Andhra Pradesh High Court - Amravati
The State Of Andhra Pradesh vs Kunchala Sasi Krishna on 31 January, 2025
Author: K.Suresh Reddy
Bench: K.Suresh Reddy
THE HON'BLE SRI JUSTICE K.SURESH REDDY
AND
THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY
CRIMINAL APPEAL No.190 OF 2022 & R.T.NO.1 OF
2022
COMMON JUDGMENT:
(per the Hon'ble Sri Justice K.Sreenivasa Reddy) The appellant herein is the accused in Sessions Case No.85/S/2021 on the file of the Special Sessions Judge- cum-IV Additional District and Sessions Judge, Guntur (hereinafter referred to, as 'the Sessions Judge').
2. The appellant/accused was tried for the offences punishable under Sections 354D and 302 of the Indian Penal Code, 1860 (for short, 'IPC') and Sections 3 (2) (va) and 3 (2) (v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (for short, 'the Act, 2015'). Vide the impugned judgment dated 29.04.2022 in the aforesaid Sessions Case, the Sessions Judge found the appellant/accused guilty of the aforesaid charges, accordingly convicted him and sentenced -to death penalty by way of hanging by neck till he is dead and to pay a fine of Rs.1,000/-, in 2 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 default to suffer simple imprisonment for a period of one month, for the offence punishable under Section 302 IPC, subject to confirmation by this Court under Section 366 CrPC; to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.500/- in default to suffer simple imprisonment for 15 days, for the offence punishable under Section 354D IPC; to undergo rigorous imprisonment for life and to pay a fine of Rs.500/- in default to suffer simple imprisonment for a period of 15 days for the offence under Section 3 (2) (v) of the Act, 2015; and to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.500/- in default to suffer simple imprisonment for a period of 15 days for the offence under Section 3 (2) (va) of the Act, 2015.
3. The substance of charges as against the accused is that on 15.08.2021 at about 9.40 am, in front of Sri Srinivasa Vilas Hotel, Kakani Road, Paramayakunta of Guntur town, the accused assaulted by stalking Nallapu Ramya (hereinafter referred to, as 'the deceased') viz. interacted/contacted her repeatedly despite her clear 3 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 indication of disinterest and thereby committed an offence punishable under Section 354D IPC; that on the same date, time and place and during the course of same transaction, the accused committed murder by intentionally causing death of the deceased by means of stabbing her on her stomach, chest and back indiscriminately with a knife and thereby committed an offence punishable under Section 302 IPC; that on the same date, time and place and during the course of same transaction, the accused, not being a member of Scheduled Caste or Scheduled Tribe, committed the abovesaid offence under Section 354D IPC knowing that the deceased is a member of Scheduled Caste-Mala and thereby committed an offence punishable under Section 3 (2) (va) of the Act, 2015; and lastly, that on the same date, time and place and during the course of same transaction, the accused committed the abovesaid offence punishable under Section 302 IPC knowing that the deceased is a Scheduled Caste-Mala community and thereby committed 4 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 an offence punishable under Section 3 (2) (v) of the Act, 2015.
4. Case of the prosecution, in brief, is as follows:
(a) P.W.1 is father of the deceased. P.W.2 is mother of the deceased. P.W.3 is sister of the deceased.
According to P.W.3, she knew the accused as she had seen him in instagram app shown to her by the deceased. P.W.3 and the deceased were residing in the house of their grandmother L.W.4-N.Pushpa Leela and were studying in St.Mary's Group of Institutions. The deceased was studying III year B.Tech. in St. Mary's Engineering College. Their parents were residing in Chilumuru village of Kolluru mandal by doing cultivation. P.Ws.1 and 2 used to visit them once in two or three days. On 14.08.2021, during night, the deceased showed profile photo of the accused in instagram app and informed P.W.3 that the accused, being resident of Mutluru village and Vaddera community person, was troubling her and was insisting her to love him and he was also threatening that if she does not love him, he would kill her. On that, P.W.3 5 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 informed the deceased that they would inform the same to their father on the next day and the accused could not do anything, and asked the deceased to keep his number in block list. On 15.8.2021 at about 9.40 AM, the deceased went out to bring tiffin. P.W.4, who was working as Cashier in Sri Lakshmi Sai Tea Corner Shop, Paramayakunta, Guntur, heard a galata at a distance of 10 to 15 meters from the tea shop, on 15.8.2021 between 9.30 AM and 10.00 AM. He went there and found the accused stabbing the deceased with a knife on her throat, breast and stomach, and on that, the deceased fell down on ground, and the accused absconded on his motor cycle kept on the other side of the road. Thereafter, on information, P.W.3 went there and got boarded the deceased in auto with the help of persons gathered there and shifted her to GGH, Guntur, where the Doctor declared her as brought dead. P.W.3 informed the same to her father P.W.1.
(b) On 15.8.2021 at about 5.00 PM, on receipt of Ex.P1-report from P.W.1, P.W.27-Inspector of Police, Old 6 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 Guntur police station registered a case in crime No.446 of 2021 for the offences punishable under Section 302 IPC and 3 (2) (va) of the Act, 2015 and submitted Ex.P23- original FIR to the Magistrate concerned and copies to all concerned.
(c) On 15.08.2021, P.W.28-Deputy Superintendent of Police, Dhisa women police station, Guntur urban took up investigation as per the proceedings of the Superintendent of Police, Guntur Urban under Ex.P12. He arrested the accused on the same day at 8.30 PM at the fields of Mulakaluru village of Narasaraopet mandal. While arresting the accused, the accused attempted to take away his life, by slashing his throat and also left hand with knife available with him. P.W.28 seized M.O.8-knife from the accused. Thereafter, P.W.28 gave instructions to P.W.26 to give report in Narasaraopet rural police station against the accused, pursuant to which a case in crime No.270 of 2021 was registered under Section 309 IPC. In pursuance of the confessional statement of the accused, P.W.28 seized M.O.6-mobile phone of the deceased, M.O.8-knife, 7 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 M.O.9-Pulsar bike of the accused and M.Os.10 and 11- blood stained clothes of the accused, under Ex.P5 in the presence of P.W.17 and another.
