Gauhati High Court
Death Sentence Ref./1/2019 on 28 April, 2021
Author: Sudhanshu Dhulia
Bench: Sudhanshu Dhulia, Manash Ranjan Pathak
GAHC010045982019
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
1. CRIMINAL APPEAL (J) NO.37 OF 2019
Shri Krishna Rajgaur @ Sagar,
Son of Late Ratan Rajgaur,
Resident of Salmara Bagan,
PS & District: Golaghat, Assam.
........Appellant
-Versus-
The State of Assam,
Represented by the Public Prosecutor, Assam.
........Respondent
For the Appellant : Mr. A.M. Bora, Senior Advocate.
Mr. A. Dhar, Amicus Curiae
For the Respondents : Mr. M. Phukan,
Additional Public Prosecutor, Assam.
2. DEATH SENTENCE REFERENCE NO.1 OF 2019
The State of Assam,
Represented by the Public Prosecutor, Assam.
........Petitioner
-Versus-
Shri Krishna Rajgaur @ Sagar,
Son of Late Ratan Rajgaur,
Resident of Salmara Bagan,
PS & District: Golaghat, Assam.
........Respondent
-2-
For the Petitioner : Mr. M. Phukan,
Additional Public Prosecutor, Assam.
For the Respondent : Mr. A.M. Bora, Senior Advocate.
Mr. A. Dhar, Amicus Curiae
-BEFORE-
HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
Reserved on: 26.04.2021
Delivered on: 28.04.2021
JUDGMENT & ORDER
(Sudhanshu Dhulia, CJ.)
These two cases, i.e. Criminal Appeal (J) No.37/2019 and the Death Reference No.1/2019 have arisen out of the Sessions Trial No. 86(N)/2017.
The two cases were heard together on virtual mode.
Heard Mr. A.M. Bora, learned Amicus Curiae for the appellant. Also heard Mr. M. Phukan learned Additional Public Prosecutor, Assam. We first decide the Criminal Appeal No.37 of 2019.This is an appeal filed by the appellant/accused, namely, Krishna Rajgaur @ Sagar, who has been convicted under Sections 302/363/201 IPC and inter alia has been awarded the death sentence under Section 302 IPC by the learned Additional District & Sessions Judge, Fast Tract Court, Hojai at Sankardev Nagar vide judgment dated 22.01.2018 passed in Sessions Case No.86(N)/2017.
2. Facts of the case are as follows:-
On 06.02.2017, the father of the deceased/victim lodged an FIR before the Lumding Police Station, District - Hojai, which was registered as Lumding Police Station Case No.23/2017. As per the informant, his seven -3- years old daughter was kidnapped at about 5:00 PM the last day, i.e. on 05.02.2017, by the accused Krishna Rajgaur @ Sagar, who was working in his house. The accused had taken his daughter to the market at Lumding with his permission, but as they did not return that day, the FIR was lodged, with allegation of kidnapping against the accused. The age of the accused at the relevant point of time was thirty-one years and the age of the victim was seven years.
3. The accused could not be arrested immediately as he was absconding and was finally arrested on 10.03.2017 from the neighbouring State of Nagaland, where he was hiding. On his arrest, the accused had confessed before the police that he had kidnapped the girl and how he raped and strangulated the girl thereafter and then in order to remove all evidence, he threw the body inside the jungle. On his pointing out, the recovery was made from the jungle of the skull and bone of human being and certain clothing of the victim including blanket etc., were recovered. A seizure memo etc. was prepared. The bones and other articles were sent for forensic examination.
4. Meanwhile after the recovery, an inquest report was prepared on 14.03.2017 submitted by Mr. Bonny Inam Shadab, Executive Magistrate, Hojai (PW-10). The inquest report bear the signatures of the witnesses. The inquest report dated 14.03.2017 reads as under:-
"INQUEST REPORT Time- 4.30 PM Date- 14/03/2017 I Borry Mam Shadab, ACS, Executive Magistrate, Hojai arrived in Lumding forest reserve near eta bhatta chariali under Lumding Police Station to perform inquest of a body. But after arriving at -4- the site alongwith O/C Lumding P.S., it found that only skeleton was found that too incomplete. At first a skull was found which has burnt sign in it, after that while searching the neighbouring forest area, more bones of was found. Alongwith the bones a blue, red and white chequered blanket was found, moreover a red skirt, black t-shirt, purple panty, red and white towel (Gamosa) was also found in the area. The site from where the skeleton was recovered was shown by the accused who was apprehended by Lumding P.S. on suspect. Though the bones cannot be identified, the cloths were identified by Sri Parma Chauhan and Sri Kanti Devi, who identified themselves to be the parent of the victim. Hence the cause of death cannot be ascertained, to find out the cause of death, the bones to be sent for post mortem."
