Karnataka High Court
State By Piriyapatna Police vs Mota Alias Motta S/O Madiah And Anr. on 25 August, 2000
Equivalent citations: 2000CRILJ4414, 2000 CRI. L. J. 4414, 2000 AIR - KANT. H. C. R. 39, 2001 ALLMR(CRI) 1971, (2001) 5 SUPREME 233, (2001) 3 CRIMES 311, (2002) 2 ALLCRIR 1935, (2001) ILR (KANT) (1) 1413, (2001) 2 CURCRIR 289, (2001) 2 ANDHLT(CRI) 153
Author: B.N. Mallikarjuna
Bench: B.N. Mallikarjuna
JUDGMENT M.F. Saldanha, J.
1. An incident of horrifying dimensions took place on the night between 24th and 25th April 1992 at Chinnakkal, Kevalur village in Piriyapatna taluk, Mysore district wherein five human beings were hacked to death in the most savage and blood curdling manner along with a poor goat which was also tied there, which only heightens the intense brutality with which the incident was committed. It was alleged that the two accused who are brothers and aged hardly 20 and 22 years respectively at that time had initially entered the hut of deceased Chothaiah @ Thimmaiah and attacked him so savagely that his head was almost separated from the body. Thereafter the two accused are alleged to have entered the hut of Shettaiah @ Muthaiah and perpetrated a similar assault on him, but in this case, the injuries were very similar to the injuries inflicted on the previous victim. The next target of the accused was the wife of Muthaiah who is PW-18 Madamma. In this case, she was assaulted with a club on her face and the upper part of her body, but for some reason, she was not killed. The granddaughter Muthi however was not so fortunate because even though she was a girl aged hardly 15 years, she was attacked and beheaded . The prosecution alleges that Nagaraj son of Muthaiah who came there hearing the commotion turned out to be the next victim who was also beheaded. The last of the victims was Chotiah who was also beheaded. In between these attacks, it is alleged that the accused turned their fury on a goat that was tied there which was also attacked with the machus and the goat died on the spot. It is the prosecution case that the two accused who were armed with machus, M.Os. 4 and 5 thereafter made their way towards the hills and forests. Madamma narrated what had happened to PW-1 the next morning and PW-1 in turn lodged a police complaint which has been treated as the F.I.R. It is the prosecution case that the two accused were thereafter cited by PW-7 who in turn apprehended accused-2 and accused-1 had also accompanied him. The two accused were apprehended by the villagers PW-15 and others who tied them up and the Investigating Officer-PW-38 states that when he arrested the accused, they had bloodstained clothes on their persons.
It is also the prosecution case that pursuant to the accused making certain statements that the accused led the panchas to a place from where the two machus were produced by them, as also the club that is alleged to have been used for assaulting PW-18. On completion of the investigation, the accused were charge-sheeted and were ultimately put up for trial in the Court of the Ist Addl. Sessions Judge, Mysore in Sessions Case No. 77/1992. Having regard to the complexion of the offences alleged against the accused there were a host of subsidiary charges other than Section 302 r/w Section 34 IPC in respect of each of the five murders and the learned trial Judge at the conclusion of the trial convicted both the accused for all the offences that they stood charged. For the offences punishable Under Section 302 IPC, they were sentenced to RI for life and as regard the charge under Section 448 r/w 34 IPC, they were awarded a sentence of RI for one year, for the offences punishable under Section 326 r/w 34 IPC, they were awarded a sentence of RI for six months and a fine of Rs. 500/- each, for the offences punishable Under Section 429 r/w 34 IPC, they were awarded a sentence of three months', RI each, substantive sentences to run concurrently. The two accused have preferred Crl. Appeal No. 975/96 which is directed against their conviction and this being a jail appeal and a case of some seriousness, the learned senior advocate Mr. M. V. Devaraju has been appointed as Amicus Curiae to conduct the appeal on their behalf. The State of Karnataka has preferred Crl. Appeal No. 967/96 whereby it has been contended that this is a case which eminently deserves enhancement of sentence and that the learned trial Judge ought to have awarded capital punishment. The two appeals have been heard together and we propose to dispose of them through a common judgment.
2. At the very outset, Mr. Devaraju raised a preliminary objection. His contention was that the prosecution has alleged that five murders have been committed by the accused and furthermore, he points out that it is the prosecution case that these five murders come under three different groups or heads in so far as they are alleged to have been committed at three separate spots. He therefore submits that a single trial for these offences is impermissible. He has relied on the provisions of Section 218 Cr.P.C. and he contends that in respect of each of the separate charges, there ought to have been a separate trial. Obviously anticipating the defence to this submission from the other side, the learned counsel contended that prejudice is manifest to the accused if the various offences are grouped together because the complexion of the entire incident gets completely altered and it is his submission that the damage to the defence is very substantial. The learned SPP has countered the submission by pointing out that the incident has taken place within a short span of time on the same night virtually in the huts that were next to each other and that they formed a series of connected acts and that therefore, having regard to the provisions of Sections 215 and 200 Cr.P.C. that it was perfectly permissible to try the offences in one and the same case. Learned counsel has also submitted that when prejudice is alleged, it must be demonstrated to be real and substantial and not something that is imaginary. He submits that irrespective of whether one trial was held or five trials were held, that the facts relating to what transpired on that night would be narrated and common evidence would be led and that under these circumstances, it is absurd to argue that the Court would get prejudiced merely because there is reference to more murders than one. We are in total agreement with what is pointed out by the learned SPP because the law itself makes specific provision for a single trial in incidents of this type. He is right when he points out that the time frame, the place where the incidents were committed, the rapidity with which one after the other and above all, similarity with which the acts were repeated, would certainly indicate that they are all virtually interlinked and come within the frame work of one transaction. Moreover, where each of the incidents is gory in itself and where in any one of the trials the facts are related, the complexion of the case is no different to a situation wherein separate trials are held. In fact, the learned counsel demonstrated to us that quite apart from the immense waste of judicial time that if one were to talk of prejudice, the situation would be far worse if the trials had to follow each other and that in a consolidated trial, the accused would certainly be better off. We are unable to read even the slightest prejudice that has occurred to the accused and having regard to the clear cut position in law, the objection that has been pleaded is overruled. We need to add here that the Criminal Procedure Code itself makes a distinction between irregularities and illegalities, the first of them are capable of being corrected and it is only in the second set of situations that the trial would be vitiated. In this instance, we do not even need to go into any such distinctions because we have already held that the answer from the learned SPP more than nullifies the objections.
