Jharkhand High Court
Brijendra Kumar ? Golu vs State Of Jharkhand on 6 September, 2012
Author: D.N. Patel
Bench: D.N.Patel, Prashant Kumar
DEATH REFERENCE NO, 1 OF 2012
WITH
CRIMINAL APPEAL (DB) NO. 576 OF 2012
In the matter of reference vide Letter No. 5006 dated 8th May, 2012,
referred by Sri Sarfaraz Hasan Kazmi, Judicial Commissioner, Ranchi in
Sessions Trial No. 380 of 2011.
And
Against the judgment and order of conviction and sentence, dated 26th
April, 2012 and 2nd May, 2012 respectively, passed by Shri Sarfaraz
Hasan Kazmi, Judicial Commissioner, Ranchi in Sessions Trial No. 380
of 2011 arising out of Lower Bazar P.S. Case No. 110 of 2011
Death Reference No. 1 of 2012
The State of Jhakhand .......... Appellant
Versus
Bijendra Kumar @ Golu .......... Opposite Party
Criminal Appeal (DB) No. 576 OF 2012
Bijendra Kumar @ Golu ... ... Appellant
Versus
State of Jharkhand ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE D.N.PATEL
HON'BLE MR. JUSTICE PRASHANT KUMAR
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For the Appellant: Mr. Shekhar Sinha
For the Opposite Party: Mr. Nityanand Sinha, Advocate
Mr. Kishlay Prasad, Advocate
(In Death Reference No.1 of 2012)
For the Appellant : Mr. Nityanand Sinha, Advocate
Mr. Kishlay Prasad, Advocate
For the Respondent: Mr. Shekhar Sinha
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Per D.N. Patel, J.
1. The criminal appeal has been preferred by the appellant accused
against the judgment and order of conviction and sentence passed by the
Judicial Commissioner, Ranchi, dated 26th April, 2012 and 2nd May, 2012
respectively, in Sessions Trial No. 380 of 2011, vide which the present
appellant has been convicted for the offence punishable under Section 302
I.P.C for committing murder of Khushboo Shahdeo and has been awarded
death sentence. The death sentence has been referred to this Court under
section 366 of the Criminal Procedure Code for its confirmation by this Court
under Section 368 of the Code of Criminal Procedure.
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2. Factual matrix of the case are as under:
Prosecution case, in short, is that on 27th April, 2011, at about 4.45
p.m. when deceased Khushboo Shahdeo came out of Room No. 41 of St.
Xavier's College at Ranchi (capital city of the State of Jharkhand), the
appellant accused suddenly rushed to her and beheaded her with three
blows on her neck with a sharp cutting instrument- 'Bhujali'. This incident
was seen by a security guard (P.W.1) of the college as well as Basanti Devi
(P.W. 14), who is the grand mother of the deceased and informant of the
case. It is also a case of the prosecution that immediately P.W.1 and other
guards started whistling so that the accused appellant, who was running
away, might be caught hold of. The college has a football ground where the
students were playing. As P.W.1 was chasing the appellant, he was also
shouting so that the person (accused appellant) who was running might be
caught hold of and ultimately few students, who are P.W.2, P.W.4 and P.W.5
caught hold of the appellant, whose shirt and pant were bloodstained.
3. The police was called immediately. The police reached the spot
and arrested the appellant accused. The weapon, which was a sharp cutting
instrument, was also lying beside the dead body in the corridor of first floor
of the college. Necessary Panchnamas, like Inquest Panchnama and
Seizure panchnama, were drawn. F.I.R. was lodged and the police, after
registering the case, investigated the same and on completion thereof
chargesheet was filed. During investigation, several other items, like identity
card and bag of the accused etc. were also seized. Statements of several
witnesses were recorded. After the charge-sheet was filed, case was
committed to the court of sessions where, during the course of trial,
prosecution examined 23 witnesses. Detailed investigation, including the
DNA test etc., have been brought on record by the prosecution witnesses.
4. On the basis of the evidence on record, the learned trial court has
convicted the appellant accused for the offence punishable under section
302 of I.P.C. and awarded death sentence and has referred the matter to
this Court under section 366 Cr.P.C. for confirmation of the death sentence
by this Court under Section 368 Cr.P.C. Appellant accused has also
preferred appeal (the present appeal) against the judgment and order of
conviction and sentence passed by the learned trial court
5. We have heard both the cases together, i.e. death reference as
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well as criminal appeal preferred by the appellant accused.
Submissions made by counsel for the appellant in Cr.appeal No.
576 of 2012
6. Counsel appearing for the appellant accused mainly submitted that
the prosecution has not proved the offence of murder of the deceased
beyond reasonable doubt. There are material contradictions, omissions and
improvements, which have not been properly appreciated by the learned trial
court and hence the judgment and order of conviction and sentence passed
by the learned trial court deserve to be set aside.
7. Counsel for the appellant has also read out meticulously the
deposition of prosecution witnesses and pointed out that there was, in fact,
no eyewitness to the whole incident and P.W. 1 and 14 are not real but so
called eye witnesses.
8. It is further submitted by the counsel for the appellant that what is
stated in the deposition of P.W.14, it is missing in the F.I.R.. Further, there is
no mention of the weapon Bhujali in the Inquest Panchnama, whereas in the
deposition given by P.W. 14, there is a mention of usage of weapon Bhujali.
Similarly, during the narration of the whole incident P.W. 14 has stated that
three blows of Bhujali were given, whereas reference of three blows is
neither in the F.I.R. nor in the statement of the witness under section 161
Cr.P.C. As per P.W.1, who is the eye witness as per the prosecution, he
reached at the place of offence immediately after the whole incident has
taken place and none else was present there at that time. This falsifies
deposition of P.W.14 and therefore, P.W.14 is not an eye witness.
9. Moreover, it is also submitted by the counsel for the appellant that
most of the prosecution witnesses are hear-say witnesses. In fact, nobody
has seen the incident at all. On account of the examination being conducted
that day, nobody was allowed to enter into the premises of the college. The
main gate of the college was closed and only those, who were in possession
of identity cards, were allowed to enter the premises. Therefore, P.W.14,
who is the grand mother of the deceased, cannot come into the premises of
the college because she was not an examinee and her presence in the
college premises itself is a doubtful proposition. Therefore, P.W. 14 is not an
eye witness to the incident.
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10. Counsel for the appellant has also pointed out that marriage card
of the deceased should not have been marked Ext. 1, as the same is not
proved at all. Similarly, on the Bhujali, i.e. the sharp cutting instrument, there
is no evidence of any finger print of the accused brought on record by the
prosecution.
11. Thus, the prosecution has failed to prove the offence beyond
reasonable doubt and as this aspect of the matter has not been properly
appreciated by the learned trial court, judgment and order of conviction and
sentence passed by the learned trial court deserves to be set aside.
12. So far as death sentence is concerned it is vehemently submitted
by the counsel for the appellant accused that the appellant, who was 22
years of age at the time of offence, was pursuing his studies in Diploma in
Engineering. Thus, appellant is of young age and moreover, there is no
antecedent of the appellant accused and as all these facts have been
brought on record, death sentence may not be awarded to the appellant
accused.
13. counsel for the appellant has meticulously pointed out the
mitigating circumstances as stated in the decision rendered by the Hon'ble
Supreme Court in the case of Bachan Singh Vs. State of Punjab, reported
in (1980) 2 SCC 684 as well as in the decision rendered by the Hon'ble
Supreme Court in Ramnaresh & Others v. State of Chhattisgarh reported
in (2012) 4 SCC 257. It is also submitted by the counsel for the appellant
that the whole offence has taken place due to extreme emotional
disturbance and frustration as the appellant accused was in love with the
deceased. Further, the appellant is of young age and therefore, there are all
chances of rehabilitation of the appellant and in fact, the appellant is
interested in pursuing his studies further and apart from the above facts, he
is also not a professional killer. In fact, all the mitigating circumstances
stated by the Hon'ble Supreme Court in the aforesaid decisions are present
in this case. Thus, the case of appellant is not falling within the criteria of
"rarest of rare case".
14. Counsel for the appellant has also pointed out that P.W. 1 has not
been declared hostile by the prosecution and relied upon the decision
rendered by the Hon'ble Supreme Court in the case of Mukhtar Ahmed
Ansari Vs. State (NCT of Delhi) reported in (2005) SCC (Cri) 1037 . This
decisions have been cited for the proposition of law that if the witness is not
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declared hostile, his deposition is binding. Much emphasis has been given
by the counsel for the appellant upon the deposition of P.W. 1 to highlight
that he was the only man, who was present and nobody else was there at
the scene of offence.