5. The FLS report dated 29.07.2017 state as under:-
"1. Osteological examination reveals that the skeletal bone under exhibit No.Bio.3014 and Bio.3015 (as marked here) belongs to human individual.
2. The age of the deceased at the time of death could be estimated to be less than 18 years.
3. Gender discrimination of the skeletal bone under exhibit No.Bio.3014 and Bio.3015 (as marked here) is inconclusive due to lower age group.
4. Chemical analyses gave negative result for test of common poison as such cause of death could not be ascertained."
6. As already stated above, the accused was arrested on 10.03.2017 from Dimapur, Nagaland. This arrest was made on the basis of the call details of the mobile number of the accused. When the accused was -5- arrested at Dimapur, the said mobile phone on which his call details were being traced was seized and produced as Exhibit-7. After his arrest, the accused was brought to the Lumding Police Station and produced before the Magistrate on 11.03.2017 and the Court granted five days' remand to the police during which as we have already stated above, the recovery was made.
7. The police after its investigation finally lodged charge-sheet before the concerned Magistrate and subsequently by order dated 06.12.2017 matter committed to Sessions, and later transferred to the Court of learned Additional District & Sessions Judge, Fast Track, Hojai. Three charges were framed under Sections 363/302/201 IPC.
8. The prosecution in order to prove its case presented as many as ten witnesses.
9. PW-1 (Parama Chauhan) is the informant and the father of the victim, who states in his examination-in-chief that the occurrence took place about one year two months back and on that day (05.02.2017) at about 5:00 PM, accused Sagar had gone to sell "Gur" (jaggery) at Lumding APTF market and he took the daughter of PW-1 along with him to the market but since they did not return even till the next day, he lodged the FIR, where he named the accused Sagar of kidnapping his daughter. He further states that prior to the incident since two months back, the accused Sagar was residing in his house. He then goes on to say that after one month of the incident, the police arrested the accused Sagar from Dimapur (Nagaland), and after his arrest, police recovered the dead body of his daughter from Paschim Lumding jungle on pointing out of the accused. Since this particular witness (PW-1) was also a witness to the recovery and -6- when the exhibits of the recovery memo are being shown to him, he recognizes that the signatures on the recovery memo are his and he was present on the recovery. He further says that certain wearing apparels of his daughter and one towel and a blanket were recovered nearby the dead body. Later on he came to know how the accused murdered his daughter and kept the body concealed in the forest reserve. In his cross- examination, he answered that the body recovered was decomposed and he recognized his daughter not by the bones and the skulls but by the clothes of his daughter, which she was wearing on that fateful day as the clothes were also recovered near the bones and the skull. He further states that the clothes were close to the remains of the dead body and that police had also recovered a blanket and a towel from the site. He further states that at the time of recovery of the dead body, around 20/30 people had also gathered and the body of the deceased was not in an identifiable condition. He admits that his wife had not gone with him at the time of the recovery of the dead body. To the question being put by the defence, he denied that the recovered dead body was not of his daughter and all the cloths did not to belong to his daughter. He further states that when his daughter had left the house, she was wearing the school uniform, which is white shirt and red skirt, which are the ones recovered from the jungle.
10. PW-2 (Srikanti Devi) is the mother of the victim, who reiterates the statement given by her husband that the accused had taken her daughter at 5:00 PM on the fateful day of the occurrence and since they did not return, they lodged the FIR, etc. She says that on the fateful day, the accused had taken about 10/12 tin of jaggery to the market and had also taken their daughter with him. She knew the accused as the accused and his wife used to reside in her village. During cross-examination, she -7- denied the question put by the defence that the accused had not kidnapped her daughter or had not killed her.
11. PW-3 (Kamalesh Chauhan) is another resident of the same village as that of the victim. He knows the victim as well as the informant and the parents of the victim. He reiterates the facts which have been stated by PW-1 and PW-2 earlier as to how the accused had taken the daughter of the informant to the market and how they did not return etc. In his cross- examination, though he admits that at 5:00 PM, he was actually working in the sugarcane field and when he returned from the field, he heard from his mother that the victim had been taken by the accused to the market and they had not returned. He further states that the accused, after he was arrested on 10.03.2017, confessed before them as well as before police that he had killed the victim and had also raped her. He admits that when the confession was being made, the accused was in police custody and that police had tortured him.