3. Mr. Devaraju thereafter took us through the major heads of evidence. He first dealt with the evidence of PW-1 Kariyappa who is the complainant. His contention is that this witness has only relayed to the Police whatever PW-18 told him and that too, whatever she conveyed to him on the morning after the incident. Two submissions were canvassed, the first being that whereas the incident took place somewhere around midnight, that the F.I.R. has been lodged with the Police after a delay of several hours and secondly that this is virtually a second-hand communication because Kariyappa is only a messenger not having been anything himself. The learned SPP has pointed out to us that the law takes a serious note of delays provided there is no valid explanation but more importantly, in cases of this type, if the situation gives rise to suspicion in so far as there is reason to believe that during intervening period, the aggrieved or interested persons have met and conspired for purposes of falsely implicating one or more persons. He points out the, remote location of the village in this case, the nature of the incident, the fact that PW-18 Madamma herself was injured and that as soon as she has conveyed the information to PW-1 he has made his way to the Police Station and lodged the complaint. We do not see any justification for making any grievance with regard to the delay because the complaint had been lodged within the earliest possible time having regard to the overall situation. As regards the second aspect of the matter, the learned SPP is again right in so far as he points out that PW-18 Madamma was injured apart from which, she has lost her husband, son and grand-daughter on the previous night, she was an old lady of 65 and in this background it would be unreasonable to expect her to make her way to the Police Station which was a long distance from that spot. Also, having regard to the fact that it was a remote village, she has done the next best thing in conveying the information to PW-1 and he in turn has straightway communicated it to the Police. More importantly, what the learned SPP demonstrated to us is that if one were to cross check the details of the incident from the other material on record that it will be found that the FIR is a correct summary of what has transpired on that night. He submits that in this background, the criticism levied vis-a-vis, the evidence of PW-1 and the FIR are totally unjustified. Again, we have no hesitation in accepting the submission because it represents the correct position in law but more importantly, that on the facts of the present case, there is no ground for us to find any fault with this material.
4. Coming to the evidence of the eyewitnesses, PWs-4, 6, 8, 18 and 25, we propose to make one general observation. We shall deal with some of the special areas of challenge, but, what we need to point out is that all these persons are residents of that hamlet. They were living in close proximity of each other, they knew each other, they knew the deceased and above all, they knew the accused. These are certain broad features of the case and we need also to point out that the learned SPP was quick to also add that this is one of the cases in which the defence has not even attributed any enmity or hostility to the witnesses nor is that even a suggestion that for any extraneous reasons they have falsely implicated the accused. Invariably, in criminal cases, material is adduced to indicate some sort of animus between the witnesses and accused whereas this case is unique in so far as no such animus is either alleged nor has it been established. As we shall point out subsequently, this was one of the strongest grounds on which the learned SPP vehemently submitted that this is virtually a shut case and having regard to the horrifying dimensions of the incident that it eminently calls for the imposition of the death sentence. On the aspect of the punishment, there had been very lengthy arguments canvassed on both sides and we shall deal with that aspect of the matter separately, but we have made this general observation with regard to the general character of the ocular evidence before dealing with some of the individual heads of challenge.
5. It is unnecessary for us to reproduce in detail the individual evidence of each of these witnesses. All of them claim to have seen the murders taking place or in other words, they claim to be eye-witnesses though there is a slight controversy as far as PW-4 and PW-25 are concerned, on the question as to whether PW-25 can be termed as an eye-witness because on his own admission, by the time he came there the first murder had already taken place. This being a minor head of controversy, we shall dispose of the debate very briefly. Whereas Mr. Devaraju submitted that this evidence is of no avail as far as the first murder i.e., that of Chotaiah is concerned, the learned SPP submitted that it is of immense importance because it not only supports but fully corroborates the evidence of PW-4. His submission is that it makes no difference whether PW-25 witnessed the actual killing or whether he came there immediately thereafter, because he is very clear about the fact that he saw the two accused in the hut of the deceased armed with machus and there was nobody else at that time. There is much substance in this submission because we have the clear cut evidence of PW-4 who states that he has identified the accused as the assailants and that he is an eye-witness to the incident. This evidence has withstood the test of cross-examination and so as the evidence of PW-25 is concerned, in our considered view, the learned trial Judge was more than fully justified in accepting this evidence and in holding that the involvement of the two accused in the first of the five murders is fully established.
