Andhra HC (Pre-Telangana)
Yelchuri Manohar vs State Of A.P. on 7 October, 2005
Equivalent citations: 2005(2)ALD(CRI)751, 2005CRILJ4593
Author: J. Chelameswar
Bench: J. Chelameswar
JUDGMENT M. Venkateswara Reddy, J.
1. A bizarre incident that shook the State in general and the student community in particular occurred on 21 -6-2004 when the sun was blazing in the mid-sky, in a temple of education run after the name of the Goddess of Knowledge at Vijayawada 'Sharada P.G. College.' The scene of offence was a class room (Room No. 2 of the said college), where the final year M.C.A. students facing viva voce examination were waiting for their turn. A final year M.C.A. girl student by name Sri Lakshmi, who had to face viva voce test, when she was fully absorbed in reading, sitting on a Bench in the said class room, was brutally hacked to death from behind. This astoundingly gruesome act was committed in the very presence of the classmates of the victim. The appellant herein, one Y. Manohar (A.1), a classmate of the victim girl is the alleged perpetrator of the shocking crime. He faced trial as A. 1 in Sessions Case No. 209 of 2004, on the file of the Sessions Judge, Mahila Court, Vijayawada and was convicted for the offence under Section 302 of the Indian Penal Code and ordered to be hanged to death.
2. The learned Sessions Judge made a reference for confirmation under Section 366(1) of the Criminal Procedure Code as sentence of death was inflicted on A. 1 and hence R.T. No. 2 of 2005. The case in Criminal Appeal No. 1265 of 2005, is preferred by the said Manohar, A.I.
3. Apart from the charge under Section 302, I.P.C., A. 1 was tried by the learned Sessions Judge for the offence punishable under Section 4(ii) of the A.P. Prohibition of Ragging Act, 1997, Section 27(3) of the Arms Act, Section 120-B, I.P.C. and Section 201, I.P.C. He was acquitted of the offence punishable under Section 120-B, I.P.C. and convicted of the Offence under Section 4(ii) of the A.P. Prohibition of Ragging Act, Section 27(1) of the Arms Act (instead of Section 27(3) of Arms Act) and Section 201, I.P.C., but no punishment was awarded for the said offences as he was ordered to suffer the extreme penalty of capital punishment.
4. Along with A. 1 two more accused arrayed as A.2 and A.3 before the trial Court were tried, the former for the offences under Sections. 120-B and 201, I.P.C. and the later exclusively for the offence under Section 212, I.P.C. Both of them were acquitted of the said offences. A.I/appellant is thus, the sole prima donna of the entire case and he will be referred to hereinafter, for convenience, as accused.
5. A record number of 45 persons were examined as P.Ws. 1 to 45 and as many as 58 documents were marked on behalf of the prosecution. Sub-marking too was given. Three portions of the statement of P.W. 2, in her Section 161, Cr. P.C. statement were marked as Exs. D.I to D.3 as contradictions. Similarly one portion in the Section 161, Cr. P.C. statement of P.W. 8 and another in the Section 161, Cr. P.C. statement of P.W. 32 were marked as Exs. D.4 and D.5 respectively. The accused had not chosen to adduce any evidence on his behalf.
6. At the outset, we shall set out the case against the accused as emerging out of the testimony of the witnesses for proper understanding and appreciation.
7. The accused the deceased-girl Sri Lakshmi, P.Ws. 2, 5 to 13 and 15 were doing final year M.C.A. in the college, above referred to. The theory examinations were over and during vacation, the viva voce test was scheduled to be held on 21-6-2004, the ill-fated day. The viva voce test was to be conducted in the cellar of the college. The number of participants in the viva voce test was 27. The accused did not appear for the theory examination. Therefore, he was not called for viva voce test. Some examinees including the deceased were sitting in Room No. 2. There are four rows of benches in the room. The middle two rows were attached to one another. Sri Lakshmi was sitting in the 3rd row and to her right side, P.W. 5 Madhavi. P.W. 6 Shailaja was sitting in the 2nd row facing Sri Lakshmi, the deceased and P.W. 5. P.W. 7 was siting on the last bench by the side of the entrance of the room. P.W. 9 Rajasekhar was sitting on the last bench of the second row in Room No. 2. P.W. 10 was sitting on the 3rd Bench of the 2nd row.