12. PW-4 (Sanem Keswari Devi), who is about twenty years of age, is the sister of the victim. She says that the victim is her sister and the informant is her father and reiterates the statements made by the earlier witnesses. In her cross-examination, she says that she was not interrogated by the police and at the time of the occurrence, she was residing in her grandmother's house and she had not seen when police had arrested the accused etc., but she admits that she had seen the accused taking her sister to the market.
13. PW-5 (Panchanand Chauhan) is also a resident of the same village and he also reiterates that the accused had taken the informant's seven years old daughter to the market on the fateful day and how he did -8- not return. In his cross-examination, he admits that when the accused was arrested, he has made a confession before the entire village as well as before the police that he raped the girl and killed her.
14. PW-6 (Ram Narayan Chauhan) is another resident of the village. He reiterates that the accused used to stay at the house of the informant and because of the trust he had generated with the family that he took the informant's daughter to the market on 05.02.2017 thereafter, did not return. In his cross-examination, he admits that he was a witness to the recovery and admits his signature with recovery memo etc.
15. In this case investigation has been done by two Police Officers. PW-9, Shri Rudra Kanta Bordoloi, who was at the relevant time working as an Attached Officer at Lumding Police Station and subsequent to his transfer, the investigation was carried out by PW-7, Shri Ananta Ram Barman, who ultimately filed the charge-sheet. The statements of PW-9 are extremely relevant.
PW-9 stated on oath before the Court that on 06.02.2017, he was working as an Attached Officer at Lumding Police Station and on that day, one Parama Chauhan had lodged an FIR regarding kidnapping of his minor daughter. He has also mentioned the name of the accused as Sagar @ Krishna Rajgaur. After lodging the FIR, Lumding Police Station Case No.23/2017 was registered and the case was assigned to him for investigation and, therefore, he proceeded to record the statement of the complainant (PW-1), Sikanti Devi, Kanteswari Kumari and Kamalesh Chauhan and others. He then interrogated one suspect, namely, Kanti Ram Dalu. He was a suspect on the basis of the call details of the mobile phone belongs to the complainant but in his interrogation, Kanti Ram Dalu informed him that his mobile was stolen earlier by one Sagar @ Krishna -9- Rajgaur on 10.03.2017. This phone was tracked and it was then known that the accused was in Nagaland and accordingly this witness (PW-9, Investigating Officer) along with the other staff members proceeded to Nagaland and the accused (Sagar @ Krishna Rajgaur) was arrested on 10.03.2017. A mobile handset and a sim card bearing No.9174221829562 was also seized from the possession of the accused. A seizure memo was also prepared. Thereafter, the accused was brought to Lumding. On 11.03.2017, on his first interrogation, the accused initially stated that he had taken the victim to the Lumding. Thereafter, he took the victim to Dimapur and he sold her to Nagas. On that day, the accused was produced before the Court at Hojai, Sankardev Nagar along with a request for ten days' police custody. The Court, however, gave custody of only five days. On 14.03.2017, he was interrogated and the accused at this time confessed his guilt that he had taken the victim to Lumding APTF market to sell jaggery and then had purchased two blankets and took the victim to a hotel and served her some food. Thereafter, he took the victim to Lumding forest reserve jungle on his bicycle and raped her. But as she was a minor, she became senseless and started bleeding. Thereafter, he becomes afraid and strangulated her to death. After killing her, he again raped her. Then he wrapped her body with a blanket and threw away the dead body in the jungle and fled away to Dimapur by train. The accused also confessed that he is ready to recover the body. He also confessed that he has committed many sins and now he does not want to live and, therefore, he is confessing.
16. After recording the above statement of the accused, PW9 (I.O) then states that he informed the matter to the concerned SP, DSP and Deputy S.P., Hojai and informed the Executive Magistrate for conducting -10- the inquest and accordingly the Deputy Commissioner, Hojai deputed one Executive Magistrate to Lumding Police and thereafter, they all proceeded to Lumding forest for the recovery. He then states how the recovery was made, who were present at the time of the recovery etc. This witness was again put to cross-examination by the defence but nothing worthwhile has come.