15. With all these evidences on record the prosecution has failed to
prove the offence beyond reasonable doubt, hence the appeal may kindly be
allowed and the death reference may not be entertained by this Court.
Submissions made by the learned A.P.P. appearing for the State
16. We have heard the learned A.P.P. appearing on behalf of the
State, who has vehemently submitted that this is a preplanned and well
designed murder of a young girl, namely Khushboo Shahdeo, when she was
coming out of the examination hall, at St. Xavier's college, Ranchi on 27 th
April, 2011 at about 4.45 p.m. The appellant accused was caught red
handed with blood stained clothes. Weapon was also lying nearby the dead
body and there was an element of brutality in the murder as it has been
committed by the appellant accused by giving three blows. The deceased
was beheaded. The murder has been committed with full degree of mens
rea when several students were present in the college campus. The accused
had come all the way from Jamshedpur, which is approximately at a
distance of 130 kilometers from Ranchi, where St. Xavier college is situated.
Initially Khushboo Shahdeo (deceased) was staying at Jamshedpur with her
maternal grand mother. The appellant accused was harassing the deceased
at Jamshedpur also and therefore, parents of the deceased decided to bring
her to Ranchi. On 27th April, 2011, deceased Khushboo Shahdeo was in the
examination hall at St. Xavier college where the examination was going on
and when the examination was over, she came out of the examination hall.
At that time, appellant rushed to her and assaulted using a sharp cutting
instrument (Bhujali), by inflicting three blows on the neck of the deceased as
a result of which she died on the spot and thereafter, accused appellant ran
away. P.W.1, who is a security guard , rushed immediately there, chased the
accused, who was caught hold by other students, I.e. P.W.2, P.W.4 and
P.W.5.
17. P.W. 14, who is the grand mother of the deceased, was climbing
the stairs at the relevant time. She has also seen the incident from some
distance. The map of the place of incident is at Ext. 8. On perusal of this
map and the position of the dead body, it is apparent that the deposition
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given by P.W. 14 that she has seen the whole incident is absolutely true and
correct.
18. P.W.1, who is a security guard, has also seen the incident.
Thereafter, when appellant tried to run away, he was chased by P.W.1, who
was whistling and shouting that "catch hold of the person who is running
away ". Appellant accused was running away towards the football ground of
the said college where several students were playing foot ball and some of
them, who are P.W.2, P.W.4 and P.W. 5, caught hold of the appellant. It is
further submitted by the A.P.P. The appellant accused, when he was tried to
be caught hold of by P.W.2, 4 and 5, he was threatening these students that
he will use fire arm to kill them. This conduct also reflects the mens rea.
Ultimately, he was caught hold of. The shirt and the pant of the appellant
accused had enough blood stains.
19. Counsel for the State has read out the deposition of the
prosecution witnesses in detail and pointed out that P.W. 1 and 14 are the
eye witnesses. They have narrated the incident in detail without any
exaggeration and without any material omission and contradiction. Even
looking to the cross-examination of these two witnesses (P.W. 1 and 14),
nothing is coming out in favour of the appellant accused. Counsel for the
State has also pointed out that F.I.R. was lodged immediately on the same
day, i.e. on 27th April, 2011 at about 5.15 p.m. Accused was named in the
F.I.R. and in the F.I.R. three blows were not narrated by P.W.14, but she has
clearly stated that with a sharp cutting instrument appellant accused has
committed the murder of the deceased and has severed the head of the
deceased. The A.P.P. submitted that F.I.R. is a rough sketch of the incident.
Since the F.I.R. was lodged immediately after the incident in the college
premises itself, therefore, mental condition of P.W. 14 has to be appreciated
by this Court. F.I.R. is not an encyclopedia of the whole crime and therefore,
contention raised by the counsel for the appellant that narration of three
blows were not there in the F.I.R. is not of much help to the appellant-
accused. On one side the dead body of her grand daughter was lying there
and on the other F.I.R. was recorded by P.W.14, who is a lady of much
advanced age and therefore, at that moment the word "three blows" might
not have been used by her, but looking to the deposition given by P.W.14,
she has clearly stated that three blows were given on the neck of the
deceased and ultimately her head was severed. This deposition is
corroborated by the deposition of Dr. Ajit Kumar Choudhary (P.W.19),
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Professor and Head of the Department, Forensic Science, RIMS, Ranchi,
who conducted postmortem examination of the deceased on the very same
day at about 21.30 hours. On perusal of the medical evidence, it appears
that it has been clearly stated by Dr. Ajit Kumar Choudhary that three blows
have been given. Thus, there is no exaggerated version given by P.W.14.
On the contrary, her deposition is a natural one. Her presence at the scene
of offence is also very natural as she is the grand mother of the deceased
and as stated by several witnesses, the gate of the St. Xavier college was
open because the examination was to be over at about 5 p.m. Moreover, it
has been stated by P.W.3, who is one of the security guards, that ladies
were allowed to enter into the premises of the college. P.W.14, being the
grand mother, was allowed to enter into the premises of the St.Xavier's
college. The A.P.P. has also pointed out from the deposition of the security
guard (P.W.3) that no sooner had P.W. 1 started whistling, he also ordered
for closure of the gate. It has been deposed by P.W.3 and P.W.6 that
immediately the gates were closed, meaning thereby the gates were open at
the time of completion of the examination. The A.P.P. further submitted that
the presence of P.W. 14 within the campus was absolutely natural and at the
time the offence was committed, she was climbing the staircase of the 1 st
floor of St. Xavier college and since she has seen the whole incident from
certain distance, therefore, her clothes were not bloodstained. She has also
identified the accused in the court. Similarly other prosecution witnesses
have also identified the appellant accused in the court because they had
seen the appellant accused either while chasing him or while he was caught
hold of by them. Thus, there is no chance of mistaken identity of the
appellant accused.
20. A.P.P. has also pointed out that blood stained clothes and other
articles, which were seized, like sharp cutting instrument, identity card of the
appellant accused etc., were sent for Forensic Science Laboratory report.
The F.S.L report has also been taken on record as Ext.14. P.W. 21 proved
the F.S.L. report and the blood stains on the clothes of the accused have
also been meticulously matched with the help of DNA test. It is submitted by
the A.P.P. that with the help of the prosecution witnesses, the prosecution
has proved the offence of the murder of the deceased Khushboo Shahdeo,
beyond reasonable doubt, which has been committed by the appellant
accused and no error has been committed by the learned trial court in
passing the order of conviction in Sessions Trial No. 380 of 2012.
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21. So far as quantum of punishment is concerned, it is vehemently
submitted by the counsel for the State that appellant has committed
premeditated and well designed murder of a young girl named Khushoo
Shahdeo. Even at Jamshedpur, where the deceased was staying initially,
the appellant accused was harassing the deceased. These facts have been
highlighted by P.W.14, P.W. 13 and P.W. 17, who are the Grand mother,
uncle and father of the deceased respectively. Moreover, on perusal of the
deposition of maternal uncle of the deceased, namely Rajesh Kumar
(P.W.10), a resident Jamshedpur, it appears that this witness has also
stated these facts clearly before the trial court that it is due to the
harassment by the appellant accused, deceased Khushboo Shahdeo was
compelled to come to stay with her parents at Ranchi, which is at a distance
of 130 Kms. from Jamshedpur. The appellant accused came all the way
from Jamshedpur to Ranchi with only intention to commit the murder of the
deceased and entered into the premises of St. Xavier's College with a bag,
which was seized with identity card and with a cover of the sharp cutting
weapon Bhujali. All these things were lying nearby the dead body and were
ultimately seized and the seizure list (panchnama) has been drawn which
reflects that this is a pre-planed, well designed action on the part of the
accused. Moreover, marriage card of the deceased has also been brought
on record, which has been exhibited as Ext. 1 and with the help of
prosecution witness no. 23, it has been taken as an evidence on record of
the trial court. Therefore, it is apparent that as marriage of the deceased was
to be solemnized on 27th May, 2011, the appellant has committed murder of
the deceased. Counsel for the State has therefore pointed out with the help
of the decision rendered by the Hon'ble Supreme Court in the case of
Machhi Singh & Others vs. State of Punjab reported in (1983) 3 SCC
470 that the appellant deserves death sentence and no error has been
committed by the learned trial court in awarding death sentence to the
appellant accused.