8. At about 11.30 a.m., the accused went into room No. 2. He wished his colleagues saying 'hi.' Then he went behind Sri Lakshmi, stood there, picked up M.O. 1 knife from his waist and hacked on the head of the deceased-Sri Lakshmi shouting aloud. P.Ws. 5 to 7, 9 and 10 witnessed the ghastly incident. The heinous act sent shockwaves. The students in the class room ran helter-skelter. There was a lobby outside, in which some examinees were sitting and chatting and exchanging parleys with those students who already underwent viva voce examination. P.W. 2, P.W. 8, P.W. 11, P.Ws. 13 and 15 witnessed the accused coining out of Room No. 2 after completing the foul act. He was noticed by P.Ws. 2, 11 and 13 prior to entering into Room No. 2. The accused came out of the room after accomplishing the act threatening those who wanted to stop him, with the knife. Then he went towards a cinema hall, by name "Radha Cinema Hall." He wiped M.O. 1 knife to his pant and put it in his waist, which was noticed by P.W. 16, a watchman of a Chappal company, situated adjacent to the college. On coming to know of the incident P.W. 1 in charge principal of the college, presented Ex. P. 1 report written in his own hand to the police. P.W. 44, the then Section I. of Police, Section N. Puram, who arrived at the scene of offence after coming to know of the incident through his driver, received Ex. P.1 report, went to the police station, registered the report as a case in Crime No. 312 of 2004, for the offence under Section 302, I.P.C. and issued F.I.R. original F.I.R. Ex. P.38 was sent to the Court concerned. Thus, the law was set in motion with the presentation of Ex. P. 1. P.W. 45 investigated into the case. An observation report of the scene of offence Ex. P.30 was prepared in the presence of mediators, P.W. 33 and others. Lot of incriminating material was seized by him, the details of which are unnecessary at this stage. He also held inquest over the dead body under the cover of Ex. P.31, in the presence of P.W. 36 and others. Post-mortem was conducted on the dead body by P.W. 37, an Assistant Professor in the Department of Forensic Medicine, Sidhartha Medical College. He issued Ex. P. 32 post-mortem certificate opining that the cause of death was due to head injury.
9. P.W. 30 Ch. Peda Subbaiah, a resident of M.G. Nagar, Madras was a friend of the father of the accused for the last thirty years and the same is admitted by the accused in Section 313, Cr. P.C. examination. On 28-6-2004 at about 8.30 p.m., the accused went to his house. By that time P.W. 30 learnt about the incident through newspapers etc. When questioned as to why he committed the ghastly act, the accused confessed to have committed the offence. Then P.W. 30 took the accused, who expressed his readiness to surrender before the police, to the office of the Commissioner of Police, Chennai. The accused went to P.W. 34, D.I.G. and Joint Commissioner of Police, Chennai, who sent him to Egmore police station for surrender. Accordingly, the accused surrendered before P.W. 35, the then Inspector of Police, Egmore P.S. P.W. 35 informed the same to Vijayawada police. On 29-6-2004, P.W. 45 visited Egmore police station and took the accused to custody. After bringing the accused to Vijayawada, he interrogated the accused. The accused made a confession and it led to the discovery of M.O. 1 knife employed by him and blood-stained T shirt, which were hid in the roof of shed of A. 2. They were seized under the cover of Ex. P.33 Mahazar.
PREVIOUS CRIMINAL RECORD OF THE ACCUSED:
10. A rowdy sheet was opened in Ongole I-Town police station in the name of the accused. He was shown as accused in Crime No. 95 of 1994 under Section 324 read with Section 34, I.P.C. Crime No. 13 of 1995 under Section 302 read with Section 34, I.P.C., Crime No. 184 of 1997 under Section 107, Cr. P.C. of Ongole I town police station. In the first and second cases he was acquitted. The 3rd case is a bind over case, in which he was bound over. The rowdy sheet is marked as Ex. P.43 THE PRELUDE :
11. Before we proceed further, we shall make a brief note on the general conduct of the accused and the motive behind the crime, as also the preparation for the crime on the basis of the evidence available on record under the head, THE PRELUDE as a brief discussion thereon would shed some rays of light in an appropriate context during the course of this judgment. At the same time we are also aware that motive becomes irrelevant when there is direct and creditable evidence of the commission of offence.
PRIOR CONDUCT AND MOTIVE :
12. Number of incidents that demonstrate the prior conduct of the accused are brought out in evidence.
13. We have already noted that the final year M.C.A. class consisted of 29 students. , M.C.A. course is of three years duration. During the 1st year, the students went to a picnic at Adavainekkalam. One Venkata Narayana P.W. 12 was also a student of 1st year. He was beaten by the accused with a cricket bat alleging that the former did not respond to the smile thrown by the latter.
14. During the 2nd year of M.C.A. course, Sri Lakshmi and others gave a party to the freshers. The accused was not invited by them. He threatened the freshers and the organizers as well for that reason saying that he was not apprised of the proposed party and was not invited. The deceased-Sri Lakshmi responded saying that nobody's consent was necessary for such party.
15. During the 2nd year, one day, P.W. 2 and deceased Sri Lakshmi requested the accused to switch on a fan as the switchboard was located at a considerable height and as the same was not accessible to them. He switched on the fan, but complained that Sri Lakshmi did not request him in a polite manner saying "please" and she did not thank him even after he switched on the fan.