17. The other witness, who completed the investigation, i.e. PW-7, namely, Shri Ananta Ram Barman, who states that after the search, recovery had been made. Thereafter, he completed the investigation and filed the charge-sheet. He further states that he did not record any statement under Section 161 Cr.PC since these statements had been recorded earlier.
18. PW-8 (Athang Singsan) is the person, who had done the forensic examination of the bone. He states what he has already given in the forensic report that the deceased was below eighteen years of age etc. and that the cause of death could not be ascertained.
19. PW-10 (Bonny Inam Shadab) is the formal witness, who is the Executive Magistrate, Hojai.
20. Based on the evidence, as discussed above, the appellant has been convicted under Sections 302/363/201 IPC vide judgment dated 22.01.2018 of the learned Additional District & Sessions Judge, Fast Tract Court, Hojai at Sankardev Nagar.
21. The learned Amicus Curiae appearing for the appellant would argue that it is a case of circumstantial evidence and there is no eye witness to the crime. He, however, fairly admits that there are more than -11- one reliable witnesses as to the "last seen". This exists in the form of PW- 1, PW-2, PW-4, PW-5 and PW-6, whose statements are trustworthy and inspire the confidence of the Court. The learned Amicus Curiae would, however, raise doubt as to the recovery. According to him, the forensic report does not conclusively state that the bones are of the victim. In fact, there is no report even to the effect that the bones are of a girl child. Moreover, it has also come on record before the Court in the statement of the PW-10 that a week or so prior to the recovery, there was a forest fire in the same area and yet how could the undergarments and the cloths of the girl could be safe is still a mystery. He would, therefore, argue that the recovery is doubtful.
22. To the contrary, however, though Mr. M. Phukan, learned Additional Public Prosecutor, Assam does not deny that there was a fire in the forest but fire was not in the entire forest. It was in patches of the forest area. The bones also have fire marks on them which proves that there was a fire. The victim, however, had been identified by her cloths, her undergarments, skirt and her blouse, which were recovered from the scene, which are being identified by her father as the cloths she was wearing on the fateful day as that was her school uniform. There are independent witnesses to the recovery as well. Therefore, the recovery cannot be doubted, he submits.
23. We agree with the submissions of the learned Additional Public Prosecutor, Assam. Even if the skull and the bones are not conclusive proof as to the identity of the deceased, her clotes are. They were identified by the father of the deceased as the cloths the deceased was wearing on the fateful day. Apart from the last seen evidence, which is never in doubt, as well as the recovery, which is also trustworthy, there is another important -12- factor which goes against the accused and which to our mind is the most important factor and that is the conduct of the accused immediately after the incident. How the accused conducts himself before or after the incident is an important factor to be considered by the Court and it is a relevant fact as per Section 8 of the Evidence Act, 1872. Section 8 of the Evidence Act reads as under:-
"8. Motive, preparation and previous or subsequent conduct. -- Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.
The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto."
24. It is a proven fact that the accused took the seven year old daughter of the informant to the market on 05.02.2017, ostensibly for selling jaggery and did not return. It is again a fact that the accused who was staying in the house of the informant, remained absconding for about one month and was finally caught in Nagaland by the police on 10.03.2017. On his arrest, the bones and the cloths of the deceased were recovered. This Court is not for a moment considering the statement made by the accused before the police under Section 161 Cr.PC as the same are not admissible in law but the conduct of the accused is a relevant fact, which has to be considered.
-13-25. Under these circumstances, this Court has no doubt in its mind that though this is a case of circumstantial evidence yet the entire chain is complete. All circumstances and all evidences are pointing out towards one fact and all, which is the guilt of the accused. We take no notice of the fact that the accused had raped the girl when she was alive or even when she was not alive, because statement to that effect had been made before the police which is not admissible. But his conduct, the last seen evidence and the recovery made by him clearly proved that he had kidnapped the victim and thereafter killed her. Therefore, we uphold the conviction of the accused under Section 302 IPC.
26. Under these circumstances, we also uphold the conviction of the accused/appellant under Section 363 IPC as well as under Section 201 IPC as the prosecution has been able to prove its case beyond reasonable doubt that the accused/appellant had indeed committed these offences. We also uphold the sentence imposed by the trial court under Section 363 IPC as well as under Section 201 IPC.