22. With respect to mitigating circumstances, which have been
referred to in the decision rendered by the Hon'ble Supreme Court in the
case of Bachan Singh v. State of Punjab, reported in (1980) 2 SCC 684, it
has been stated by the A.P.P. that none of the mitigating circumstances is
present in this case. Young age of the accused cannot be taken into
consideration, if the murder has been committed with full degree of mens
rea. The appellant has come all the way from Jamshedpur, with a sharp
9
cutting instrument, on a motorbike, entered into the premises of the college
and was eagerly waiting for Khushboo Shahdeo to come out of the
examination hall and no sooner did she come out of the examination hall,
the appellant rushed to her immediately and after killing her, ran away. This
conduct that he was running away after the offence is very much relevant
and he has also threatened the persons ( P.W. 2, 4 and 5) who were
chasing him, before he was actually caught hold of. He threatened that he
will use fire arm. The A.P.P. has submitted that the victim was also of young
age. She was pursuing her studies and therefore, death sentence awarded
by the trial court may be confirmed by this Court in exercise of powers under
section 368 of the Code of Criminal Procedure in Death Reference No. 1 of
2012 and the appeal preferred by the appellant may be dismissed by this
Court.
Observation made by this Court :
23. Regarding trustworthiness of the deposition of P.W.14 (One of
the two eye witnesses): Having heard counsel for both sides and looking to
the facts and evidences on record, it appears that the whole incident has
taken place on 27th April, 2011, at about 4.45 p.m. in broad day light. As per
prosecution, incident has been witnessed by one of the security guards,
namely Mahabir Kachhap (P.W.1) and Grand mother of the deceased,
namely Basanti Devi (P.W.14), who is the informant and who accompanied
the deceased to the St. Xavier's college, where the examination was
scheduled to have been held. The hours of the examination was 2.00 p.m. to
5.00 p.m.. The incident has taken place when Khushboo Shahdeo was
coming out from the examination room no. 41 of St. Xavier's college, Ranchi.
At the relevant time P.W.14 was also climbing the stairs of the college. On
perusal of the map prepared by the Investigating Officer at Ext. 8, the place
at which murder has taken place is clearly visible from the staircase. P.W.14
has narrated in her deposition that she has seen appellant committing the
murder of the deceased by sharp cutting instrument from the staircase. He
has given three blows and severed the head of the deceased. Immediately
after the incident, police was called and F.I.R. was lodged on 27th April,
2011, at about 5 p.m. Inside the college premises. From the cross-
examination of P.W.14, nothing comes in favour of the accused appellant. It
has been argued by the counsel for the appellant that in F.I.R. there is no
reference of the word 'three blows' and therefore, the deposition of P.W.14 is
an exaggerated version or an improved version. This contention is not
10
accepted by this Court, mainly for the reason that when the police was called
in the St. Xavier's College, on one hand dead body was lying at the scene of
offence and on the other, F.I.R. was recorded immediately and therefore,
mental status of the informant (P.W.14), who is the grand mother of the
deceased and an aged lady, has to be appreciated. Moreover, F.I.R. is a
rough sketch of the incident and it is not an encyclopedia of the whole
offence. It is sufficient for treating an information to police as an F.I.R, if it
contains major details of the incident and it puts criminal law in motion.
Though P.W.14 is old, she has narrated the whole incident with all sufficient
details based upon her power of observation of the offence, memory and
reproduction of relevant and material facts in the court. On perusal of the
deposition of P.W.14 before the court, it is apparent that her presence at St.
Xavier College is very natural . She has narrated the whole incident in detail
without any major contradiction or omission. Her deposition is also
corroborated by the medical evidence given by Dr. Ajit Kumar Choudhary,
who carried out postmortem examination of the dead body of the deceased
on 27th April, 2011 at about 21-30 hours and he has stated that three blows
were given to the body of the deceased. Thus, P.W. 14 is a trustworthy
and reliable witness.
24. Trustworthiness of the deposition of P.W.1 (One of the two
eye-witnesses) :Looking to the deposition given by P.W.1, it appears that
he is the Security guard, who rushed to the scene of offence immediately
because he has seen the appellant accused committing murder of the
deceased in the corridor of St. Xavier's college. This prosecution witness
(P.W. 1) reached at the spot where the appellant was committing murder of
the deceased. He shouted immediately and started whistling also, being a
security guard, and since the appellant was running away, P.W. 1 started
chasing the appellant accused and P.W. 1 also started whistling and
shouting that "catch hold of the accused". Immediately the gates, which were
open, were closed by the other security guards, who are P.W.3 and 6. The
appellant was running towards the football ground, which is within the
premises of the college. Other students were playing football. Having seen
the appellant accused running, being chased by P.W. 1, they also tried to
catch hold the appellant accused. At that time accused was threatening to
kill them using fire arm upon them and ultimately P.W.2, P.W. 4, P.W. 5
caught hold of the accused. Thus, the deposition of P.W. 1 has all details of
the offence committed by the appellant accused. Presence of P.W.1 at the
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place of occurrence is also very natural, he being a security guard. He is the
first person to reach the place of occurrence. P.W. 1 is also one of the
persons, who was chasing the appellant accused. He has also identified the
appellant accused in the court. On perusal of his cross-examination, his
deposition given in examination-in-chief, it appears that nothing is coming
out in favour of the appellant accused. P.W. 1 has deposed without any
exaggeration, omission, contradiction and improvement and his deposition is
also is in consonance with his statement given under Section 164 Cr.P.C,
which is at Ext. 6/3. Thus, P.W.1 is a trustworthy and reliable witness
and he is also one of the eye witnesses to the incident.
25. Reliability of the deposition of P.W. 2, P.W.4 and P.W.5, which
corroborates the deposition of P.W. 1 and P.W. 14 (eye witnesses) : On
perusal of the deposition of Sandeep Munda (P.W.2), Shiv Kumar Raman
(P.W.4) and Akash Raj (P.W. 5), who are all students, it appears that they
are the witnesses, who have caught hold of the appellant accused as he was
running away towards the football ground. Looking to their deposition, it is
clear that their presence in the St. Xavier's college is also natural They
caught hold of the appellant hearing the whistling and shouts of P.W.1 The
appellant accused threatened these witnesses that if they try to catch him,
he will kill them using fire arm. Counsels for both the sides has read out
these three depositions meticulously. Looking to their depositions, it appears
that they have also identified the accused appellant in the court. They have
also confirmed each other's presence in the deposition. They have also
confirmed the presence of P.W. 1 at the time when appellant was caught
hold of by them. Moreover, appellant had also confessed before them that
he has committed murder of the deceased. The deposition of these three
students were also corroborated by their statement recorded under section
164 Cr.P.C. These statements recorded under Section 164 Cr.P.C. have
been marked as Ext. Nos. 6, 6/1 and 6/2. Looking to the depositions, they
have also stated that the clothes, i.e. shirt as well as pant of the appellant
accused were bloodstained. Looking to the cross examination of these three
witnesses nothing is coming out in favour of the appellant accused. On the
contrary, in their cross-examination also, they have narrated the whole
incident in detail. Though they are not eye witnesses, they are witnesses of
the facts of the offence immediately after the offence has taken place, which
is highly relevant as per the Indian Evidence Act. The deposition of P.W.2, 4
and 5 is corroborating the evidences given by P.W. 1 and P.W. 14 in several
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aspects like the scene of offence, time of offence and blood stained clothes
of the appellant. They have also stated about the confession made by the
appellant accused before them. They have also stated about the presence of
P.W.1. Thus, though they are not eye witnesses, they have actually
corroborated the deposition of P.W.1 and P.W.14, who are the eye
witnesses. Over all, looking to their depositions, they are trustworthy and
reliable witnesses.
26. Trustworthiness of the depositions of P.W. 3 and P.W. 6 which
corroborates the deposition of P.W. 1 and P.W. 14 (eye witnesses) : On
perusal of the deposition of P.W. 3 and P.W.6, who are security guards, it
appears that they have stated clearly that no sooner did they hear the
whistling of P.W.1 and shouting that murder has been committed, they
closed the gates of the St. Xavier collage. They have also narrated that after
the accused was arrested, the gates were open because it was a time for
the students to come out of the collage premises as the hours of
examination was over, which was in between 2 to 5 p.m. P.W. 3 has
narrated that ladies were allowed to enter into the gate of St. Xavier's
college and other students were allowed to enter into the college upon
showing their identity cards. Looking to the deposition of the prosecution
witnesses and looking to the Seizure Panchnama, it appears that the
appellant accused has also entered into the St. Xavier college by showing
identity card, which was also seized from the bag of the accused. Identity
card and cover of the sharp cutting weapon were seized from the bag of the
appellant accused. This evidence is also on record. Thus, depositions of
P.W. 3 and P.W.6 reflect that at the end of the examination the gate of the
college was opened. Normally, the parents and other relatives of the
examinees enter into the premises of the college to take their children back.