(d) On 16.8.2021 at about 6.00 AM, P.W.28 visited scene of offence situated at road margin of Kakani road, Opposite to Srinivasa Vilas Hotel, Paramayakunta, prepared Ex.P24-rough sketch of the scene of offence and seized material objects viz. M.O.15-one pair of hawai chappal of the deceased; M.O.13-blood stained earth and M.O.14-control earth, under Ex.P6 in the presence of P.W.17 and another. He also collected CC TV footage of 6 th number camera C.D. from Srinivasa Vilas Hotel in the presence of mediators under Ex.P6, vide M.O.19-C.D. of CC TV footage. He also examined P.Ws.1 to 3 and L.W.4- N.Pushpaleela and recorded their statements under Section 161 CrPC. On 16.8.2021, he conducted inquest over the dead body of the deceased between 7.30 AM and 9.30 AM in the presence of inquestdars under Ex.P7. On 17.8.2021, P.W.28 visited the scene of offence and seized M.O.17-one hard disk under Ex.P8 in the presence of 8 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 mediaators P.W.7 and another. On the same day, P.W.28 examined P.Ws.6 to 9 and recorded their statements under Section 161 CrPC.
(e) On 16.08.2021 at 9.30 AM, P.W.22-Assistant Professor, Department of Forensic Medicine, Guntur Medical College, Guntur conducted autopsy over the dead body of the deceased and issued Ex.P19-post mortem examination report. According to the Doctor, cause of death of the deceased is due to penetrating injury of the arch of aorta (a main artery from the heart) and the time of death was approximately 24 hours prior to the post mortem examination. After receipt of relevant documents and completion of investigation, P.W.28 filed the charge sheet.
5. During trial, P.Ws.1 to 28 were examined and Exs.P1 to P29, besides case properties M.Os.1 to 19 were got marked, on behalf of the prosecution. After completion of prosecution side evidence, the accused was examined under Section 313 CrPC to explain the incriminating circumstances appearing against him in the evidence of 9 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 prosecution witnesses. Plea of accused is one of denial. On behalf of defence, no oral or documentary evidence has been adduced. The learned Sessions Judge, after appreciating of the evidence on record, convicted and sentenced the accused as stated supra. Challenging the same, the present Criminal Appeal is preferred by the accused.
6. Since one of the sentences passed by the learned Sessions Judge is death sentence, the learned Sessions Judge submitted the proceedings to this Court in accordance with Section 366 CrPC, for confirmation. Therefore, Referred Trial No.1 of 2022 is taken on file.
7. Learned counsel appearing on behalf of the appellant contended that there is inordinate delay in lodging report by P.W.1 in police station with regard to the alleged incident. According to him, the alleged incident is said to have taken place between 9.30 AM and 10.00 AM and the FIR was lodged by P.W.1 at about 5.00 PM on the same day i.e. there is inordinate delay of 7 hours in 10 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 lodging the report and the same would be fatal to the prosecution case.
Learned counsel for the appellant further submitted that P.Ws.1 to 3 are not eye-witnesses to the incident, and after the incident, P.W.3 went to the scene of offence and took the deceased along with other passers-by to hospital, and during that time, the deceased was not conscious and was not able to say anything. If really the deceased referred name of the accused, nothing would have stopped P.W.1 to take name of the accused at the time of lodging the First Information Report. He submits that there are number of discrepancies and contradictions in the evidence of material prosecution witnesses, and basing on the said evidence, it is not safe to convict the accused of the aforesaid offences. The learned counsel submitted that the learned Sessions Judge has not considered the evidence on record in proper perspective and erred in convicting and sentencing the accused and hence, the accused is entitled to benefit of doubt. Hence, he prays to 11 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 set aside the convictions and sentences recorded by the learned Sessions Judge.
He further submitted that the present case would not fall within the purview of rarest of rare cases for the reason that both the accused and the deceased were known to each other through Instagram app, and the act, which is allegedly done in a fit of rage, would not come within the purview of rarest of rare cases. The learned counsel further submitted that as on the date of the incident, the accused was aged about 19 years and there was no criminal history of the accused at the earlier point of time.
8. On the other hand, learned Additional Public Prosecutor appearing for the State contended that the evidence of P.Ws.4 and 14, who are eye-witnesses to the incident, is consistent that it is the accused who caused the death of the deceased, and their evidence has not been shattered in their cross-examination by the defence. It is his submission that apart from evidence of P.Ws.4 and 14, there is evidence of P.Ws.6, 8, 12 and 13, who are circumstantial witnesses, who saw the accused with a 12 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 knife absconding from the scene of offence on a motor bike. According to him, the aforesaid evidence is sufficient to come to the conclusion that it is the accused who caused death of the deceased.
The learned Additional Public Prosecutor further submitted that apart from the same, police seized hard disk from Srinivasa Vilas Hotel and conducted investigation in a fair way by obtaining certificate under Section 65B of the Indian Evidence Act, 1872, and the C.C.TV footage clearly shows that it is the accused who caused death of the deceased, and the same would further strengthen the case of prosecution. According to him, in a case of this nature, some minor discrepancies are bound to occur and as long as the same would not go to the root of the case, much significance cannot be given to them. In the case on hand, the inconsistencies or contradictions, if any, would not go to the root of the case and the evidence of material prosecution witnesses is consistent and trustworthy on material aspects. He submits that the act done by the accused is a brutal act in a broad day light 13 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 and it falls within the purview of rarest of rare cases. According to him, the Judgment of the learned Sessions Judge is well-reasoned and calls for no interference by this Court.
9. Now, the point that arises for determination is whether the prosecution is able to bring home the guilt of the appellant/accused for the offences with which he was convicted and sentenced and whether the conviction and sentence recorded by the learned Sessions Judge are liable to be set aside or modified?