6. As far as the remaining incidents are concerned, we have on record the evidence of PWs-6, 8 and 18 not to mention the evidence of the earlier witnesses PWs-4 and 25. The murders have taken place one after the other and the narratives generally fall in line. Mr. Devaraju did analyse the evidence virtually with the precision of a fine tooth comb and did demonstrate to us that there are minor variations between the inter se versions as put forward by these witnesses. His submission was that if the incidents have taken place in close succession and if the witnesses have all seen exactly the same incidents that there is no ground for dissimilarity in the narrative and his submission was that this is a ground for suspicion, in so far as it does appear that the witnesses were tutored that in reproducing what they were asked to say, that their versions have differed. Again, the learned SPP has pointed out to us, and perhaps with considerable justification, that the ages of each of these witnesses is different, that they are rustic villagers and that the exact points of time and the exact spots from where each of them saw the incidents and what they did see differs and what he points out is, that despite all of these, that if one were to take the broad and basic pattern of the evidence of these witnesses that there is an aroma of truth about what is stated because irrespective of their poverty and their lack of literacy that the versions broadly tally. He has laboured considerably to demonstrate this last aspect of the matter to us because he has vehemently refuted the contention that the incident must have taken place at dead night and under a veil of darkness and that the villagers with their own ingenuity and with the assistance of police have re-created the incident and have implicated the accused. His contention was that the Court must apply the test firstly of whether the defence has brought anything on record to doubt the fact that the accused were known to the witnesses and that there was sufficient light for them to see each part of the incident. The learned SPP is right here because each of the witnesses specifically mention that there was a light source and the defence has not disputed this. The defence has also not disputed the fact that the accused were known to the witnesses. Also, we need to take note of one another aspect of the matter namely that in the absence of any animus that is alleged, the evidence which otherwise is of a sufficiently satisfactory calibre cannot be either faulted or disputed in law.
7. This being a case in which there is an appeal for enhancement, we have not only heard the learned Advocates on both sides at great length, but we have also read and reread not only the record but also the reasoning and the findings that are incorporated in the judgment under appeal. We have independently applied our minds to the record of this case and we have no hesitation in upholding the contention raised on behalf of the prosecution that the credibility of the evidence cannot be disputed nor can the quality of the evidence be found fault with because the learned SPP is right when he points out that irrespective of minor variations which are understandable, that the broad perspective of the evidence represents uniform consistencies. We have adopted our own method of scrutiny in so far as, additionally we have applied the well-known test while appreciating this head of evidence for purposes of ascertaining as to whether the minor variations pointed out by Mr. Devaraju would reduce the quality of the evidence or enhance it We hold that the latter is the case because if at all the witnesses had not seen the incident and were tutored or were fabricating, having regard to their background and intellectual levels and the lack of literacy, they would certainly have faulted very seriously because they have given evidence more than three years after the incident and have been cross-examined rather searchingly and at some length. On the contrary the minor infirmities, as rightly pointed out by the learned SPP, only adds to the quality of truth because it clearly demonstrates that the witnesses are also human beings who are describing the incident in keeping with their own individual capacities. In sum and substance, therefore, we have no hesitation in confirming the findings recorded by the learned trial Judge with regard to the prosecution evidence in this case.
8. There is however one serious head of criticism which requires to be dealt with separately because it has raised a controversy of some dimensions between the two learned counsel. Mr. Devaraju demonstrated to us that possibly the most important witness in this case is PW-18 Madamma. She is closely related to four of the victims and was residing in the hut where some of the incidents took place and there is no doubt about her presence because she herself had received certain injuries. Firstly, Mr. Devaraju pointed out to us that PW-18 has very clearly stated that the 2 murder weapons used by , the accused M.Os. 4 and 5 were picked up from her hut and she has even gone to the extent of identifying them as being among the four machus which her husband had occasion to use in connection with his work. What Mr. Devaraju points out is that PW-18 does not stop here, because she also states that these two weapons were found thrown outside her hut in the morning. The submission is that the whole of the prosecution case will have to be rejected because the crucial evidence with regard to two of the murders that have taken place prior to the accused entering the hut of PW-18 cannot be explained if the weapons were picked by the accused for the first time when they came to the hut of PW-18. Also, what Mr. Devaraju points out is that there is the recovery evidence as far as M.Os. 4 and 5 are concerned and this is one of the circumstances that seriously implicates the accused. He points out to us that if PW-18 is believed that it is very clear that the evidence relating to recovery i.e. PWs-14 and 38 are both unacceptable one find conversely that if the evidence relating to the recoveries is accepted by the Court principally because there is strong evidence from the Investigating Officer PW-38 in this regard, that necessarily, the evidence of PW-18 has to be discarded. One more head of attack and that top a serious one has been presented in so far as it is pointed out that PW-18 had sustained four injuries out of which three are possibly by a stick but injury No. 2 is an incised wound which could have only been caused by a sharp cutting instrument. The case of PW-18 is that she was assaulted only by accused No. 2 and that too with a club and that neither of the accused used the machus against her. Mr. Devaraju submits that on this ground alone, the evidence of PW-18 would have to be totally discarded and he further submits that in so far as this evidence is inextricably linked to the evidence of the remaining eye-witnesses, that a grave and serious doubt is cast with regard to the prosecution evidence all of which would have to be ultimately rejected.
9. The learned SPP has explained to us that PW-18 has corrected herself in the re-examination, but he submits that if one looks at her evidence in totality, it will be clear that she has definitely made a mistake. He was also quick to submit that there is no interconnection between the evidence of PW-18 and that of the remaining eye-witnesses and that even if the evidence of PW-18 were to be excluded in totality, that the conviction is still sustainable on the basis of the remaining material which is more than sufficient to establish the charges. We do concede that there is some infirmity in the evidence of PW-18 but having regard to the fact that she was aged about 65 when the incident took place that she was injured herself and has been a witness to such traumatic events on that night, we do not rule out the possibility of slight error. It is very clear to us that there is reliable material on record to indicate that the accused had come there armed with the machus and that there was no need or occasion for them to pick up any weapons from the house of PW-18. Even as regards the question as to whether the murder weapons were deposited outside the hut of PW-18, she has corrected herself by pointing out that the accused ran away with the weapons in their hands. This situation would therefore not in any way infringe upon the credibility of the evidence relating to the recovery of the weapons and we are therefore unable to uphold the contention canvassed by Mr. Devaraju in this regard. On the question of the injuries, the learned SPP again points out and perhaps understandably, that some assault on PW-18 has taken place as is evident from the injuries on her. Whether in the course of these assaults, the accused who were armed with sharp weapons could have incidentally used one or more of them, cannot be ruled out in so far as the incident was one of very short duration. The other explanation is that the evidence of the Doctor is only the opinion evidence. Medical jurisprudence infact very clearly indicates that on certain parts of the body such as the face, head, etc., a sharp blow with a hard and blunt instrument could split the skin in such a manner as to give the complexion of an incised wound. In any event, nothing much turns on these rather insignificant aspects of the case, because the broad spectrum of the evidence is so very satisfactory that we do not see much to weed out in any way by what is pointed out. Again, there is much justification in the last argument that the learned SPP advanced, namely, that this is not a single witness case nor is PW-18 the sole foundation of the prosecution evidence and that even if one were to theoretically set aside this evidence, that there is more than enough material of a credible nature on record to establish the charges.