The gates were closed upon instruction of P.W. 1 and they have also stated
that ladies were allowed inside the gate during examination hours also. This
reflects that the presence of P.W. 14 inside the college is very natural.
Similarly, the accused also entered into the college either by showing his
identity card slightly earlier or at the end of the examination hours as the
gate was opened by that time. On perusal of cross-examination of these
witnesses, it appears that there is no major contradiction or omission or
improvement. On the contrary though they are rustic witnesses, they have
narrated the facts about the offence in detail. Depositions given by P.W.3
and P.W. 6 also corroborates the depositions of P.W.1 and P.W. 14. We
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see no reason to disbelieve the deposition of these two security guards.
27. Reliability of P.W. 8 and P.W.9, who are college employees
and P.W.10, P.W.13 and P.W.17, who are near relative of the deceased :
On perusal of the deposition given by P.W.8 and P.W.9, it appears that one
is Examination Controller, St. Xavier's College, Ranchi and the other is a
Lecturer of Geography in the same college. These two witnesses have also
narrated whatever they have seen immediately after the murder has taken
place. Their presence in the college was natural. They have also
corroborated the deposition of other witnesses regarding place of offence
and time of offence. They have also corroborated the deposition of the eye
witnesses, i.e. P.W. 1 and P.W. 14 and we have also no reason to disbelieve
these two witnesses. P.W. 9 was in the room No. 41 where the deceased
was allocated seat for the ongoing examination. P.W. 10 is maternal uncle of
the deceased, namely Rajesh Kumar, who is staying at Jamshedpur, has
stated that he runs a coaching class of Spoken English, where the accused
had got admission and came in contact with Khushboo Shahdeo and
because of harassment by the appellant at Jamshedpur, ultimately for
pursuing further studies, the deceased was compelled to go to Ranchi,
which is capital city of the State of Jharkhand and which is at a distance of
130 Kms. from Jamshedpur. Thus, looking to the deposition of these
witnesses, behavior of the accused is coming on record that even prior to
the incident, he was harassing the deceased at Jamshedpur and pursuant
thereto, the deceased was compelled to come to Ranchi. This deposition got
further corroboration from the deposition given by P.W.17, who is father of
the deceased, namely, Lal Maheshwar Nath Shahdeo, as well as
corroboration is also given by P.W.13, who is uncle of the deceased,
namely, Lal Bhrigu Nath Shahdeo. These three witnesses, though not eye
witnesses, have stated certain facts, which are very much relevant so far as
motive is concerned. They have narrated that the deceased was pursuing
her studies at Jamshedpur as better educational facilities were available
there and later on, she was compelled to be brought to Ranchi and at the
relevant time she was staying wither her father (P.W.17). Harassment, right
from Jamshedpur, has been narrated by these witnesses. Therefore,
deposition of these witnesses is also relevant, so far as decision in this case
is concerned. On perusal of the cross-examination of these witnesses, it
appears that nothing is taken away from their examination-in-chief. There
are no major omissions or contradictions in their depositions. They have
14
narrated the facts in a natural way, without any exaggeration, omission and
improvement and therefore, they are also reliable and trustworthy witnesses.
28. P.W.7 and P.W.15 (Seizure list witnesses) : On perusal of the
deposition given by P.W.7 and P.W.15, who are the witnesses of Seizure
list, they have also narrated the items which were seized by the Investigating
Officer. Seizure list has been marked as Ext. 4. Several items have been
seized from the scene of the offence, i.e. bag of the appellant, weapon used-
Bhujali, the cover of the Bhujali, identity card of the appellant, blood stained
shirt-pants of the appellant, blood of the deceased etc. The lady's purse of
the deceased was also seized. On perusal of the deposition of these two
witnesses, it is clear that they have proved the seizure list and the items,
which were seized by the investigating officer.
29. Deposition of P.W. 20 : As per deposition given by the Magistrate
((P.W. 20), namely Rajiv Ranjan, he has also stated about the depositions of
P.W. 1, 2, 4 and 5 made before him under 164 Cr.P.C., which are marked
Ext. 6, 6/1, 6/2 and 6/3. The deposition of P.W. 20 is corroborated by the
deposition given by P.W. 1, 2, 4 and 5.
30. Deposition of P.W.16, P.W.18 and P.W.23 corroborates the
evidence of the eye witnesses : On perusal of the deposition of P.W.16,
P.W. 18 as well as P.W. 23, who are the police witnesses, it appears that
they have also narrated in detail the incident. Immediately after the offence,
the police was called and P.W.16 rushed to the scene of offence. Blood
stained shirt and pant of the accused, cover of the weapon and several other
items like lady's purse, identity card, bag of the appellant were seized from
the scene of offence i.e. from the premises of St. Xavier's College. The bag
of the appellant accused was seized, when he was caught hold of. Looking
to the deposition of these witnesses they have narrated clearly the Seizure
Panchnama items. Thereafter, the seized items were sent to the Forensic
Science Laboratory. D.N.A. test was also carried out. The map which is at
Ext. 8 is also proved by these witnesses, over and above seizure
Panchnama. From their deposition and the depositions of P.W.1 and P.W.
14, it is clear that there is no material omission or improvement of the
deposition of the eye witnesses.
31. Deposition of P.W. 19 (doctor) supports the prosecution
version of three blows by a sharp cutting weapon: In his deposition, Dr.
Ajit Kumar Choudhary (P.W.19), a Professor and Head of the Department,
15
Forensic Science, RIMS, Ranchi, who has carried out postmortem
examination of the body of the deceased on the very same day, i.e. on 7 th
April, 2011, at about 21-30 hours, has stated as under:
"The body was of average built rigour mortis was present all over
the body. Abdomen was not distended. Dried blood stain over the face, neck
both upper limb, right foot, the clothes were all soaked with blood.
The body was decapitated through the neck at the level of 3rd
cervical vertebrae and the head was lying separately. On examination of the
decapitated wound, it was cleanly cut with presence of two tissue tags on
the lower margin of the wound indicating minimum three blows. There was
infiltration of blood and blood clot in the soft and bony tissue at the right of
the wounds. The head correctly fix with the body in all respect. Internal
organ pale.
Opinion:
1. Above noted injuries are antemortem
2. Caused by heavy sharp cutting weapon.
3. Death was due to above noted decapitated
wound.
4. Time since death was between 3 to 12 hours from
the time of postmortem.
5. This post mortem report was prepared by me and bears
my signature. It is marked Ext.5"
In view of the aforesaid, it is apparent that the doctor has given clear
statement that there were minimum three blows and that the injuries were
antemortem in nature and have been caused by heavy sharp cutting weapon.
Time of death was between 3 to 12 hours from the time of the postmortem
examination. Thus, the deposition of P.W.19 corroborated the deposition of
P.W.14, who is the informant and eye witness to the incident.
32. It has been argued out by the counsel for the appellant that the word
"Bhujali" has not been used in Inquest Panchnama and therefore, it is an
improvement by P.W.14. Moreover, it has also been contended by the counsel
for the appellant that there was too much exaggeration in the deposition of the
P.W. 14 that three blows have been inflicted because 'three blows' were never
mentioned in F.I.R. and therefore, P.W.14 is not a reliable witness.
33. This contention is not accepted by this Court keeping in mind the
deposition of the doctor (P.W.19) who stated herein above after conducting
16
postmortem examination on the dead body of the deceased
34. It ought to be kept in mind that name of the weapon is not a material
aspect at all when correct description of the weapon has already been given by
the eye witnesses. Normally, people in general are not expected to be so
familiar with the weapons as to identify them by their exact name and therefore,
they are generally described in colloquial language. Sometimes in regional
language the weapon is described as 'Chura' (knife) or 'Bara chura' (big knife)
and if a witness is slightly intelligent and educated, he might use the words
'sharp cutting weapon' and therefore, in the present case, witnesses, though
have not identified the weapon by its exact name, but correct description of the
weapon in question is found from their deposition. The word 'Bhujali' might not
have been used by P.W. 14 and in the inquest Panchnama this word might not
have been used, but in the column no. 8 of the same, the words 'sharp cutting
instrument' have been used. Apparently, because of the aforesaid reasons,
P.W.4, who is a student of the said college, used the word 'Bara Chura'. Thus,
correct name of the weapon might not have been used by the prosecution
witnesses, but the fact remains that the said weapon has been described by the
witnesses as what exactly it is, i.e. a 'sharp cutting instrument'. On the order of
this Court, the box containing the material exhibits has been opened and after
the weapon 'Bhujali' is seen by this Court, box is again sealed. From the
appearance of this sharp cutting instrument, it is clear that no mistake has been
committed by the prosecution witnesses in describing it as a 'sharp cutting
instrument' or as a 'Chura' or as a 'Bara Chura' or as a 'Bhujali.' In the argument
put forth by the counsel for the appellant, name of the weapon is a much
debated point, but in view of what has been stated above, description of the
weapon by its exact name is not required, rather what is required is its exact
description and that has been given by the prosecution witnesses. Moreover, on
perusal of the deposition of Shrawan Kumar Shukla (P.W.23), it appears that
sharp cutting instrument in question had fitted into the cover of the sharp cutting
instrument (which was recovered from the bag of the accused) exactly. Thus, it
is apparent that the sharp cutting instrument was brought by the accused along
with its cover. The sharp cutting instrument was lying beside the dead body and
cover was in the bag of appellant accused, which was seized when he was
caught by P.W. 1, P.W.2, P.W.4 and P.W.5.