10. This Court perused the record. P.Ws.1 to 3 are closely related to the deceased, though they are not eye- witnesses to the incident. P.W.1 is father of the deceased. P.W.2 is mother of the deceased. P.W.3 is sister of the deceased. On information from P.W.10, P.W.3 rushed to the scene of offence and found the deceased lying in a pool of blood and she was a little conscious and informed P.W.3 with eye and lip movement and told her 'Sasi krishna, Sasi krishna'. On the earlier day i.e. 14.8.2021, the deceased showed P.W.3, profile photo of the accused and informed 14 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 that the accused being resident of Mutluru village and Vaddera community person, was troubling her and insisting to live him and he was also threatening that if she does not love him, he would kill her.
11. P.Ws.4 and 14 are eye-witnesses to the incident. P.W.4 was working as Cashier in Sri Lakshmi Sai Tea Corner shop, Paramayakunta, Guntur. He deposed that he knew the deceased as she used to come to the shop; that on the fateful day i.e. 15.8.2021, the shop was opened by 5.00 AM, and in between 9.30 AM and 10.00 AM, he heard a galata at a distance of 10 to 15 meters from the shop; on that, he went there and found that the accused was stabbing the deceased with a knife; that the accused stabbed on her throat, breast and stomach, and the deceased fell on ground; that the accused absconded on his motor cycle kept on the other side of the road. It is his further evidence that within 10 minutes, P.W.3 came there and got boarded the deceased in the auto with the help of gathered persons at the scene 15 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 and then shifted to GGH, Guntur. P.W.4 identified the accused in the open Court.
12. P.W.14 was doing vegetable business at the margin of Sri Srinivasa Vilas Hotel, Paramayakunta, Kakani road, Guntur. It is his evidence that on 15.8.2021 at about 9.45 AM, while he was present in his vegetable shop, one boy kept his two wheeler by the side of push cart of one Anji, and the said boy and one girl were quarrelling; that the boy was wearing black T shirt and blue jeans pant; that they thought that they were wife and husband; that they went towards Sri Srinivas Vilas Hotel and then the said boy started stabbing the girl with a knife; that the said girl tried to guard with her hands, and due to the injuries, she fell down on ground; that the said boy again stabbed on her neck and breast, and then he crossed the road, picked up his motor cycle and absconded. The witness identified the accused as the said boy in the Court. It is his further evidence that after information, her sister came there and shifted the deceased to GGH, Guntur with the help of people gathered 16 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 there, and later she came to know about the details of the deceased. He also deposed that the learned Magistrate recorded Ex.P2-his statement.
13. P.Ws.7, 8, 9, 12 and 13 are circumstantial witnesses, who saw the accused going away from the scene of offence with bloodstained knife on a motor cycle, after the incident.
14. P.W.6 is the owner of Srinivasa Vilas Hotel at Paramayakunta, Kakani Road, Guntur. He deposed that altogether, 12 CC cameras are installed to his hotel, and 6th number camera installed at paint shop belonging to him situated by the side of the hotel, and that the said camera recorded the incident of murder of the deceased on 15.8.2021, and on 16.8.2021, police watched the CC footage of 6th number camera. His evidence to the said effect remained unchallenged. M.O.7 is the Hard disk containing CC storage of videograph and M.O.19 is the CD of CC TV footage of the said 6th number camera. M.O.7, which was seized from P.W.6, was sent to the Regional Forensic Science Laboratory, Mangalagiri for analysis and 17 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 report by P.W.28. According to Ex.P25-RFSL report, dated 20.08.2021, M.O.7 was in working condition and one video file with regard to date 15.8.2021 (channel 6) was found which depicts an incident pertaining to this case extracted CCTV video file having file name stated in the said report dated 15.08.2021 with duration 135.93 minutes between 9:22:52 and 11:38:48 and furnished in a DVD marked as annexed. The analyst gave finding that a male person and female person entered into the field of view at 9:52:46 hrs and the male person attacked female person during 9:53:04 hrs to 9.53:20 hrs on 15.8.2021 and the said CC TV video recording frame by frame using Amped Five Software and found to be continuous without editing/morphing. The defence did not dispute Ex.P25- report. Therefore, from the aforesaid evidence, it can be held that M.O.7 hard disk was intact and without any morphing.
15. On the aspect of production of a Certificate under Section 65B of the Indian Evidence Act, 1872, the learned counsel appearing for defacto complainant relied 18 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 on a decision in Arjun Panditrao Khotkar v. Kailash Kushan Rao Gorantyal and others1, wherein it is held thus:
(paragraph 72) "The reference is thus answered by stating that:
(a) Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno (supra), being per incuriam, does not lay down the law correctly.
Also, the judgment in SLP (Crl.) No.9431 of 211 reported in Shafhi Mohammad (supra) and the judgment dated 03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law correctly and are therefore overruled.
(b) The clarification referred to above is that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the 'computer' happens to be a part of a "computer system" or "computer network" and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65 B (1), together with the requisite certificate under Section 65B (4). The last sentence in Anvar P.V. 1 Judgment dated 14.7.2020 in Civil Appeal Nos. 20825-20826 of 2017 19 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 (supra) which reads as "...if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act..." is thus clarified; it is to be read without the words "under Section 62 of the Evidence Act, ...". With this clarification, the law stated in paragraph 24 of Anwar P.V. (supra) does not need to be revisited."