10. The only two other heads which we propose to deal with in passing is the evidence with regard to the arrest of the accused. While dealing with the evidence of PW-7 and PW-15, Mr. Devaraju submitted that it is absolutely within the realm of a fairy tale. He was extremely critical of this evidence because he submitted that if the two accused had killed as many as five persons on the previous night, they would not be wandering with bloodstained clothes on their persons and it is even contended by PW-7 that A-2 was trying to wash his shirt in the stream nearby. Moreover, Mr. Devaraju points out that if the accused had committed five murders and PW-7 decided to apprehend them because of their bloodstained clothes that they were two against one and they would have most certainly either attached him of or run away from the spot. He is extremely critical of the last aspect of the evidence, namely, that PW-7 is supposed to have apprehended A-2 and A-1 is supposed to have meekly walked back to the village with the two of them. Learned counsel submits that this evidence is absolutely incredible and that it is impossible to accept such a version. The real difficulty is that we do not really know as to how prescisely PW-7 was able to apprehend the accused Nos. 1 and 2, but it is obvious that he either used force or the possibility that he could have used more discreet or persuasive methods but we have clear cut evidence on record again from PW-15 that the two accused were in fact caught by the villagers and ultimately tied up. This is again corroborated by the evidence of the I.O. PW-38 who states the two accused had been tied up by the villagers and were handed over to him and that they had bloodstained clothes on their persons when they were arrested by him. This evidence is more than conclusive and it is also extremely incriminating as far as the accused are concerned for certain special reasons. These have been highlighted by the learned SPP when he demonstrated to us that the news of the incident must have spread like wild fire in that area in no time and that this was the reason why PW-7 immediately apprehended the accused when he saw them and the reasons why the villagers also tied them up. He also points out that it was in close proximity of time being just a few hours after the incident, that it was also close to the area where the incident took place and furthermore, what is significant is that none of these witnesses state that the accused put up any resistance nor did they point that they had been falsely implicated. It is true that unfortunately there is no adequate forensic evidence in so far as even though the clothes are established to have been stained with blood, that there is no analysis done to link up the blood with that of any of the murdered persons. This, however, is not necessary because the presence of blood alone is sufficiently incriminating having regard to the background of the case and the other unimpeachable evidence.
11. The last head of evidence is with regard to the recovery of the weapons M.Os. 4, 5 and 6. As far as these heads are concerned, Mr. Devaraj did submit that these are weapons which are commonly used and which are found in the houses of everyone of the villagers that there is no forensic evidence to definitely identify the M.Os. 4, 5 and 6 as being the very weapons used in the commission of the offence because none of them were either blood stained nor has the blood been analysed. If this last factor had been present, it would have only strengthen the prosecution case but even in the absence of this, it does not weaken the prosecution case. The evidence of recovery of weapons provides a strong nexus between the accused and the witnesses and this is a case in which there is satisfactory evidence of recovery. This evidence has been disputed by the defence but not with any success. The learned trial Judge has accepted this evidence and used it as a strong circumstance against the accused. We have re-examined this head of evidence and we have tested it from the point of view of the injuries inflicted and we have no hesitation in holding that the findings of the trial Court with regard to this head of evidence are absolutely and fully justified.
12. In conclusion, therefore, as far as the Crl. Appeal No. 975/96 filed by the accused-appellant is concerned, we see no ground to interfere with the conviction that has been recorded against them. We, however, need to classify that one of the finer points of the case was brought to our notice by the learned SPP namely that even though there is one trial since the law permits it, that this is a case in which the lives of five human beings and one goat have been taken for which there are separate charges as pointed out by us and each of the charges are framed under separate heads and the accused have been convicted under everyone of the charges that has been framed.
13. As indicated by us earlier, the Crl. Appeal No. 967/96 has been preferred by the State and the learned SPP has advanced his submissions in support of this appeal in the background of his basic premise that he has succeeded in establishing to the satisfaction of the Court that this is one of those few instances where there is what he terms as "a cast iron case against the accused." His contention was that unlike some of the situation in which the conviction does result because there is overwhelming evidence on record, but there are still some grey areas in the case, that this is a prosecution in which there is not even an iota of any doubt with regard to even the minutest detail. Starting from this premise, the learned counsel submitted that the law is required to be applied with a degree of correctness and rectitude. He prefixed his argument by pointing out to us that as experienced as a senior counsel he is very conscious of his responsibilities and that having evaluated the facts of the present case very carefully, that he has no hesitation in submitting that this case comes within the category of rarest of rare cases and that a sentence of capital punishment is more fully justified.