35. P.W. 23 has also proved F.I.R.(Ext. 10) and signature thereupon. He
has also proved the map of the scene of offence, which is Ext. 8 and other
items, which were seized. Thus, deposition of this police witness is also
17
corroborating the deposition of the prosecution witnesses, especially of the eye
witnesses.
36. Deposition of P.W.21 and P.W.22, regarding blood test and D.N.A.
Test, supports the prosecution version that it is the appellant who committed the
murder: In their deposition, P.W. 21 and P.W. 22, who are Assistant Director
and Dy. Director of Forensic Science Laboratory, have stated clearly about the
FSL report (Ext. No. 7). These two witnesses have deposed that Blood stains on
the pant and shirt of the appellant accused and the weapon are of the same
group, i.e Group 'B'. The blood group of the deceased is also 'B'. Likewise,
these witnesses have also stated about the DNA test, which reveals that DNA of
the bloodstains on the shirt and pant of the appellant accused and the weapon
matched with the DNA of the parents of the deceased. DNA of blood found on
the shirt and pant of the accused and upon the weapon used in the murder
matched with the DNA of the parents of the deceased. Thus, these two
witnesses have clearly narrated about the FSL report, matching of the blood
group and matching of the DNA. These leaves no room for doubt that it is the
appellant who has actually committed the murder of the deceased.
37. Thus, taking into account the evidences of total 23 prosecution
witnesses, it appears that there are two eye witnesses to the incident, i.e.
P.W.1 and P.W.14 and they have narrated the incident in detail and without any
major contradiction, omission, exaggeration and improvement. P.W.2, 4 and 5
are students, who caught hold of the deceased after the incident has taken
place. They have corroborated the deposition of the eye witnesses. Medical
evidence given by P.W.19 is also corroborative. Police witnesses, who are
P.W.16, 18 and 23, have also proved the Seizure Panchnama, F.I.R., map and
they have corroborated the deposition of all the other prosecution witnesses and
thus, it is clear that from the deposition of these prosecution witnesses,
prosecution has proved the offence committed by the accused appellant beyond
reasonable doubt. The word 'Bhujali' might not have been used in the Inquest
Panchnama, but it is not material aspect of the matter at all. As stated herein
above, in fact, in the column no.8 of the inquest Panchnama, investigating
officer has used the words "Sharp cutting weapon", which is sufficient for
description of the weapon. We therefore see no reason to quash and set aside
the order of conviction passed by the trial court. On the contrary, in our view,
learned Trial Court has considered meticulously all the material, evidences and
depositions on record before convicting the accused.
18
38. In view of the aforesaid facts, we, hereby, upheld the
judgment of conviction passed by the learned trial court.
Observation made by this Court on the quantum of punishment
39. Now, the crucial question is regarding quantum of punishment
because learned trial court has awarded death sentence to the appellant and
referred the matter to this Court under Section 366 of the Code of Criminal
Procedure for confirmation of the death sentence under section 368 of the Code
of Criminal Procedure.
40. Before this Court makes an observation regarding quantum of
punishment, following are the points which deserve attention:
Special reasons
41. Sub section 3 of Section 354 of the Code of Criminal Procedure,
which requires assignation of special reason in case death sentence is
awarded, reads as under:
"When the conviction is for an offence punishable with
death or, in the alternative, with imprisonment for life or
imprisonment for a term of years, the judgment shall state the
reasons for the sentence awarded, and, in the case of sentence of
death, the special reasons for such sentence."
(Emphasis supplied)
Therefore, under Sub Section 3 of Section 354 of the Code of Criminal
Procedure, there is a mandate as to recording of 'Special reasons' if the court is
inclined to award death penalty.
42. Thus, during sentencing process,'Special reasons' required to be
stated in terms of Sub section 3 of Section 354 of the Code of Criminal
Procedure, should satisfy the comparative utility of capital sentence over life
imprisonment.
Mitigating circumstances
43. It has been held by the Hon'ble Supreme Court in the case of Bachan
Singh vs. The State of Punjab reported in (1980) 2 SCC 684 in paragraph no.
206 and 207 as under:
"206. Dr. Chital has suggested these mitigating factors:
19
'Mitigating circumstances:-In the exercise of its
discretion in the above cases, the court shall take into account the
following circumstances:
(1) That offence was committed under
the influence of extreme mental or emotional
disturbance.
(2) The age of the accused. If the
accused is young or old, he shall not be sentenced to
death.
(3) The probability that the accused
would not commit criminal acts of violence as would
constitute a continuing threat to society.
(4) The probability that the accused can
be reformed and rehabilitated.
(5) That in the facts and circumstances
of the case the accused believed that he was morally
justified in committing the offence.
(6) That the accused acted under the
duress or domination of another person
(7) That the condition of the accused
showed that he was mentally defective and that the said
defect impaired his capacity to appreciate the criminality
of his conduct.
207. We will do no more than to say that these are
undoubtedly relevant circumstances and must be given great
weight in the determination of sentence. "
(Emphasis supplied)
The aforesaid decision mandates identification of aggravating and
mitigating circumstances to strike a just balance between them by the court
before it passes a death sentence.
44. Further, it has been held by the Hon'ble Supreme Court in the
case of Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra,
reported in (2009) 6 SCC 527 at paragraph 57 as under:
20
"57. Circumstances which may not have been
pertinent in conviction can also play an important role in the
selection of sentence. Objective analysis of the probability that the
accused can be reformed and rehabilitated can be one such
illustration. In this context, Guideline 4 in the list of mitigating
circumstances as borne out by Bachan Singh is relevant. The
Court held: (SCC p.750, para 206)
"206. (4) The probability that the accused can be
reformed and rehabilitated.
The State shall by evidence prove that the accused does
not satisfy Conditions (3) and (4) above.
In fine, Bachan Singh mandated identification of
aggravating and mitigating circumstances relating to crime and the
convict to be collected in the sentencing hearing......................."
45. In view of the aforesaid decision, it is mandated that the court, intent
upon awarding death sentence, has to identify and appreciate the mitigating
circumstances as well as the aggravating circumstances in the facts of the case,
and the State shall, by evidence, prove that the accused does not satisfy the
conditions 3 and 4 of the mitigating circumstances, as stated herein above.
Broad values guiding sentencing process:
46. Though there cannot be any straight jacket formula and any
mathematical rule for sentencing as it will tend to sacrifice justice at the altar of
the blind uniformity, but from the aforesaid decision (Bachan Singh v. State of
Punjab) the following three guiding broad values are emerging:
(i) Individualised sentencing,
(ii) Rarest of rare case
(iii ) Principled sentencing
47. Individualised sentencing - Effective compliance of sentencing
procedure under Section 354 (3) Cr.P.C. calls for sufficient judicial discretion.
Strict chanelling of discretion would go against the founding principles of
sentencing as it will prevent the sentencing court from identifying and weighing
various factors relating to the crime and the criminal such as culpability, impact
on the society, gravity of offence, motive behind the crime etc.It has also been
21
held in the case of Bachan Singh that
"Standardisation of sentencing process which leaves little room for
judicial discretion to take account of variations in culpability within single offence
category ceases to be judicial. It tends to sacrifice justice at the alter of blind
uniformity. Indeed, there is a real danger of such mechanical standardisation
degenerating into a bed of procrustean cruelty."
48. Rarest of rare dictum - The chief ingredients of the 'rarest of rare'
dictum are certain standards or norms laid down for Identification and
categorisation of rarest of rare cases
It has been held by Supreme Court in Bachan Singh v. State of
Punjab as under :
"209...........A real and abiding concern for the dignity of
human life postulates resistance to taking a life through law's
instrumentality. That ought not to be done save in the rarest of
rare cases when the alternative option is unquestionably
foreclosed."