16. From the ratio laid down in the aforesaid decision, it is clear that the Certificate under Section 65B (4) of the Indian Evidence Act, 1872 is unnecessary if the original document itself is produced, and the same can be done by the owner of the computer by stepping into witness box and proving that the concerned device on which the original information is first stored, is owned and operated by him. In the case on hand, P.W.6 is the owner of Srinivasa Vilas Hotel at Paramayakunta, Kakani Road, Guntur and from his evidence, it is clear that altogether, 12 CC cameras were installed to his hotel, and 6th number camera was installed at paint shop belonging to him situated by the side of the hotel, and that the said camera recorded the incident of murder of the deceased on 15.8.2021, and on 16.8.2021, police watched the CC footage of 6th number camera. M.O.7 is the Hard disk 20 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 containing CC storage of videograph and M.O.19 is the CD of CC TV footage of the said 6th number camera. During the course of investigation, investigating officer P.W.28 seized M.Os.7 and 19. M.O.7 was sent to the Regional Forensic Science Laboratory, Mangalagiri and according to Ex.P25-RFSL report, dated 20.08.2021, M.O.7 was in working condition and one video file with regard to date 15.8.2021 (channel 6) was found which depicts an incident pertaining to this case extracted CCTV video file having file name stated in the said report dated 15.08.2021 with duration 135.93 minutes between 9:22:52 and 11:38:48 and furnished in a DVD marked as annexed. It is also evident from the evidence of the analyst that a male person and female person entered into the field of view at 9:52:46 hrs and the male person attacked female person during 9:53:04 hrs to 9.53:20 hrs on 15.8.2021 and the said CC TV video recording frame by frame using Amped Five Software and found to be continuous without editing/morphing. Therefore, from the evidence of P.Ws.6 and 28 and the recitals in Ex.P25- 21 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 RFSL report and M.Os.7 and 19 and Ex.P16-Certificate under Section 65B of the Indian Evidence Act, 1872, it can be safely concluded that the electronic evidence in M.Os.7 and 19 can be used to corroborate the evidence of material prosecution witnesses.
17. P.Ws.15 and 16 are friends of the accused. Their statements under Section 164 CrPC were recorded by the Magistrate under Exs.P3 and P4. According to their evidence, P.W.16 was doing fish selling business. On 05.08.2021, P.W.16-Manikanta requested his friend P.W.15 to order a knife for cutting fish through online, and he received the knife from P.W.15 on 09.08.2021 and kept the same in a tray. One day, the accused came to house of P.W.16 and requested him to give a knife stating that he had some work with it. But, P.W.16 refused to give the same. On 14.8.2021, at about 7.00 PM, when P.Ws.15, 16 and the accused were in the house of P.W.16, the accused snatched the knife from the hands of P.W.15 and left the stating that he had a small work. On 15.08.2021, P.W.16 came to know that the accused murdered the deceased 22 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 and realized that the accused took away the knife M.O.8 for murdering the deceased.
18. P.W.17 is one of the panch witnesses for conducting inquest over the dead body of the deceased on 16.8.2021 under Ex.P7-inquest report. He is also one of the mediators who were present when police observed the scene of offence and prepared Ex.P6-scene observation report; for seizure of M.Os.1 to 5, M.Os.6, 8 to 11, M.Os.12 to 15, M.O.7-CC TV footage collected from owner of Sri Srinivasa Vilas Hotel under Ex.P8; M.O.16-mobile phone under Ex.P9.
19. P.W.21 is the Nodal Officer, Jio Info Comm Limited, A.P. Circle, Vijayawada who furnished Exs.P18 and P17-call data to the Additional Superintendent of Police, Guntur with regard to Jio mobile numbers 6304520984 and 9392363702 and Ex.P16-Certificate under Section 65B of the Indian Evidence Act, 1872.
20. P.W.22-Assistant Professor, Department of Forensic Medicine, Guntur Medical College, Guntur conducted postmortem examination over the dead body of 23 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 the deceased on 16.8.2021 and observed the following ante-mortem injuries.
"8 stab injuries present over chest and abdomen; (1) Redish coloured stab injury with clean cut margins, measuring about 3 x 2 cm x 2.5 cm deep, present obliquely over 2 cm above and left side to the sternal notch, injury penetrated into deeper tissue and muscles and finally punctured the left side internal jugular vein;
(2) Reddish coloured stab injury clean cut margins, measuring about 3 x 2 cm x 4.5 cm deep, present over upper part of midline of the chest at manubrium sternum area, obliquely 5.5 cm below the injury No.1 with penetrating into the manubrium sternum, then penetrate into arch of the aorta up to 2 cm depth, so that the heart is collapsed condition and chambers of the heart is empty of blood;
(3) Reddish coloured stab injury with clean cut margins, measuring 3 x 1 cm x 2 cm deep present over right side costal margin of the chest, 10 cm obliquely away from the umbilicus, penetrated and fractured 11 th rib at its middle 3rd, the surrounding soft tissue is contused.
(4) Reddish coloured stab injury with clean cut margins, measuring about 4 x 2 cm x 2 cm subcutaneous deep, present at right side loin, at the level of umbilicus, 8 cms below the injury No.3 and 10 cm right lateral part of the umbilicus; this penetrates into subcutaneous fat of the abdomen;
(5) Reddish coloured stab injury with clean cut margins, measuring about 3 x 1 cm x 2 cm deep subcutaneous deep present at just obliquely, left side lateral and 4 cm above the umbilicus.
(6) Reddish coloured stab injury with clean cut margins measuring about 3 x 1 cm x 2 cm deep subcutaneous deep present 6 cm below the umbilicus, just right side of the midline.24
KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 (7) Reddish coloured stab injury with clean cut margins, measuring about 5 x 3 cm x 2 cm deep subcutaneous deep, present over lateral aspect of left shoulder at upper end of the left arm;
(8) Reddish coloured stab injury with clean cut margins, measuring about 2 x 1 cm x 1 cm deep subcutaneous deep, present 5 cm below the injury No.7."