14. Mr. Devaraju sought to bring a distinction between the assaults attributed to accused No. 1 and accused No. 2 and he was keen to point out to us that the attacks in all the instances except the stick attack on PW-18 have been attributed to accused No. 1 who yielded the machu and that even though the accused No. 2 is alleged to have been present and is alleged to have shared the common intention as the participant, that the real gravity of the charges devolve on accused No. 1. His submission was therefore that even in the matter of punishment, a distinction should be made between the two accused. Very rightly the learned SPP pointed out that the law does not permit this in so far as where the facts unmistakably demonstrate from beginning to end that Accused No. 2 was present, that he was armed with a machu, that he was virtually as much participant in everyone of the incidents as accused No. 1 and that also, one of the witnesses namely PW-4 very clearly mentions that one of the victims was caught hold of by A-2 that it would be impermissible to draw any distinction. This is the correct position in law and even as far as the facts go, we have no hestiation in holding that the two accused shared the common intention and acted in furtherance thereof and the level of participation of accused No. 2 was so complete that we have no hesitation in holding that if at all accused No. 1 missed or failed in any of the attacks that accused No. 2 would have completed the job. In this view of the matter, the law prescribes the same sentence to all the participants who shared the common intention and consequently, it is not permissible to draw any distinctions and award lesser punishment to A-2.
15. The learned SPP virtually recreated the horrifying incident in the course of his arguments by referring to the various facts and circumstances of the case and we also have on record some of the photographs that had been exhibited. The learned counsel stated that this is a case that is characterized by consistent and abnormally high levels of cruelty and brutality and in support thereof, he pointed out to us the manner in which the weapons were used as is evident from the fact that some of the victims were completely beheaded and the remaining victims were partially beheaded. Secondly what he demonstrated to us was that this is a case of systematic and consistent and savage brutality in so far as there was a time lag between the killings and they have been carried out in a manner that betrays increasing levels of barbarism as the incident progress. Another aspect of the case which was demonstrated by the learned SPP was that assuming that the accused had some grievance against Chotaiah to start with, that there is absolutely no valid ground or justification on which they could have continued to attack the remaining persons and that learned counsel highlights the fact that the grand-daughter Muthi who was a girl of 15 and who had absolutely nothing to do with the accused or their problems has virtually been butchered without even the slightest possible provocation or justification learned counsel submitted that these facts are amply illustrative of a state of mind that betrayed absolutely no consideration for life or no mercy for anything living even for that matter, when a poor harmless goat that was tied there was also hacked to death. The choice of the weapon has also been referred to by the learned counsel who has demonstrated that a machu is a sharp chopper which can virtually slice through a bamboo and even a young tree and that this was the weapon chosen for the assault which is again indicative of the norrifying levels of cruelty that are involved in these incidents. Again, the learned SPP elaborately dealt with the background of the case and he stated that even though the investigation seem to suggest that there was some anxiety on the part of the accused with regard to their lands and the "Mata" or "witchcraft" that Chotaiah is supposed to have been practising that nothing has come on record with regard to loss of damage or prejudice caused to accused and that this only worsens the situation because it demonstrates that the accused has literally been wild and that in the process has literally taken half a dozen lives.
16. The learned SPP has dealt also in some detail with the case law on the point and he submitted that the Courts have now held that even though the normal sentence to be awarded in cases of murder would be a life sentence, that a Court would as of necessity carefully examine as to whether there are any aggravating circumstances if capital punishment is to be awarded. In this background, he has drawn our attention to two decisions of the Supreme Court (Gentela Vijayavardhana Rao v. State of Andhra Pradesh) and (Kamta Tiwari v. State of Madhya Pradesh) wherein the Apex Court had occasion to deal with several facets of the law relating to the award of death sentences. In the latter of the two cases where the Supreme Court did confirm the death sentence, it was laid down that there are situations in which the sentence awarded is required to act as a corrective to society and furthermore that there are situations in which the punishment must alarm society by sending out the right signals that brutality and cruelty of abnormal dimensions and that too when it is directed against helpless victims, will invite the highest level of punishment. Learned counsel pointed out to us that the present one was not a case in which there was a two-way quarrel, that there was no provocation or anything of the sort from the other side and that everyone of the victims was hapless and helpless. His submission was that if one were to apply the various tests prescribed by the Courts and particularly the Supreme Court for purposes of sentencing, that there could not be a fitter case than the present one for the award of a death sentence.
17. Mr. Devaraju on the other hand drew our attention to the leading case on the point (Bachan Singh v. State of Punjab) wherein the Supreme Court has narrowed down the instances in which a death sentence can be awarded to the rarest of rare cases. In other words, the Supreme Court has carved out a microscopic minority of cases wherein death sentences may be justified. Learned counsel placed heavy reliance on the minority judgment delivered by Bhagwati J., (Banchan Singh v. State of Punjab) wherein the learned Judge has strongly disapproved of the award of death sentence principally on the ground that modern thinking proceeds on the footing that howsoever acrimonious the offence was, that the law cannot take away life because that is beyond the scope of the law. Mr. Devaraju submitted that after the decision in Bachan Singh's case; the High Courts and the Supreme Courts have with a degree of regularity refused to award the death sentence even in extremely serious instances and he made a strong plea to this court that having regard to the social background of the accused and the fact that they were obviously disturbed over the possible loss of their lands that they had run berserk and that merely because of the number of victims this court ought not to enhance the sentence.