(Emphasis supplied)
Thus, 'rarest of rare' dictum demands that Law's instrumentalities may
not be used to take a life save in an extraordinary and exceptional case only
when the alternative option (sentence of life imprisonment) is unquestionably
foreclosed.
Following are the features of the "Rarest of rare" dictum :
(a) Constitutional guarantees : The rarest of rare dictum takes its colour
from constitutional guarantees. The court has, therefore, to be mindful that the
true import of rarest of the rare doctrine speaks of an extraordinary and
exceptional case only.
It has been held by Hon'ble Supreme Court in the case of Santosh
Kumar Satishbhushan Bariyar v. State of Maharashtra reported in (2009)
SCC 551 at paragraph 135 as under:
"135. Right to life, its barest of connotation would imply
right to mere survival. In this form, right to life is the most
fundamental of all rights. Consequently, a punishment which aims
at taking away life is the gravest punishment. Capital punishment
22
imposes a limitation on the essential content of the fundamental
right to life, eliminating it irretrievably. We realise the absolute
nature of this right, in the sense that it is a source of all other
rights. Other rights may be limited and may even be withdrawn
and then granted again, but their ultimate limit is to be found in the
preservation of the right to life. Right to life is the essential content
of all rights under the Constitution. If life is taken away, all other
rights cease to exist."
(Emphasis supplied)
Thus, from the above decision it is apparent that right to life is the
most fundamental of all rights and capital punishment, which aims at taking
away life irretrievably, being the gravest punishment, should be passed in a
case so exceptional that it comes in the category of 'rarest of rare case' where
punishment of life imprisonment is inadequate.
(b) Life imprisonment is a rule and death punishment is an
exception : The rarest of rare dictum breathes life into Sub Section 3 of Section
354 of Cr.P.C. and serves as a guideline for compliance of Section 354 (3) and
entrenches the policy that life imprisonment is the rule and death punishment is
an exception, which should be passed in cases strictly identified and placed in
the rarest of rare category.
(c) Extraordinary burden on the court : It is a settled law of
interpretation that exceptions are to be construed narrowly. It is a golden rule of
interpretation that exceptions are to be interpreted strictly and that being the
case, the rarest of rare dictum places an extraordinary burden on the court. it is
the prime duty of the sentencing court as well as the appellate court to interpret
strictly the exception. This is an extraordinary burden upon the court to decise
as to whether the case in hand is falling within exception or within the rule.
(d ) Conclusion drawn from comparison between mitigating and
aggravating circumstances : A conclusion as to 'rarest of rare aspect' with
respect to a matter shall entail identification of aggravating and mitigating
circumstances relating to both crime and the criminal, such as the probability
that the accused can be reformed and rehabilitated
(e) Alternative option being unquestionably foreclosed :
Hints at the difference between death punishment and the alternative
punishment of life imprisonment and suggests selection of death punishment as
23
the penalty of last resort when, alternative punishment of life imprisonment will
just not suffice in the facts of the case and will be futile and will serve no
purpose. To reach to a conclusion as to whether the alternative option is
foreclosed, the balance has to be struck by the court in the light of the mitigating
circumstances. For awarding death sentence, the test is not as to whether there
is presence of greater number of aggravating circumstances, but whether
mitigating circumstances were present or not. A death sentence can be awarded
only in case alternative option is foreclosed and if there are chances of
rehabilitation, death sentence should be avoided.
Following has been held regarding alternative option being foreclosed
by the Hon'ble Supreme Court in the case of Panchhi vs. State of U.P.
reported in (1998) 7 SCC 177:
"16. When the Constitution Bench of this Court, by a
majority, upheld the constitutional validity of death sentence in
Bachan Singh v. State of Punjab this Court took particular care to
say that death sentence shall not normally be awarded for the
offence of murder and that it must be confined to the rarest of rare
cases when the alternative option is foreclosed. In other words,
the Constitution Bench did not find death sentence valid in all
cases except in the aforesaid freaks wherein the lesser sentence
would be, by any account, wholly inadequate. In Machhi Singh v.
State of Punjab a three-Judge Bench of this Court while following
the ratio in Bachan Singh case laid down certain guidelines among
which the following is relevant in the present case:(Machhi Singh
case, SCCp489, para 38)
"(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so the mitigating
circumstances have to be accorded full weightage and a just
balance has to be struck between the aggravating and the
mitigating circumstances before the option is exercised.'"
(Emphasis supplied)
49. Principled Sentencing : The courts have interpreted the rarest of
rare dictum laid down in Bachan Singh case in various ways and it is found that
principled application of the rarest of rare dictum does not come in the way of
individualised sentencing.
24
50. It has been held by the Hon'ble Supreme Court In Bachan Singh v.
State of Punjab, reported in (1980) 2 SCC 684 at paragraph 197 as under:
"197.In Jagmohan, this Court had held that this
sentencing discretion is to be exercised judicially on well-
recognised principles, after balancing all the aggravating and
mitigating circumstances of the crime. By 'well-recognised
principles' the court obviously meant the principles crystallised by
judicial decisions illustrating as to what were regarded as
aggravating or mitigating circumstances in those cases, (emphasis
supplied) The legislative changes since Jagmohan-as we have
discussed already- do not have the effect of abrogating or
nullifying those principles. The only effect is that the application of
those principles is now to be guided by the paramount beacons of
legislative policy discernible from Sections 354 (3) and 235(2),
namely: (1) The extreme penalty can be inflicted only (emphasis in
original) in gravest cases of extreme culpability;(2) In making
choice of the sentence, in addition to the circumstances, of the
offence, due regard must be paid to the circumstances of the
offender, also."
(Emphasis supplied)
As per the aforesaid decision, by well-recognised principles' the court
obviously meant the principles crystallised by judicial decisions illustrating as to
what were regarded as aggravating or mitigating circumstances in those cases
and a court, whether trial or appellate for that matter, while exercising its judicial
discretion in deciding as to whether a case is so exceptional as to fall in the
rarest of rare category, will be guided by the principles crystallised by judicial
decisions.
51. Cry of the society : Brutality of a murder may shock the collective
conscience of society but at the time of final decision dispassionate analysis
may be given primacy over sentiments and emotions and cry of the society can
not be the sole justification in the matter of death sentence as has been held by
the Hon'ble Supreme Court in Santosh Kumar Satishbhushan Bariyar v.
State of Maharashtra, reported in 2009 (6) 532 at para 72:
"72. We must also point out, in this context, that
there is no consensus in the Court on the use of "social necessity"
25
as a sole justification in death punishment matters. The test which
emanates from Bachan Singh in clear terms is that the courts
must engage in an analysis of aggravating and mitigating
circumstances with an open mind, relating both to crime and the
criminal, irrespective of the gravity or nature of crime under
consideration. A dispassionate analysis, on the aforementioned
counts, is a must. The courts while adjudging on life and death
must ensure that rigour and fairness are given primacy over
sentiments and emotions."
(Emphasis supplied)
52. Therefore, the guideline, emerging from what has been discussed
above, for determination of the quantum of punishment, requires that the court,
as bound by the spirit of Article 21, shall exercise judicial discretion on well
recognised principles to identify as to whether the case falls in the rarest of
rare category. In doing so the court shall give dispassionate analysis
primacy over cry of the society and by striking a just balance between the
mitigating and aggravating circumstances (with due weigtage to mitigating
circumstances) it will be determined as to whether there exists a chance of
rehabilitation of the accused. Further the court will keep in mind that life
imprisonment is the rule and death punishment is an exception and the
exceptions are to be interpreted strictly. The matter of further consideration
is that whether the alternative option (punishment of life inprisonment) is
unquestionably foreclosed or not and the court shall, as death penalty is the last
resort, in compliance of the provisions of Sub-Section 3 of Section 354 of the
Code of Criminal Procedure,, will assign special reasons for such
sentence, in the case of sentence of death".
53. In the light of what has been noted above, the moot point for
consideration before this court is as to whether this case is falling within the
"rarest of rare" category.:
53. Now, considering the facts of the present case in the background of
the relevant decisions or well recognised principles and observations
made on the aggravating and mitigating circumstances, we may turn to the
issue of striking a just balance between the mitigating and aggravating
circumstances in the present case.
(i) Mitigating circumstance No. 1 - Evidence on record
suggests that the present appellant was in love with the deceased. It might have
26
been a one sided love affair but, as stated by P.W. 10, deceased and the
accused appellant were in talking terms. Marriage card of the deceased has
also been brought on record and has been given a Exhibit number. The
marriage of the deceased was to be solemnized on 27th May, 2011. Thus, it
appears that due to extreme emotional disturbance or frustration the appellant
has committed murder of the deceased. Therefore, keeping in mind the
deposition of prosecution witnesses, especially close relatives of the deceased,
presence of mitigating circumstance no.1, as enumerated in Bachan Singh
case, cannot be denied in the facts of the present case.