21. A perusal of the evidence of P.Ws.4 and 14 would go to show that their evidence is consistent with regard to the attack by the accused on the deceased. Nothing has been elicited in their evidence to discredit their testimony. Their presence is natural and probable at the scene of offence at the relevant point of time of the incident. They have no grouse or enmity against the accused to implicate him falsely in a case of this nature. Therefore, their evidence can be placed in the category of 'wholly reliable'. Their evidence is corroborated by the electronic evidence viz. M.Os.7 and 19-Hard disk and CD of CC TV footage recorded in the CC cameras installed in Srinivasa Vilas Hotel at Paramayakunta, Kakani Road, Guntur of P.W.6, which is substantiated from the evidence of P.Ws.6 and 28 and the recitals in Ex.P25-RFSL report 25 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 and M.Os.7 and 19 and Ex.P16-Certificate under Section 65B of the Indian Evidence Act, 1872. It is also quite evident from the evidence of material prosecution witnesses that the accused had taken the extreme step of causing death of the deceased for the reason that the deceased and the accused, became friends on Instagram app, and when the accused proposed the deceased, she was avoiding the accused and his calls and thereafter the deceased blocked the mobile number of the accused. The evidence of P.Ws.4 and 14, coupled with evidence of circumstantial witnesses P.Ws.6, 7, 8, 9, 12 and 13, coupled with M.Os.7 and 19 and Ex.P25, it can safely be inferred that the accused is the assailant of the deceased and caused gruesome murder of the deceased in a broad day light and in a busy market. Basing on the evidence of record, there is no conclusion that can be inferred by this Court except to say that it is the accused who caused death of the deceased. Further, there is also ample evidence on record to establish that the accused interacted/contacted the deceased repeatedly despite her 26 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 clear indication of disinterest, attracting the offence punishable under Section 354D IPC. There is also no dispute that the deceased belongs to Scheduled Caste community and the accused committed the aforesaid offences knowing fully well that the deceased belongs to Scheduled Caste community. The learned Sessions Judge, upon appreciation of the evidence on record, rightly convicted the appellant/ accused and there are no grounds to interfere with the conviction recorded by the learned Sessions Judge.
SENTENCE:
22. Insofar as sentence is concerned, the learned Sessions Judge imposed death penalty i.e. hanging by the neck till he is dead, for the offence punishable under Section 302 IPC. It is settled law that unless a case falls under rarest of rare cases, the capital punishment cannot be imposed. On this aspect it is pertinent to refer to a decision of the Constitution Bench of the Hon'ble Apex 27 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 Court in Bachan Singh v. State of Punjab2, wherein it is held thus: (paragraphs 206 and 209).
"206. Dr Chitale has suggested these mitigating factors:
"Mitigating circumstances.--In the exercise of its discretion in the above cases, the court shall take into account the following circumstances:
(1) That the offence was committed under the influence of extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above.
(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."
209. There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in 2 AIR 1980 SC 898 28 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 an imperfect and undulating society." Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and Figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequency
-- a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guide-lines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3) viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. 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."
23. Learned counsel appearing for the accused relied upon a decision in Machhi Singh & others v. State of Punjab3, wherein it is held thus: (paragraphs 32 to 38) "32. The reasons why the community as a whole does not endorse the humanistic approach reflected in "death sentence-in-no-case" doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of "reverence for life" principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realized that every member of the community is 3 (1983) 3 SCC 470 29 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent for those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by "killing" a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self-preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so "in rarest of rare cases" when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance:
I. Manner of commission of murder
33. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance,
(i) when the house of the victim is set aflame with the end in view to roast him alive in the house.
(ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.
(iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner. II. Motive for commission of murder
34. When the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold-blooded murder is 30 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust, or (c) a murder is committed in the course for betrayal of the motherland. III. Anti-social or socially abhorrent nature of the crime
35. (a) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance.
36. When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
V. Personality of victim of murder
37. When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.
38. In this background the guidelines indicated in Bachan Singh case [(1980) 2 SCC 684 : 1980 SCC (Cri) 580 : AIR 1980 SC 898 : 1980 Cri LJ 636] will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge 31 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 from Bachan Singh case [(1980) 2 SCC 684 : 1980 SCC (Cri) 580 : AIR 1980 SC 898 : 1980 Cri LJ 636] :
"(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."
24. It is also pertinent to refer to a decision in Manoj and others v. State of Madhya Pradesh4. (paragraphs 214, 215, 216, 217 and 218).
"214. Capital punishment is prescribed in numerous IPC offences, including murder, kidnapping for ransom, rape and injury causing death or leaving a woman in a vegetative state, rape or gang rape of a child below 12 years' old, dacoity with murder, among other offences. In Bachan Singh v. State of Punjab [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] (hereafter "Bachan Singh"), this Court had upheld the imposition of death penalty as an alternate punishment under Section 302IPC on the strength of the 35th Report 4 (2023) 2 SCC 353 32 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 of the Law Commission of India (1967), the judgment in Jagmohan Singh v. State of U.P. [Jagmohan Singh v.
State of U.P., (1973) 1 SCC 20 : 1973 SCC (Cri) 169] (which had also noted that the 35th Report advocated for retention) and in several subsequent cases decided by this Court, in which the death penalty was recognised to be a deterrent. It laid emphasis on the then recently added Sections 253(2) and 354(3)CrPC which provide for bifurcated pre-sentence hearing and sentencing procedure on conviction of capital offences, to conclude that this form of punishment continued to have legislative backing and thereby, represented the will of the people.
215. It is undeniable that there have been shifts in how punishment in capital offences are dealt with. This is apparent when developments are looked at holistically, or at a macrolevel : the amendments to the CrPC by Parliament, the 35th and 262nd Law Commission Reports which stand over 30 years apart, and the precedents of this Court, across the decades. Initially, the law imposed a requirement of written reasons for not imposing death penalty, which was removed in 1955. In 1973, through further amendment to the CrPC and insertion of Section 354(3) -- life imprisonment became the norm and imposition of death penalty required "special reasons"; and through Section 253(2) -- sentencing required separate consideration from the question of conviction. In both phases i.e. post-1955 and post-1973, capital punishment was upheld to be constitutional by five-Judge Benches of this Court in Jagmohan Singh [Jagmohan Singh v. State of U.P., (1973) 1 SCC 20 : 1973 SCC (Cri) 169] and Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 :
1980 SCC (Cri) 580] , respectively.
216. The 262nd Law Commission Report on Death Penalty (2015) (hereafter "the 262nd Report"), is a result of this Court's references in primarily two cases. Firstly, in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra [Santosh Kumar Satishbhushan Bariyar v.