18. We are conscious of the fact that there is a lot of re-thinking with regard to the question of capital punishment and that some of the countries have even absolished it. Penologisls have produced a wealth of material, more in favour of abolition of the death sentences than in its favour, but that aspect of the matter is not really for us to go into because the legislature of this country has retained the death sentence for certain offences and in our considered view, very rightly so. We need to observe here that whereas the aspect of sympathy is one of the necessary ingredients while considering the concept of sentencing, that it is now well settled law that misplaced sympathy can virtually play havoc and can never be justified. The bottom line of the argument is as to whether the accused showed any sympathy to the victims and if not, whether the accused have any right to ask for it. More importantly, where the crime is an extremely serious one, such as the present case which the learned SPP has described it as "diabolical and demonic" to which we need to add the words accompanied by "exceptional depravity", the accused virtually forfeit their right to continue living after what they have done. It is in this background that the law provides for the imposition of capital punishment because it is well settled law that there must be a correct nexus with the gravity of the offence. The present case has very few parallels and the learned SPP is fully justified when he points out to us that this is virtually the rarest of the rare cases. The test laid down by the Supreme Court require that the Court must examine the total complexion of the crime and lastly, must evaluate as to whether a life sentence would be adequate punishment for what has been done. It is not a question of retribution because the days when the law prescribed revengeful punishments are long passed, but society also recognises the fact that where the offence is so abhorrent that any right thinking authority can come to no other conclusion except that the accused must atone for it with his life, that the death sentence is justified it is in this background that the learned SPP with a meticulous and complete sense of responsibility concluded his arguments by pointing out that unless punishment is awarded that the unfortunate impressions would be creative that every in cases where half a dozen lives are taken that the law still condones the gravity of the offences and equates it with all other run of the mill murder cases. We see the logic behind the argument in demonstrating that for good reason the law is required to make a distinction and we also see that the learned SPP has demonstrated that this is a case which satisfies the requisite tests,
19. We have devoted our anxious consideration to the various aspects of the case and we would like to recount below some of the several decisions that we have had occasion to look at which are as follows :
1. 1996 SCC (Crl) 608 (Ravindra Trimbak Chouthmal v. State of Maharashtra)
2. (State of U.P. v. Ramesh Prasant Misra)
3. (Rajaram Yadav v. State of Bihar)
4. 1997 AIR SCW 2580 : 1997 Cri.LJ 3182 (Mukund @ Kundu Misra v. State of Madhya Pradesh)
5. 1998 AIR SCW 285 : 1998 Cri.LJ 2821 (A. Deivendran v. State of Tamil Nadu)
20. This is only a sample of over 20 different judgments particularly of the Supreme Court that we have examined wherein the Court was required to examine the question of whether, in a case of murder that is accompanied either by high level of cruelty or a case of premeditated murder which betrays grave deprivity or in instances where multiple murders had been committed, the award of capital punishment would be justified. What can be culled out from all these judgments is that the award of the death sentence is becoming rather reap and that even in the majority of these cases where the sessions court awarded a death sentence and it was confirmed by the High Courts that the Supreme Court still reduced it one of life imprisonment. We have also gone into the reasons behind this trend and now find that it requires an in depth examination of the anatomy of the crime and that even in those of the cases where hitterto, capital punishment would straightway have been awarded that the Supreme Court has reduced the punishment to one of the lesser sentence if there is some extenuating circumstance which could be pleaded in favour of the accused. The learned SPP submitted that every circumstance in the present case is more aggravating than the previous one and that there is virtually nothing that can be put forward as an extenauting circumstances. Mr. Devaraju did try to point out to us that the accused are not known criminals and that this was a solitary incident that took place and he tried to lay emphasis on the fact that accused had obviously taken leave of their senses as no normal human being could have otherwise taken six lives in such a short span of time.
20A. On a very considered view of everything that has been pointed out to us we need to unhesitatingly point out that under normal circumstances we would have straightway allowed the state appeal and enhanced the sentence to one of death. We set out quite explicity that this is a case accompanied by abnormally high degrees of savage, brutality and that merely because the accused come from a particular strata of society that the law cannot condone such acts which show absolute and complete disregard for life. There is only one small factor which can be pleaded on behalf of the accused and that is their status and the circumstances under which the incident took place. The two accused in this case come from what can be described as virtually the poorest of the poor strata; it is a social tragedy they have been deprived of any form of education or literacy and starting from this premise one has to try and recreate their mental condition if they felt that the only little possession on this planet namely a small piece of land that made for their virtual sustenance was threatened. The situation in rural India and particularly at this level, makes for a very harsh life style and the prosecution has suggested, as admitted by the witnesses, that the deceased Chotaiah was mixed up in some form of so-called "mata" or witchcraft which was supposed to have been used for purposes of trying to deprive the accused of whatever little land their life solely depended on. The Court has to perhaps visualize that this provided a life and death situation for the accused and there is no doubt that reaction on their unsophisticated minds was a violent one. The learned SPP is right when he points out that when accused came down at the dead of night with such deadly weapons machus and when they straightaway went and lacked their victims into pieces, that they came there with the mental predisposition of killing those persons, but we cannot lose sight of the circumstances that triggered off this action. The law cannot and will never justify the taking of life but while evaluating the gravity of the offence and prescribing the punishment, the law cannot lose sight of these deep-seated aspects. If one were to take this aspect of the matter into consideration, as we have to, then this case would get relegated to the category of those cases in which the Supreme Court has said that eventhough on a normally evaluation the crime called for a death sentence that it still should not be awarded. This is the solitary ground on which we refrain from enhancing the sentences eventhough as indicated in the judgment, the learned SPP has otherwise made out an absolutely a fit case for awarding the death sentence.
21. We cannot however lose sight of all that has been pointed out and in the unusual circumstances of this case, even though it has not been done before, we need to take cognizance of the fact that if the sentence awarded by the Sessions Court were to be maintained that it would be a miscarriage of justice because it would in terms indicate that the punishment which the accused are awarded in the present case which portrays the most blood-curdling and horrifying dimensions that could have come before a Court, would be equated with the sentences that are prescribed for cases which do not betray these characteristics. We have indicated that there is an error on the part of the learned trial Judge in having treated the entire incident as a single one. We have demonstrated that six lives have been taken for which there are separate charges, five of them being of human beings of different ages and the last one being of the goat that was hacked to pieces. While we maintain the sentences on the subsidiary charges, we direct that the two accused shall undergo a sentence of RI for life in respect of each of the individual charges of murder in all the five cases for which separate charges have been framed. The Sessions Court had directed that the sentences shall run concurrently. We set aside that order and direct that in view of the gravity of the offences involved in the present case that the sentences shall run consecutively. The rationale behind this direction is that five murders cannot be treated on par with a single one and the sentence must realistically be five times as such.