27. Having made the aforesaid determination and having upheld the conviction of the accused/appellant on all counts, we must now examine whether death penalty is an appropriate penalty in the present case and whether this case falls under the category of "rarest of rare" cases.
28. Section 302 of the Indian Penal Code (IPC) prescribes a punishment of death or imprisonment for life. Under Sub-section (3)1 of Section 354 of the Code of Criminal Procedure (Cr.PC), 1973 when the conviction is for an offence punishable with death or in the alternative 1 (3) 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.
-14-imprisonment for life or imprisonment for a term of years, the judgment must give reasons for the sentence awarded and in the case of sentence of death, "special reasons" must be given. In other words, imprisonment for life is the Rule and death sentence is an exception.
29. The present Code of Criminal Procedure is of the year 1973, but in the earlier Criminal Procedure Code of 1898, prior to the amendment made therein in 1955, the provision was quite different from what is today. It read as under:-
"If the accused is convicted of an offence punishable with death and the court sentences him to any punishment other than death, the court shall in its judgment state the reason why sentence of death was not passed."
30. In other words, previously in a case of conviction of murder, death sentence was the Rule and life imprisonment was an exception.
31. The law is now settled in Bachan Singh -Vs- Union of India2 which is a decision by a Constitutional Bench. As per Bachan Singh death sentence can be awarded only in "rarest of rare" cases. Guidelines have also been given to determine as to what would be "rarest of rare" case and what would be the aggravating or mitigating circumstances to determine whether the case is a "rarest of rare" case, befitting the ultimate punishment of death. The principle of "rarest of rare" cases was further emphasised rather sharpened in Machhi Singh & Ors. -Vs- State of Punjab3. Machhi Singh reiterated the proposition of law as laid down in Bachan Singh as follows:-
2 AIR 1980 SC 898 3 (1983) 3 SCC 470 -15- "(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised."
32. In order to apply the above guidelines, inter alia, the following questions may be asked and answered, the Apex Court said, which are as under:-
"(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?"
33. We have already referred above that under Section 354(3), "special reasons" have to be assigned for awarding a death sentence. Section 235(2) is another provision of the Code which mandates that when a person has been convicted, then the Court shall first hear the accused on the question of sentence before passing the sentence. The above two provisions protect valuable rights of a defendant.
-16-34. We must now, therefore, examine the "special reasons" assigned by the trial Court for awarding death sentence to the appellant in the present case, as mandated under Sub-section (3) of Section 354 Cr.PC., and whether he was properly heard on the question of sentence. But before we examine the reasons given by the trial Court for imposing death sentence, we must re-appreciate the facts, and record, that the appellant before this Court was never charged for rape or sexual assault of any kind. He was charged under Section 363 IPC for kidnapping; under Section 201 IPC for removing of evidence and, then, of course, for murder under Section 302 IPC. He was never charged for rape or any sexual offence. No such charge was framed by the trial Court and logically, therefore, the defence was never given an opportunity of any explanation, at any stage whatsoever, to place its defence on the charges of rape. Yet, while giving the reason for awarding death penalty to the appellant, strangely, this is the only reason assigned by the trial Court. Let us quote the findings of the trial Court for better appreciation of the case. The learned judge of the trial court, after giving a finding of conviction under Sections 302/363/201 IPC, states as follows, on the question of sentence:
"Correct it is, that the charge under section-376 IPC was not framed in this case yet the same cannot be sent to Coventry or ostracize in assessing the aggravating circumstances in this case. Thus, the aggravating circumstances against the convict are: 1. The convict Krishna Rajgaur @ Sagar breached the trust of the owner/informant who was giving food and shelter to him. 2. The offence of rape and murder committed by the convict was premeditated. 3. He has committed rape upon most defenseless 7 years old minor girl. 4. Even after death of victim girl, he committed rape upon dead body of victim girl/Necrophilia. Thus, -17- on existence of such mitigating and aggravating circumstances and careful evaluation thereof after weighing it, I find the Aggravating circumstances are more grave and serious than the mitigating circumstances, and therefore, in my pensive opinion, the convict Krishna Rajgaur @ Sagar does not deserve leniency in sentences."
35. In the present case, a charge, for which the accused had never faced trial, becomes the very basis for the trial Court to award the punishment of death on him which, in our view, is a gross illegality committed by the trial Court, to say the least. The reasons assigned by the trial court are no reasons, leave aside "special reasons" in the eyes of law. In other words therefore the trial court has not assigned any "special reasons" for awarding the ultimate punishment of death to the convict.