State of Maharashtra, (2009) 6 SCC 498, para 112 :
(2009) 2 SCC (Cri) 1150] (hereafter "Santosh Bariyar") 33 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 where, after taking note of the UN General Assembly Resolution 62/149 [ Adopted on 18-12-2007.] it was pointed out that credible research was required to shape an informed discussion and debate, on the contentious issue of death sentence. Secondly, the judgment in Shankar Kisanrao Khade v. State of Maharashtra [Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546, paras 148-149 : (2013) 3 SCC (Cri) 402] tasked the Law Commission to resolve the issue of whether death penalty is a deterrent punishment, is retributive justice, or serves an incapacitative goal; and to study the difference in approach adopted by the judiciary (rarest of rare) and the executive (what was termed as unknown) while granting commutation. In attempting to fulfil this mandate, the Commission discerned an urgent need for re-examination of its own earlier recommendations on the death penalty (in its 35th Report, 1967), given the drastic change in social, economic, and cultural contexts of the country since the 35th Report, and arbitrariness which has remained a major concern in the adjudication of death penalty cases since Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] laid down the foundational principle of "rarest of rare".
217. Reflective of changed circumstances and evolving discourse, the Report marks a shift in the approach towards the death penalty in India, going so far as to recommend abolition in all offences, except those relating to terrorism. A large part of the Report focusses on courts' discretion and judicial reasoning when it comes to sentencing. It concludes that death penalty sentencing in India has been based on an arbitrary application of the Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] principle, and has become Judge-centric, based on the personal predilection of Judges -- a concern which was alluded to even by this Court in Swamy Shraddananda (2) v. State of Karnataka [Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767 : (2009) 3 SCC (Cri) 113] and analysed extensively again in Santosh Bariyar [Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498, para 112 : (2009) 2 SCC (Cri) 1150] , followed by Sangeet v. State of 34 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 Haryana [Sangeet v. State of Haryana, (2013) 2 SCC 452 : (2013) 2 SCC (Cri) 611] , Mohd. Farooq Abdul Gafur v. State of Maharashtra [Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641 : (2011) 3 SCC (Cri) 867] , and more recently in Chhannu Lal Verma v. State of Chhattisgarh [Chhannu Lal Verma v. State of Chhattisgarh, (2019) 12 SCC 438 : (2019) 4 SCC (Cri) 402] (hereafter "Chhannu Lal Verma"). The death penalty framework and how to apply it for "principled sentencing"
218. This Court in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] while upholding the constitutionality of capital punishment, categorically ruled that the new CrPC of 1973 marked a shift as it bifurcated the criminal trial to include a pre- sentence hearing [under Section 235(2)], and further mandated the sentencing court to outline the "special reasons" [under Section 354(3)] or absence of them, by considering circumstances both of the crime and the criminal. The Court also noted that while broad guidelines or indicators may be given, they cannot be put into water-tight compartments that curb discretion of any Judge to do justice in a given individual case :
(SCC pp. 739 & 748, paras 163 & 201) "163. ... Now, Section 235(2) provides for a bifurcated trial and specifically gives the accused person a right of pre-sentence hearing, at which stage, he can bring on record material or evidence, which may not be strictly relevant to or connected with the particular crime under inquiry, but nevertheless, have, consistently with the policy underlined in Section 354(3), a bearing on the choice of sentence. The present legislative policy discernible from Section 235(2) read with Section 354(3) is that in fixing the degree of punishment or making the choice of sentence for various offences, including one under Section 302 of the Penal Code, the court should not confine its consideration "principally" or merely to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal.
*** 35 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022
201. ... As we read Sections 354(3) and 235(2) and other related provisions of the 1973 Code, it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of "special reasons" in that context, the court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because "style is the man". In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate watertight compartments. In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that "special reasons" can legitimately be said to exist."
(emphasis in original)"
25. Relying upon the aforesaid decision, the learned counsel appearing for the accused submitted that the Court below has not even considered the possibility of reformation of the accused. He further submitted that the case on hand does not fall under rarest of rare cases to impose the capital punishment, and the mitigating circumstances submitted by the authorities would suffice that capital punishment is not warranted in the case on hand as both the accused and the deceased were known to 36 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 each other through Instagram app, and the act, which is allegedly done in a fit of rage, would not come within the purview of rarest of rare cases, and that as on the date of the incident, the accused was aged about 19 years and there was no criminal history of the accused at the earlier point of time.
26. On the other hand, the learned Additional Public Prosecutor appearing for the State submitted that the offence committed by the accused is gruesome and the same was committed in a broad day light, and cruelty is quite evident from the nature of the crime that has been committed by against the accused which warrants capital punishment. He further submits that those circumstances are enough to warrant nothing less than capital punishment, which is rightly imposed by the learned Sessions Judge, and there are no mitigating circumstances to take a lenient view in the case. According to him, it is in the cases like the present one, where the 'rarest of rare' doctrine needs to be invoked as a deterrent, for the reason that the accused committed gruesome murder of the 37 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 deceased causing so many injuries, which is quite evident from the medical evidence, in a broad day light.
27. Before hearing the Criminal Appeal, this Court directed (1) the District Collector, Guntur; (2) the Deputy Superintendent of Police, Guntur and (3) the Superintendent of Central Prison, Rajahmundry to submit a report not only with regard to the soundness of mind of the accused but also with regard to other parameters which are laid down in the decision in Manoj and others v.
State of Madhya Pradesh (4 supra). Accordingly, reports were submitted by the authorities concerned.
28. According to the report submitted by the District Probation Officer, Guntur, the accused was about 19 years of age by the date of the incident and he discontinued 10th class in Mutluru village, Guntur district.
A perusal of the reports submitted by the authorities would go to show that there is no past criminal history for the accused. His parents are illiterates. His father is not attending any work due to old age and his mother is selling buffalo milk and earning Rs.250/- per day, for their 38 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 livelihood. His elder brother, who studied B.Tech. (Civil Engg.), is working for a private firm in Hyderabad and earning Rs.25,000/- per month. His grandfather Sambaiah, aged 60 years, is depending on them.