16. There was a pedestal fan in the class room. When deceased-Sri Lakshmi was sitting adjacent to the fan, the accused came in between and tried to dry his shirt that became wet on account of sweat.
17. On all the above occasions the accused was found drunk. He begun to call Sri Lakshmi on phone employing abusive language in a drunken state. He went to the residence of Sri Lakshmi at Balaji Nagar on one occasion when P.W. 2 was present there in a drunken state and asked for Vikram the brother of the victim girl. P.W. 2 made him to sit in the lobby. In the meantime Vikram went there. P.W. 2 introduced him to the accused. They went inside the house. The accused questioned Sri Lakshmi and P.W. 2 as to why they did not give him proper respect he deserved. He also declared that Sri Lakshmi was proud of herself on account of her brother Vikram and stated that he would talk to Vikram. Thereafter Vikram and the accused went outside. Vikram returned when P.W. 2 was still there. Vikram informed them that the accused demanded "sorry" from Sri Lakshmi as she was behaving arrogantly.
18. On the same day, again in the evening the accused telephoned to Sri Lakshmi. Sri Lakshmi expressed "sorry" stating that there were exams within ,two ., months and saying so she wept. The accused pitied her and stated that the issue may be treated as closed and requested her to write the exams well.
19. During 3rd year, the mother of Sri Lakshmi who was staying with her at Vijayawada passed away. One month there-after the accused again called Sri Lakshmi on telephone and started saying that she was arrogant and not giving respect to him and she should express sorry to him. He also threatened to harm Sri Lakshmi and kill her brother, Vikram.
20. On one day, in a drunken state, when P.W. 2 told him that he was unnecessarily calling Sri Lakshmi on telephone and the girl was in distress on account of the death of her mother, the accused stated that he had nothing to do with the death of the mother of Sri Lakshmi and she should say sorry to him.
21. Yet on another day, the accused along with his friend Bhanuprakash went to the house of Sri Lakshmi during night and made a galata in front of the house. Sri Lakshmi, her brother Vikram, in fact, gave a complaint to the college authorities. They also gave a complaint to the Commissioner of Police against the accused. Later, the father and maternal uncle of the accused accompanied by P.W. 25, a Head Constable (then), went to the college and the father of the accused in the presence of Sri Lakshmi and others requested the college authorities to afford him with an opportunity to correct the mistakes of his son and promised that the same would not be repeated in future.
22. The evidence of P.W. 43, the Inspector of Police, Anti-Gunda Squad, Vijayawada discloses that on 18-10-2003 in the evening hours, the deceased-Sri Lakshmi accompanied by his brother Vikram handed over Ex. P.3 complaint to him, in which she alleged as follows :
"*** Since last few weeks, I was being mentally harassed by my classmate named Y. Manohar, both at my house as well as on the telephone during odd times.
Normally, when he calls me, he uses unparliamentary language, and threaten to harm both me and my family members. He describes himself as a murderer according to him, he has done more than five murders. So all the students of my class are very much afraid of him and we don't involve in his affairs, even though he behaves unsociably with all of us. He has also given a deadline to me three days back that he would harm my near and dear. He asked me to count days till November 2nd 2003.
And as my exams are from November 24th, I am totally unable to concentrate on my studies, as I am mentally stressed that he will harm anyone of us. In this situation I request your timely help and look into the matter seriously. So that he never in my life interferes in my issues."
23. The accused used to threaten his classmates waving papers and stating that he is a rowdy sheeter and committed murders. He used to telephone to the deceased speaking to her and giving threats also.
PREPARATION FOR COMMISSION OF THE CRIME :
24. The accused is a resident of Ongole. His father Venkata Subbaiah is an Assistant Manager in State Bank of India. We have already noted that crimes were registered against him at Ongole I-town police station. P.W. 20 is a goldsmith at Ongole engaged in preparation of agricultural implements and instruments. About a year prior to 6-7-2005, the accused approached him for a butcher's knife and the latter agreed to prepare it for Rs. 200/-. The accused paid an advance of Rs. 50/- on that day. On the next day, he paid the balance of Rs. 150/- to P.W. 20 and took delivery of the knife M.O.I.
25. On 21-6-2004 the accused went to P.W. 18, who along with his father and brother is running a medical shop under name and style "Maruti Medical and Fancy Stores" at Radha Talkies in Vijayawada, at about 9.00 a.m. This witness knows the accused ever since the accused was studying IInd year M.C.A. The accused sat in the medical shop for a while and requested P.W. 18 to advance Rs. 100/-. This witness told him that he was not having any amount with him. Again, at 11.00 a.m. the accused went to that medical shop, sat for a while and renewed his request. Then P.W. 18 lent him Rs. 100/-.