36. All the same, this Court must examine both the aggravating and the mitigating circumstances in the present case. A seven years old girl child has been put to death while she was in the custody of the appellant. A helpless and innocent child has been murdered by a person who was supposed to take care of her and to return her to the safety of her home. There is no doubt that the appellant has committed murder. In spite of the fact that it is a case of circumstantial evidence but, as we have already examined, the chain of circumstances are complete and all the circumstances point out to nothing but to the guilt of the accused/appellant. What is, however, not been proved is as to how the child was put to death. Yet what weighed in the mind of the trial Court was the statement made by the appellant before the police under Section 161 Cr.PC where he is said to have confessed to his crime and that he had raped the child not only when she was alive but even after she was dead, -18- and that he strangulated her to death. But since it is ultimately a statement made before the police, it can never be taken as evidence. Therefore, it is only a mere conjecture that the victim girl/child was strangulated to death and that she was raped, as it is only based on the statement of the accused/appellant. There is no other evidence, apart from the statement of the accused, regarding strangulating the victim to death or as to her rape. The forensic evidence is of little help. All it discloses is that bones and skulls, which were discovered, are of a person below eighteen years of age. Therefore, whether the victim was raped or murdered in a heinous and brutal fashion has not been proved by the prosecution. Therefore, this could never have been taken as an aggravating factor against the accused/appellant, while sentencing him to death.
37. Now, let us examine the mitigating factors. The accused/ appellant was about thirty one years of age at the time of the murder of the girl. He has a wife, as it has come in the statement of PW2. He also has no criminal history. There is just one act of murder, albeit heinous murder of a girl child, assigned to the accused/appellant on which he is presently in appeal. There is no finding given by the trial Court that the convict can never be reformed, considering he was only thirty one years of age at the time of the commission of crime. In Santosh Kumar Satishbhushan Bariyar -Vs- State of Maharashtra4, the Hon'ble Apex Court, after discussing the evidence in detail, had come to the conclusion that death penalty should only be imposed when the other options of alternative punishment of life imprisonment has been foreclosed, and where there is a categorical finding that reformation is not possible. In the 4 (2009) 6 SCC 498 -19- present case, the trial Court has not even discussed this aspect. There is no finding whether any reformation is possible in the case of the present appellant.
38. We may also refer here a case decided by the Hon'ble Apex Court in Nand Kishore -Vs- State of Madhya Pradesh5. In that case, an eight year old girl child was raped and murdered and the penalty of death imposed by the trial Court was confirmed by the High Court. In this case, the Hon'ble Apex Court though upheld the conviction but converted the death sentence to life imprisonment as it was not "rarest of rare" cases under the facts and circumstances of the case.
39. In another case, i.e. Viran Gyanlal Rajput -Vs- State of Maharashtra6, a thirteen year old girl child was raped and murdered and again a death sentence was imposed by the trial Curt and confirmed by the High Court. Again in this case although the conviction was upheld but sentence was converted from death to life imprisonment. In this case as well, we do not find that it is a case where law's most severe penalty, which is death penalty, should be imposed on the appellant/accused.
40. In view thereof we are of the considered opinion that it is not a case in the category of "rarest of rare cases", and therefore the appellant is not liable to be sentenced to death. The punishment of life imprisonment will meet the ends of justice. We, therefore, set aside the sentence of death to that of life imprisonment and to that extent, the criminal appeal is partly allowed.
5 (2019) 16 SCC 278 6 (2019) 2 SCC, 311 -20-
41. We make it very clear that the direction given by the trial Court regarding compensation to the victim's family under Victim Compensation Scheme from District Legal Services Authority, Nagaon shall remain and shall be complied with by the appropriate authority.
DEATH SENTENCE REFERENCE NO.1 OF 2019
42. Since we have already partly allowed the criminal appeal, where we have upheld the conviction but converted the death sentence to life imprisonment, we hereby also decline to confirm the death sentence awarded by the trial court. The appellant, is, however, sentenced for imprisonment for life.
The two amicus curieas, Sri A. M. Bora, learned senior counsel, and Sri A. Dhar, learned counsel, who have assisted this court in these cases, shall be given the prescribed remuneration by the Gauhati High Court Legal Services Authority, within three days, if not already given.
JUDGE CHIEF JUSTICE M. Sharma /RK/Benoy/Pradip Comparing Assistant