29. On this aspect, it is pertinent to refer relevant paragraphs in the decision in Manoj and others v. State of Madhya Pradesh (4 supra). (paragraphs 234, 235, 236 and
237) "Theories of punishment
234. The 262nd Report speaks extensively to the penological justification of the death penalty. It finds that there is inconclusive evidence that this form of punishment has more of a deterrent effect, in comparison to life imprisonment. Dismissing the retributive theory of punishment on the ground that it suffers from lack of guidance on quantifying the punishment that would be appropriate to impose, it categorically states that:
"7.1.2. Capital punishment fails to achieve any constitutionally valid penological goals. 7.1.3. focusing on death penalty as the ultimate measure of justice to victims, the restorative and rehabilitative aspects of justice are lost sight of. Reliance on the death penalty diverts attention from other problems ailing the criminal justice system such as poor investigation, crime prevention and rights of victims of crime."
235. While the 262nd Report recommends abolition of the death penalty on this ground, in addition to sentencing having become Judge-centric or arbitrary, it has not prompted parliamentary intervention. Whether 39 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 the death penalty deserves a relook [as recommended by Kurian Joseph, J. (dissenting) in Chhannu Lal Verma [Chhannu Lal Verma v. State of Chhattisgarh, (2019) 12 SCC 438 : (2019) 4 SCC (Cri) 402] ], in light of the 262nd Law Commission Report, evolving jurisprudence, public discourse and international standards of human rights, is outside the purview of this Court's jurisdiction given the Constitution Bench decision in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 :
1980 SCC (Cri) 580] , and a question best left for the legislature to critically consider. In this backdrop, what this Court can do, is try and bolster the existing sentencing framework. This is possible only by giving true meaning to the existing guidelines (without falling into the trap of "categorising" crimes that automatically warrant death penalty). To do so, this Court finds it necessary to lay out certain practical guidelines (elaborated below) that can facilitate consideration of mitigating circumstances as recognised in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 :
1980 SCC (Cri) 580] , and consequently ensure uniform application of this framework.
236. The 262nd Report recognised the paradigm shift, in policy and discourse, towards a reformative and rehabilitative response to crime, and the development of jurisprudence such that adjudging a case to be "rarest of rare" was not sufficient, and special emphasis had to be placed in considering whether the offender is amenable to reform. Implicit in this shift is the understanding that the criminal is not a product of only their own decisions, but also a product of the State and society's failing, which is what entitles the accused to a chance of reformation. Thus, making life imprisonment the norm, and death penalty the exception. In Lehna v. State of Haryana [Lehna v. State of Haryana, (2002) 3 SCC 76 : 2002 SCC (Cri) 526] while deciding whether the facts in that case were appropriate for death penalty, traced this shift in approach : (SCC pp. 83-84, para 14) "14. ... Section 302IPC prescribes death or life imprisonment as the penalty for murder. While doing so, the Code instructs the court as to its application. The changes which the Code has undergone in the last three decades clearly indicate that Parliament is taking note of 40 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 contemporary criminological thought and movement. It is not difficult to discern that in the Code, there is a definite swing towards life imprisonment. Death sentence is ordinarily ruled out and can only be imposed for "special reasons", as provided in Section 354(3). There is another provision in the Code which also uses the significant expression "special reason". It is Section
361. Section 360 of the 1973 Code re-enacts, in substance, Section 562 of the Criminal Procedure Code, 1898 (in short "the old Code"). Section 361 which is a new provision in the Code makes it mandatory for the court to record "special reasons" for not applying the provisions of Section 360. Section 361 thus casts a duty upon the court to apply the provisions of Section 360 wherever it is possible to do so and to state "special reasons" if it does not do so. In the context of Section 360, the "special reasons" contemplated by Section 361 must be such as to compel the court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the legislature that reformation and rehabilitation of offenders and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country. Section 361 and Section 354(3) have both entered the statute book at the same time and they are part of the emerging picture of acceptance by the legislature of the new trends in criminology. It would not, therefore, be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors. Criminal justice deals with complex human problems and diverse human beings. A Judge has to balance the personality of the offender with the circumstances, situations and the reactions and choose the appropriate sentence to be imposed."
(emphasis supplied)"
41
KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 In view of the principle laid down in the aforesaid judgment, with an advent of goal of reformation in the recent past, the society must stride towards reformation and rehabilitation.
30. In Sundar @ Sundarrajan v. State by Inspector of Police,5 the Hon'ble Apex Court held thus: (paragraphs 63, 64 & 76).
"63. In Santa Singh v State of Punjab (1976) 4 SCC 190, a two judge Bench of this Court highlighted the requirement of having a separate sentencing hearing in view of Section 235(2) of the CrPC and noted that the stage of sentencing was as important a stage in the process of administering criminal justice as the adjudication of guilt.
64. The judgment of the majority in the Constitution Bench decision in Bachan Singh v State of Punjab (1980) 2 SCC 684 reiterated the importance of a sentencing hearing. The Court noted that:
"151. Section 354(3) of the CrPC, 1973, marks a significant shift in the legislative policy underlying the Code of 1898, as in force immediately before April 1, 1974, according to which both the alternative sentences of death or imprisonment for life provided for murder and for certain other capital offences under the Penal Code, were normal sentences. Now according to this changed legislative policy which is patent on the face of Section 354(3), the normal punishment for murder and six other capital offences under the Penal Code, is imprisonment for life (or imprisonment for a term of years) and death penalty is an exception. [...] 5 2023 LiveLaw (SC) 217 42 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022
152. In the context, we may also notice Section 235(2) of the Code of 1973, because it makes not only explicit, what according to the decision in Jagmohan's case was implicit in the scheme of the Code, but also bifurcates the trial by providing for two hearings, one at the preconviction stage and another at the pre-sentence stage.
[...]
163. [...] Now, Section 235(2) provides for a bifurcated trial and specifically gives the accused person a right of pre-sentence hearing, at which stage, he can bring on record material or evidence, which may not be strictly relevant to or connected with the particular crime under inquiry, but nevertheless, have, consistently with the policy underlined in Section 354(3) a bearing on the choice of sentence. The present legislative policy discernible from Section 235(2) read with Section 354(3) is that in fixing the degree of punishment or making the choice of sentence for various offences, including one under Section 302, Penal Code, the Court should not confine its consideration "principally" or merely to the circumstances connected with particular crime, but also give due consideration to the circumstances of the criminal."