(ii) Mitigating circumstance No. 2 : So far as mitigating
circumstance no. 2 is concerned, which is age of the accused appellant, from
the evidence on record, it appears that age of the accused is approximately
22 years as on the date of offence. Thus, he is quite young as on the date of
offence and therefore, presence of mitigating circumstance no. 2 cannot be
denied
(iii) Mitigating Circumstance No. 3 : Further, prosecution has
also failed to prove or bring on record, any antecedent of the appellant accused,
who is a young boy, pursuing his studies in Diploma in Engineering. The
murder has taken place out of extreme mental disturbance and frustration
and the State has also failed to prove that there is all chances of repetition of
such type of offences by the appellant. Thus, presence of Mitigating
Circumstance No. 3 cannot be denied by the State.
(iv) Mitigating Circumstance No. 4 : Thus, these facts cannot
be denied that the accused appellant, who is a young boy without any
criminal antecedent, is pursuing his studies of Diploma in Engineering and
has committed the offence due to extreme emotional disturbance and further
the State has also failed to prove that there is all chances of repetition of
such type of offence by the appellant accused. Therefore, there are all
chances of rehabilitation of the appellant, especially keeping in mind the
young age, absence of any antecedent and the fact that the whole incident
has taken place due to acute mental disturbance as the appellant was in
love with the deceased.
54. In view of aforesaid facts and circumstances and in the light of the fact
that the State has miserably failed to prove the absence of Mitigating
Circumstance No. 3 and 4, as mandated by the Hon'ble Supreme Court in the
case of (Bachan Singh v. State of Punjab, reported in (1980) 2 SCC 750,
27
para 260), we are not inclined to confirm the death sentence awarded to
the appellant by the trial court.
55. It has been pointed out by the learned A.P.P. appearing for the State
that it is a brutal murder committed in broad day light in presence of several
persons at St. Xavier college.
56. In this context, it is to be noted that Brutality alone is not sufficient to
award death sentence. In a sense every murder is brutal and every crime of
murder is cruelty. By brutality itself the case will not fall within the rarest of rare
dictum as it has been held by the Hon'ble Supreme court in the case of
Panchhi v. State of U.P., reported in (1998) 7 SCC 177
"......Brutality of the manner in which a murder was
perpetrated may be a ground but not the sole criterion for judging
whether the case is one of the 'rarest of rare cases' as indicated in
Bachhan Singh case. In a way, every murder is brutal, and the
difference between one from the other may be on account of
mitigating or aggravating features surrounding the murder."
(Emphasis supplied)
57. Since every murder is brutal, the distinguishing factors should be the
mitigating or aggravating features surrounding the murder. It has been held in
Bachan Singh case in paragraph no. 207 as under:
"207. We will do no more than to say that these are
undoubtedly relevant circumstances and must be given great
weight in the determination of sentence."
58. It has been held by the Hon'ble Supreme Court that primacy is to be
given to the mitigating circumstances, especially in the light of the decision in
the case of Vashram Narshibhai Rajpara v. State of Gujarat reported in
(2002) 9 SCC 168(10), which reads as under:
"10. Considering the facts of the case presented before
us, it is on evidence that despite his economic condition and
earnest attempt to purchase a house for the family after raising
loans, the wife and daughters were stated to be not pleased and
were engaging in quarrels constantly with the appellant. Though
they were all living together the continuous harassment and
constant nagging could have very well affected his mental balance
28
and such sustained provocation could have very well affected his
mental balance and such sustained provocation could have
reached a boiling point resulting in the dastardly act. As noticed
even by the High Court the appellant though hailing from a poor
family had no criminal background and it could not be reasonably
postulated that he will not get rehabilitated or that he would be a
menace to the society. The boy of tender age would also once for
all be deprived of the parental protection. Keeping in view all these
aspects, in our view, it could not be said that the imposition of life
imprisonment would not be adequately meet the requirements of
the case or that only an imposition of the extreme punishment
alone would do real or effective justice. Consequently, we direct
the modification of the sentence of death into one of rigorous
imprisonment for life, by partly allowing the appeal to that extent.
In other respects the appeal shall stand dismissed. The appellant
shall undergo the remaining period of sentence as above."
(Emphasis supplied)
59. Similarly, it has been held by the Hon'ble Supreme Court in the case
of Om Prakash v. State of Haryana reported in 1999 (3) SCC 90 that though
cry of the society is to be responded by the court, but the requirements as stated
by Bachan Singh case, i.e. dictum of balancing the mitigating and aggravating
circumstances is to be considered by the court because the sentencing court is
bound by the principle enunciated in the Bachhan Singh case and not in
specific terms to incoherent and fluid responses of the society.
60. It has been held by the Hon'ble Supreme Court in the case of
Dharmendrasinh v. State of Gujarat reported in (2002) 4 SCC 679, paragraph
21 as under:
"21. Now considering facts of the present case in the
background of our observations made in the preceding paragraph,
we take note of the fact that the appellant had been labouring
under the strain of suspecting the character of his wife. This fact is
mentioned by none else but by the complainant Ashaben herself in
her report. She also admitted in her statement in the court that
quite often there had been quarrel between the two on that count.
Though denied, a suggestion has been made to PW3 Ashaben in
her cross examination that the appellant had been telling her that
29
their sons were not born of him. It is true that there does not seem
to be any immediate cause before the commission of offence, yet
the fact remains that rightly or wrongly, such a painful belief was
being entertained by the appellant since long which constantly
engaged his mind as admittedly there had been quarrels on that
count between the two. Obviously he would have been brooding
under that idea, which perhaps he could not contain any more. It is
true that two innocent children lost their lives for no fault of theirs.
We also notice that dharia is a weapon, which is ordinarily to be
found in the house of any farmer or agriculturist in that area as
stated by PW3. He seems to have used the weapon as lying in the
house. The offence was obviously not committed for lust of power
or otherwise or with a view to grab any property nor in pursuance
of any organised criminal or anti-social activity. Chances of
repetition of such criminal acts at his hands making the society
further vulnerable are also not apparent. He had no previous
record."
(Emphasis supplied)
61. In the aforesaid case the court has acknowledged that the crime
committed was no doubt heinous and unpardonable and two innocent children
lost their lives for no fault of theirs, but court has to look at the mitigating
circumstances. The offence is obviously not committed out of lust of power or to
grab the property or in pursuance of any organized crime or anti social activity
and there was no previous criminal record in that case. Chances of repetition of
such criminal act at the hands of the accused making the society further
vulnerable are also not apparent.
62. Such chances are also not present in the present case and therefore,
we are not inclined to confirm the sentence of death awarded by the trial court.
Thus, by the virtue of this judgment some more criteria have been added, i.e.
the murder, if not committed for lust of power or otherwise or with a view
to grab property or if not committed as organised criminal or anti social
activity, the case will not fall within the purview of rarest of rare case.
Aggravating circumstances
63. Counsel for the State has pointed out that out of 13 aggravating
circumstances, present case has the ingredient of circumstance number 12 and
13 and pointed out that firstly this is a premeditated, cold blooded murder
30
without provocation and secondly the crime committed was so brutal that it
pricks not only the judicial conscience but even the conscience of the society.
Presence of these two circumstance in the case in hand have been highlighted
by the A.P.P. as the grounds on which death sentence may be confirmed by this
Court.
64. We are not accepting this contention because mere presence of these
two circumstances are not sufficient and the court has to see also that any of the
mitigating circumstances is present or not. Otherwise, as stated herein above,
every murder is brutal and every crime of murder is cruel and it will always
shock the conscience of the society, but that is not sufficient. As stated herein
above, the main or key factor that has to be appreciated by the court for
awarding or otherwise the death sentence is to see whether alternative option is
foreclosed or not and the alternative option is punishment of life imprisonment in
case there is any chance that the accused can be rehabilitated. Keeping in mind
the young age of the accused, absence of antecedent and the fact that the
whole offence has been committed due to extreme mental disturbance or
frustration, this court considers that there are enough chances of rehabilitation
of the accused and the case is not falling in the category of 'rarest of rare' cases.
