reduced from death penalty to life imprisonment.
Appeals partly allowed.
Reasons to follow.
(G.V.Ramana) (Vinod Kulvi) Court Master Asstt.Registrar