(emphasis supplied).
...
76. In Rajendra Pralhadrao Wasnik v State of Maharashtra (2019) 12 SCC 460, a three judge bench of this Court took note of the line of cases of this Court which underline the importance of considering the probability of reform and rehabilitation of the convicted accused before sentencing him to death. The court observed:
"43. At this stage, we must hark back to Bachan Singh and differentiate between possibility, probability and impossibility of reform and rehabilitation. Bachan Singh requires us to consider the probability of reform and rehabilitation and not its possibility or its impossibility. [...]
45. The law laid down by various decisions of this Court clearly and unequivocally mandates that the probability (not possibility or improbability or 43 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 impossibility) that a convict can be reformed and rehabilitated in society must be seriously and earnestly considered by the courts before awarding the death sentence. This is one of the mandates of the "special reasons" requirement of Section 354(3) CrPC and ought not to be taken lightly since it involves snuffing out the life of a person. To effectuate this mandate, it is the obligation on the prosecution to prove to the court, through evidence, that the probability is that the convict cannot be reformed or rehabilitated. This can be achieved by bringing on record, inter alia, material about his conduct in jail, his conduct outside jail if he has been on bail for some time, medical evidence about his mental make-up, contact with his family and so on. Similarly, the convict can produce evidence on these issues as well.
46. If an inquiry of this nature is to be conducted, as is mandated by the decisions of this Court, it is quite obvious that the period between the date of conviction and the date of awarding sentence would be quite prolonged to enable the parties to gather and lead evidence which could assist the trial court in taking an informed decision on the sentence. But, there is no hurry in this regard, since in any case the convict will be in custody for a fairly long time serving out at least a life sentence.
47. Consideration of the reformation, rehabilitation and reintegration of the convict into society cannot be over emphasized. Until Bachan Singh, the emphasis given by the courts was primarily on the nature of the crime, its brutality and severity. Bachan Singh placed the sentencing process into perspective and introduced the necessity of considering the reformation or rehabilitation of the convict. Despite the view expressed by the Constitution Bench, there have been several instances, some of which have been pointed out in Bariyar and in Sangeet v. State of Haryana where there is a tendency to give primacy to the crime and consider the criminal in a somewhat secondary manner. As observed in Sangeet "In the sentencing process, both the crime and the criminal are equally 44 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 important." Therefore, we should not forget that the criminal, however ruthless he might be, is nevertheless a human being and is entitled to a life of dignity notwithstanding his crime. Therefore, it is for the prosecution and the courts to determine whether such a person, notwithstanding his crime, can be reformed and rehabilitated. To obtain and analyses this information is certainly not an easy task but must nevertheless be undertaken. The process of rehabilitation is also not a simple one since it involves social reintegration of the convict into society. Of course, notwithstanding any information made available and its analysis by experts coupled with the evidence on record, there could be instances where the social reintegration of the convict may not be possible. If that should happen, the option of a long duration of imprisonment is permissible.
(emphasis supplied)"
The Hon'ble Apex Court observed that the process of rehabilitation is also not a simple one since it involves social reintegration of the convict into society. Of course, notwithstanding any information made available and its analysis by experts coupled with the evidence on record, there could be instances where the social reintegration of the convict may not be possible. If that should happen, the option of a long duration of imprisonment is permissible.
31. In the case on hand, the accused discontinued X class. According to the prosecution case, the accused and the deceased were known to each other. According to 45 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 P.W.3, who is sister of the deceased, the deceased had shown the accused to her in instagram app, and informed on 14.08.2021, during night, that that the accused, being resident of Mutluru village and Vaddera community person, was troubling her and was insisting her to love him and he was also threatening that if she does not love him, he would kill her. When the accused was making advances for love and marriage, the deceased started avoiding him and blocked the mobile number of the accused and Instagram. In view of the said reason, the accused had taken the extreme step of eliminating the deceased in a fit of rage. The accused has no chequered history earlier and has no criminal back ground earlier to this case.
32. Criminal Justice System is more punitive than intended. The system is touted to be reformable and rehabilitative. The objectives of the Indian Criminal Justice System include penalizing, reforming and rehabilitating the offender. Reformation is its final goal, as 46 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 the system asserts to be more rehabilitative than retributive.
33. Everyone of us is born innocent. Some persons, because of their genetic composition, living experiences and other circumstances, could result in commission of the crimes. Social inequities and vulnerabilities of an accused would lead to the commission of crime. This Court is of the view that if the accused can be rehabilitated by providing counseling services to cater to the psychological needs, social, economic and personal challenges. This Court is of the view that there is a chance for the appellant to join the main stream of the society. When such is the view taken by the Hon'ble Apex Court in the recent past and having regard to mitigating circumstances stated supra, this Court is of the view that death sentence imposed on the accused is harsh in the facts and circumstances of the present case.
34. In view of the aforesaid reasons, the death sentence imposed on the accused is modified and the accused is sentenced to undergo rigorous imprisonment 47 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 for twenty years, without any reprieve or remission, and also to pay a fine of Rs.1,000/- in default to suffer rigorous imprisonment for a period of three months, for the offence punishable under Section 302 IPC. The sentences imposed by the learned Sessions Judge for the other offences are confirmed. All the substantive sentences of imprisonment shall run concurrently.
35. With the above modification in sentences, the Criminal Appeal is dismissed. Referred Trial is answered accordingly.
----------------------------------------- JUSTICE K.SURESH REDDY
------------------------------------------------ JUSTICE K.SREENIVASA REDDY 31.1.2025 DRK 48 KSRJ & SRKJ CRL.A.NO.190 of 2022 & RT 1 of 2022 THE HON'BLE SRI JUSTICE K.SURESH REDDY AND THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY COMMON JUDGMENT IN CRIMINAL APPEAL No.190 OF 2022 & R.T.NO.1 OF 2022 (per the Hon'ble Sri Justice K.Sreenivasa Reddy) 31.1.2025 DRK