22. In the result, Criminal Appeal No. 975/1996 fails and stands dismissed. Criminal Appeal No. 967/1996 is partially allowed.
23. Before parting with the judgment, we need to appreciate the decree of competence as also the levels of research that have been put in by the two learned counsel who have assisted us. As far as Mr. Devaraju, learned Advocate who appeared as Amicus Curiae is concerned, having regard to the fact that these are two heavy appeals and the fact that they have been heard over several days, we are of the view that in the special facts and circumstances of this case, a consolidated fee of Rs. 5,000/- would be adequate. We have had occasion to take note of the fact that in situations such as this where an equal if not greater level of skill, responsibility and labour devolves upon the learned Advocate who represents the other side namely the State is concerned, that there should not be a disparity with regard to the quantum of professional charges. In appropriate cases it is customary for the Court to fix a special fee and in our considered view, the same quantum of Rs. 5,000/- should be the fee payable by way of professional charges to the learned SPP notwithstanding what is prescribed in the Rules. We have had occasion in the past to recommend to the State Government that it is perhaps not only desirable but necessary that a general review be done with regard to the scale of professional charges prescribed for Government panels and this is one more occasion on which we desire that the State Government should seriously look into the matter and bring about the revision on a time bound basis.
FURTHER ORDERS
24. After the judgment was dictated in open Court, it was transcribed in normal course and thereafter, the type script was finalised and signed by MFSJ and forwarded to BNMJ. What transpired was that at this stage BNMJ pointed out that as far as the operative part of the order was concerned some modification was necessary, principally because the operative part of the judgment prescribed that for the 5 offences under Section 302, I.P.C. under which the accused had been convicted, that they were sentenced to suffer R.I. for life and that the sentences were ordered to run consecutively and not concurrently. A perusal of the concluding part of the judgment will indicate the reason that prompted such direction, viz., that though the term 'life sentence' appears, that in actual fact life sentence, gets equitable with a sentence of 14 years R.I. and having regard to the various remissions which the accused are entitled to or avail of under the relevant Rules under the Jail Manual, that the effective period of incarceration gets shortened considerably and taking into account that length of imprisonment, the sentences were directed to run consecutively. The additional brief ground was that having regard to the facts and circumstances of the case even though the Judges were of the view that the capital punishment was not desirable, that circumstances did justify a very rigorous sentence, and that having regard to the brutality involved and the other attendent factors that it seemed reasonable that the punishment for commission of 5 murders should not be equated with that of one murder. However, at the stage of re-consideration or finalisation of the judgment, the position that was pointed out was that whereas in the case of sentences of a lesser duration where the Court awards a prescribed period of sentence that if the Court feels that for the multiple offences committed, the sentences should run one after the other so that the aggregate period of punishment is reasonably high, that the law permits the Court to do so. In the present case, there were certain additional aspects which needed to be taken into consideration such as the provisions of Section 427(2), Cr.P.C. and more importantly, the view taken by the Supreme Court from time to time in relation to life sentences and the duration of such sentences and in the light of these, on a re-consideration it appears that whereas in the case of short term sentences it would be permissible to direct that they run consecutively that in the case of life sentences that such an order would not be correct. It was for this reason that we had the appeal re-listed and we heard the learned S.P.P. as also the learned senior counsel who represented the respondent-accused at considerable length. We shall briefly summarise for purposes of record the substance of the various points.
25. The first question that arose was as to whether, this being a criminal case, it was at all permissible for the judgment to be altered in any manner, also taking into consideration one very unusual feature that applies to this case and not to any other reported decisions, viz., the fact that the judgment has been signed by one of the Judges and not by the other learned Judge whereas at the same time, both the learned Judges are still available and this was not a case in which one of the Judges was no longer around. The view canvassed by the learned S.P.P. was that the judgment has been pronounced in open Court, that having regard to the clear mandate of Section 362, Cr.P.C. that there is a total bar on any alteration, review or variation of that judgment after it has been pronounced more so, because the judgment has already been signed by one of the Judges and has therefore assumed finality to the extent that it is only the other learned Judge whose signature is required. The argument proceeded on the basis of the view expressed by different High Courts and in one of the cases by the Supreme Court itself with regard to the finality of the judgments in criminal cases.
26. On the other hand, Mr. M. V. Devaraj, learned senior counsel who represented the original accused submitted that this bar cannot come in the way of the Court carrying out the requisite modification to the operative part of the judgment and he placed reliance on several decisions in support of his contention that having regard to the provisions of Section 362, Cr.P.C. which must be read in conjunction with the relevant Rules of the High Court, that the judgment becomes final and therefore, irrevocable only if it has been signed by both the Judges. Since this was a Division Bench judgment in a Cr. Appeal which is thereafter put in the process of implementation, the view expressed in some of the earlier cases particularly by the Bombay High Court was to the effect that since in criminal cases having regard to the norms and procedures which the Courts follow that the judgment is acted upon when it is dictated and pronounced in open Court that it becomes irrevocable from that stage onwards save and except to the extent that the learned Judges would correct the draft for typographical errors and the like, but that there could be no question of review or alteration. What Mr. Devaraj basically submitted was that if one were to examine the whole series of cases relating to Section 362, Cr.P.C. which was earlier Section 369, Cr.P.C, that it will be seen that the Courts have consistently taken the view that the stage of finality comes up at the point of time when both the learned Judges have signed the judgment. This position is undoubtedly correct because wherever one of the Judges has either passed away or retired or is not available for whatever reason, the Courts have held that the judgment in question is not a final judgment and that the case had to be effectively be reheard. Under these circumstances, his submission was that if one were to look at the dual requirements of Section 362, Cr.P.C. that it will be seen that the judgment has to be not only pronounced as happens when it is dictated in open Court but that has also got to be signed and it is only after this that the bar comes in. Having regard to the case law to which we shall make reference presently, we accept this petition as being correct.