65. It has been held by the Hon'ble Supreme Court in the case of
Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashrtra, reported
in (2009) 6 SCC 498 in paragraph 157, 158, 159, 169 and 170 as under:
"157. The doctrine of proportionality, which appears to
be the premise whereupon the learned trial judge as also the High
Court laid its foundation for awarding death penalty on the
appellant herein, provides for justifiable reasoning for awarding
death penalty. However, while imposing any sentence on the
accused the court must also keep in mind the doctrine of
rehabilitation. This considering Section 354 (3) of the Code, is
especially so in the cases where the court is to determine whether
the case at hand falls within the rarest of the rare case.
158. The reason assigned by the courts below, in our
opinion, do not satisfy Bachan Singh test. Section 354 (3) of the
Code provides for an exception. General rule of doctrine of
proportionality, therefore, would not apply. We must read the said
provision in the light of Article 21 of the Constitution of India. Law
laid down by Bachan Singh and Machhi Singh interpreting Section
31
354(3) of the Code should be taken to be a part of our
constitutional scheme.
159. Although the Constitutional Bench judgment of
the Supreme Court in Bachan Singh did not lay down any
guidelines on determining which cases fall within the rarest of rare
category, yet the mitigating circumstances listed in and endorsed
by the judgment given reform and rehabilitation great importance,
even requiring the State to prove that this would not be possible,
as a precondition before the court awarded a death sentence. We
cannot therefore determine punishment on grounds of
proportionality alone. There is nothing before us that shows that
the appellant cannot reform and be rehabilitated.
169. The accused persons were not criminals. They
were friends. The deceased was said to have been selected
because his father is rich. The motive, if any, was to collect
money. They were not professional killers. They have no criminal
history. All were unemployed and were searching for jobs. Further,
if age of the accused was a relevant factor for the High Court for
not imposing death penalty on Accused 2 and 3, the same
standard should have been applied to the case of appellant also
who has only two years older and still a young man in age.
Accused 2 and 3 were as much a part of the crime as the
appellant. Though it is true, that it was he who allegedly proposed
the idea of kidnapping, but at the same time, it must not be
forgotten that the said plan was only executed when all the
persons involved gave their consent thereto.
170. It must be noted that the discretion given to the
court in such cases assumes onerous importance and its exercise
becomes extremely different because of the irrevocable character
of death penalty. One of the principles which we think is clear is
that (sic if) the case is such where two views ordinarily could be
taken, imposition of death sentence would not be appropriate, but
where there is no other option and it is shown that reformation is
not possible"
(Emphasis supplied)
66. In view of the aforesaid decision also and after making a comparison
32
between the aggravating circumstances and mitigating circumstances in the
facts of the present case, we are of the opinion that mitigating circumstances
outweighs the aggravating circumstances and therefore, we are not inclined to
confirm the sentence of death awarded by the trial court.
67. learned counsel for the appellant submitted that death sentence
awarded to the appellant accused should not be confirmed by this court in the
light of the principle laid down by the Hon'ble Supreme Court in Ramnaresh &
Others v. State of Chhattisgarh reported in (2012) 4 SCC 257, especially in
paragraph no. 88 :
"88. While we cumulatively examine the various
principles and apply them to the facts of the present case, it
appears to us that the age of the accused, possibility of the death
of the deceased occurring accidentally and the possibility of the
accused reforming themselves, they cannot be termed as "social
menace". It is unfortunate but a hard fact that all these accused
have committed a heinous and inhumane crime for satisfaction of
their lust, but it cannot be held with certainty that this case falls in
the "ratest of rare" cases. On appreciation of the evidence on
record and keeping the facts and circumstances of the case in
mind, we are unable to hold that any other sentence but death
would be inadequate."
(Emphasis supplied)
68. In view of this aforesaid decision also, keeping in mind the
aggravating and mitigating circumstances emerging out of the evidences on
record, we are not inclined to confirm the sentence of death awarded to the
present appellant accused.
69. We have also perused the reasons given by the learned trial court for
awarding the sentence of death. It appears that the learned trial court has solely
relied upon the decision rendered by the Hon'ble Supreme Court in the case of
Machhi Singh vs. State of Punjab reported in (1983) 3 SCC 470 and
especially only the aggravating circumstances, but as stated herein above, as
per principle enunciated by the Constitution Bench decision in Bachan Singh's
case the sentencing court as well as the appellate court has to appreciate both
aggravating as well as mitigating circumstances as stated herein above.
70. Several mitigating circumstances are present in the case of the
33
present appellant accused based on evidence on record. The terms like 'pre
planned cold blooded murder' or 'cruel murder' per se, will not bring the case in
the exception. Supreme Court has held that primacy is to be given to the
mitigating circumstances because the death sentence stands in a very different
footing from all other type of punishment.
71. Now, the question before this Court is regarding life imprisonment of
fixed term, i.e. more than 14 years.
72. Counsel appearing for the State has heavily relied upon the decision
rendered by the Hon'ble Supreme Court in the case of Swamy Shraddnanda
(2) v. State of Karnataka reported in (2008) 13 SCC 767, especially paragraph
84 and 94:
"84. To the question whether any specific orders are
passed by the Government to commute the sentence of life
imprisonment to imprisonment for 20 years or less, the answer is
given in the note, as follows:
"In addition to what is stated in Para 3.1, it may be
added that cases of life imprisonment pass through the Advisory
Board and their recommendations are examined by the Head of
the Department viz. Additional Director General of Police and
Inspector General of Prisons who later forwards them to the
Government for passing final orders. That is how the sentence of
life imprisonment is commuted for a term of 20 years or less as
per provisions of Section 54 and 55 IPC and Section 433-A
Cr.P.C."
It is further stated in the note as follows:
"Experience shows that in respect of life convicts an
assumption can be made that the total sentence is 20 years and if
the convict earns all categories of remissions in the normal course
it may come to 6 years which is less than one-third of 20 years.
This is also in consonance with Order 214(c) of the Prison
Mannual which for the purposes of the Rules deems a sentence of
imprisonment for life to be a sentence of imprisonment for twenty
years.
94. In the light of the discussions made above we are
clearly of the view that there is a good and strong basis for the
34
Court to substitute a death sentence by life imprisonment or by a
term in excess of fourteen years and further to direct that the
convict must not be released from the prison for the rest of his life
or for the actual term as specified in the order, as the case may
be."
In the aforesaid decision, Hon'ble Supreme Court has held that
considering the gravity of the offence, appellant accused may be sentenced to
undergo imprisonment for life, but he may not be released earlier within 20
years.
Counsel for the State has also relied upon the decision rendered by
the Hon'ble Supreme Court in the case of Ramnaresh & Ors. v. State of
Chhattisgarh reported in (2012) 4 SCC 257, especially at paragraph 88 and 89
as under:
"88. While we cumulatively examine the various
principles and apply them to the facts of the present case, it
appears to us that the age of the accused, possibility of the death
of the deceased occurring accidently and the possibility of the
accused reforming themselves, they cannot be termed as "social
menace". It is unfortunate but a hard fact that all these accused
have committed a heinous and inhumane crime for satisfaction of
their lust, but it cannot be held with certainty that this case falls in
the "rarest of rare" cases. On appreciation of the evidence on
record and keeping the facts and circumstances of the case in
mind, we are unable to hold that any other sentence but death
would be inadequate.
89. Accordingly, while commuting the sentence of
death to that of life imprisonment (21*years), we partially allow
their appeal only with regard to the quantum of sentence."
73. In the aforesaid decision Hon'ble Supreme Court has held that
appellant may be sentenced to undergo imprisonment for life for minimum more
than 20 years.
74. In view of the decisions rendered by the Hon'ble Supreme Court as
stated above and considering the facts and circumstances of the case and
keeping in mind the evidence and also taking note of fact that appellant is of
approximately 22 years of age as on the date of the offence and was also
35
pursuing his studies and there are no antecedent and the whole incident has
taken place out of extreme emotional disturbance or frustration and, as stated
herein above, that there are all chances of rehabilitation of the appellant, we,
hereby, impose, instead of death sentence, the punishment of life imprisonment.
75. Accordingly, while commuting the sentence of death to that of life
imprisonment, we partially allow the appeal only with regard to the quantum of
sentence. The appellant shall serve out the sentence of imprisonment for life.
76. The Death reference is answered in negative.
77. We took notice of the exhaustive investigation carried out by the
investigating officer in the present case as in general, in the State of Jharkhand,
we have come across such type of accurate and scientific investigation in very
few cases . We hope that in other cases also investigation be carried out with
equal degree of accuracy. A copy of this order will be sent to the Director
General of Police and Secretary, Department of Home, Govt. of Jharkhand.
(D.N. Patel, J.)
(Prashant Kumar, J.)
Jharkhand High Court, Ranchi
Dated 6th September, 2012
s.m./ N.A.F.R.