27. One of the angles that arose in the course of the hearing was as to what would be the position where the judgment has been signed by one of the Judges and not by the other Judge to the extent that the judgment may bind the Judge who has signed it and preclude him from being a party to an alteration or modification. After considering in depth this particular aspect of the law because we do not find a single reported case where such a situation has arisen, we are ultimately required to go back to the wording of the Section 362, Cr.P.C. Before doing that effort, what we took note of was that there is a sequence to the order of finalisation, in so far as invariably as is the procedure, the judgment after transcription is put up for final signature and is required to be read, corrected and signed by the learned Judge who has dictated it and in the process, if there are alterations, corrections or modifications, it is within the scheme of law for this to be done while the judgment is being finalised, provided there are no major variations. The learned Judge would then sign it and send it to his colleague and it would perhaps be unreasonable to assume that whereas the process of correction or modification is available to one of the two learned Judges that it would not be available to his colleague before he signs it. The only reasonable interpretation therefore would be that if one have to fix the Rule of finality as being applicable only after the second signature, then one has to hold that it would still be open for alteration during the aforesaid process up to the point when the second learned Judge has signed the judgment. In effect, the Section itself supports this view because a careful analysis of Section 362 of the Cr.P.C. would indicate that the Section at all times uses the expression 'the Court' and not 'the Judge' and as Mr. Devaraj had taken pains to point out, that the judgment is the judgment of the Court and not of the individual Judge or Judges and if that expression has to be construed in relation to Division Bench judgment, that judgment becomes the judgment of the Court only when it is signed by both the Judges and not by one of them. Looked at from any point of view therefore, we did not find any insurmountable legal bar to the Court in re-considering the operative part of the judgment.
27-A. In this regard, the learned counsel have relied on the following decisions :
(1) 1979 SCC (Cri) 462 : 1979 Cri LJ 33 (2) (3) (4) AIR 1955 Pat 32 (sic) (5) AIR 1956 All 221 (sic) (6) (7) (8) (9) (10) (11) (12) (13) ILR (1982) 3 Kant 2410 (sic) (14) (1986) 2 Kant LJ 120 (15) 1937 Cri LJ 753 and (16) 1977 Cri LJ 1038.
28. We next address ourselves to the real issue that required us to re-list the case and hear it at considerable length over the large number of hearings which did ineviably take a lot of time. After the judgment was originally pronounced the Division Bench had broken up and the two learned Judges were on different assignments and on each occasion, it required the re-constitution of the Bench and since the arguments were required to be heard at great length, it also entailed a lot of research and consequential time and inevitably the hearings were spread over many months. The reasons why the earlier view was recorded are contained in the original judgment. The point that emerged was that when at different times applications had been made to the Supreme Court for purposes of either construing as to in terms of actual imprisonment or in terms of years what specifically the term 'life imprisonment' entailed, the Supreme Court has consistently recorded the fact that life imprisonment means that the convict is required to remain in jail for the rest of his life. The Court was conscious of the provisions of Section 433-A and all the other various provisions in the Jail Manuals Rules and Regulations and the constitutional provisions where under for a variety of reasons the period of imprisonment gets considerably reduced. Regarding this fact, after hearing the learned counsel, the unanimous view that has emerged is that when the expression 'life imprisonment' is used, that it signifies that the convict is required to undergo imprisonment for the rest of his or her life, but the law also recognises the fact that this period may be either considerably reduced or prematurely terminated for a variety of reasons. The point in issue is really as to whether the Court pronouncing a sentence of life imprisonment is entitled to take into account the latter consideration and after an in depth consideration of the law on different occasions, the Supreme Court has in unequivocal terms laid down that the life imprisonment is life imprisonment and nothing less than that. Under these circumstances, what Mr. Devaraj, learned counsel pointed out was that Section 427(2) of Cr.P.C. has consciously made a provision bringing it to the notice of the Court that if an accused who is undergoing life imprisonment is subsequently awarded a sentence of life imprisonment, that the sentences will have to be made to run concurrently and the extension of the argument was that if this is the principle, that then the Court will always have to construe it as meaning that if in view of the unusual cases such as the present one where multiple murders have been committed and the accused has been awarded life sentences on conviction under each of the heads of charge, that it would still require the Court to prescribe that the sentences have to run concurrently. Apart from the normal argument that the human being has only one life span and if the remainder of that life span has to be spent in jail then there can be no question of directing that the remaining life sentences would have to run consecutively because otherwise it would lead to an infructuous situation whereby the remaining sentences cannot be carried out. Under these circumstances, the view canvassed was that the operative part of the judgment which prescribed that the 5 life sentences shall run consecutively was required to be modified to the limited extent in that it will have to be directed that the sentences should run concurrently. In this regard, our attention was specifically drawn to the following decisions :
, AIR 1980 SC 1336 (sic), and .
In sum and substance, on the basis of the consistent interpretation by the Supreme Court of the definition of the term 'life imprisonment' as being synonymous with the incarceration for whole of the remainder of the convicts life, Read with provisions of Section 427(2) of Cr.P.C, we accept the position that the correct direction from the Court would be that the sentences awarded in this case are required to run concurrently.
29. Having regard to the aforesaid position, the operative part of the earlier judgment to stand modified only to this extent that the sentences awarded to the respondent-accused to run concurrently and not consecutively. Both the appeals Cr. A. 967/ 96 and Cr.A.975/96 are therefore dismissed.
30. While we have very briefly summarised for the further order, the genesis of all that was argued and our finding thereon, we will be failing in our duty if we do not mention how deeply indebted we are to the learned senior counsel Sri. B. R. Nanjundaiah and M. V. Devaraj who incidentally appeared as Amicus Curiae all through the long hearing of the appeals and thereafter, for the volume of research that they have put in and the skill and clarity with which they have assisted the Court which we have found invaluable while resolving this rather difficult issue.