26. P.W. 13 is a classmate of the accused. The viva voce test was to be commenced at 8.00 a.m. on 21-6-2004. But as the train, in which Prof. S. S. N. Purneswara Sarma P.W. 31 was to come, came late, therefore the test was commenced late. P.W. 13 went to the college at about 7.30 a.m. While entering into the college he saw P.W. 11-V.V. Manohar there (There are two students by name 'Manohar,' in the final year class, i.e. accused who is Y. Manohar and P. W. 11-V.V. Manohar). When they were talking to one another, the first accused came there. He was seen with a rose colour bandage cloth wrapped to his hands. When enquired, the accused told them that he wore it as he was suffering from pain. The accused asked P.W. 13 whether he was having Rs. 50/- with him and P.W. 13 lent that amount. Then the accused left.
27. P.W. 17 worked as a Waiter in Variety Bar, Vijayawada. At about 10.30 a.m. on 21-6-2004, the accused went to the said bar with a bag in his hand and ordered for a quarter of M.C. Whisky. P.W. 17 asked him whether he wanted any "touching." Then the accused ordered Salad. The accused consumed both and paid the bill of Rs. 80/-. This witness happens to remember the accused for the reason that the accused was the first customer on that day and failed to pay any tip. On the very same evening he identified the accused when he was shown in the T.V.
28. P.W. 19 is running a panshop opposite to Radha Talkies. He sells cool drinks, cigarettes, water pockets etc. and also running a public telephone booth under the physically handicapped quota. On 21-6-2004, the accused went to his telephone booth and made 3 or 4 phone Calls. In the evening he saw the photo of the accused in T.V. His booth is situated at a distance of about 400 yards from the Sarada P.G. College.
29. P.W. 8, another classmate of the accused says in his evidence that on 20-6-2004 the accused made a call to him and enquired whether viva voce examination would be held on 21-6-2005 as scheduled or would it get postponed, for which he replied that as per schedule the examination would be held. On 21-6-2004, the fateful day, the accused made him two calls, one at 9.00 a.m. and another at 9.30 a.m. and enquired whether the examination was commenced. He (P.W. 8) was the first person to be called for viva voce examination.
30. The accused entered the college campus with a bag M.O. 5 which was seized by the police later, at about 11.15 a.m. and after wishing friends, he went into cellar. He emerged from the cellar without bag and . entered into room No. 2 where he indulged in the commission of the gruesome act. Thus, there is consistent evidence that the accused was addicted to alcohol, that he has got prepared butcher's knife at Ongole and on the fateful day also he consumed alcohol, entered with a bag into the college premises and then into the cellar, where from he emerged without bag, entered room No. 2 and picking up M.O. 1 knife from his waist he hacked the deceased on the head. MEDICAL EVIDENCE :
31. The deceased was taken first to Vijetha Hospital by P.W, 2, her brother and others. P.W. 21 examined the deceased and declared that she was brought dead. His evidence does not throw any light on the case, at the most it reveals that the deceased died by the time she was brought to his hospital.
32. P.W. 37, the Assistant Professor in the Department of Forensic Science Medicine, Sidhartha Medical College, Vijayawada, conducted post-mortem examination on the body of the deceased-Sri Lakshmi on the date of commission of offence itself and issued Ex. P.32 post-mortem report. He commenced the post-mortem examination at 5.00 p.m. and concluded it at 6.00 a.m. He opined that the approximate time of death was about six hours prior to post-mortem examination. The time of death tallies with the evidence on record, which shows that the incident occurred at 11.30 a.m. He noted the following injuries on the person of the deceased :
1. "Oblique cut injury on right side of parieto occipital area of scalp 6x1 cm. bone deep.
2. Horizontal cut injury on the center of occipital area. 4x1 cm. Bone deep.
3. Vertical cut injury (below medial end of 2nd injury) 3x1 cm. bone deep in occipital area.
4. Horizontal cut injury (below end of 3rd injury) in occipital area.
5. Oblique cut injury 5 cm. behind right ear 4x1 cm. in size, bone deep.
6. Contusion of scalp over right temporo, occipital area 8x5 cm. in size.
7. Fissure fracture, 3 cm. in length or right parieto occipital junction.
8. Commuted fracture over 4x3 cm. area on right side of occipital area.
9. Sub dural hemorrhages in right occipital lobe."
33. Injuries No. 1 to 5 are external injuries and injuries No. 6 to 9 are internal injuries, which are result of the external injuries No. 1 to 5. The cause of death as per the doctor was due to head injury. He did not specifically note the depth of the injuries except stating that they are bone deep. The depth of the injuries depends on the thickness of the skin on the scalp, which differs from person to person. Injuries No. 1 and 5 are obliquely placed and injuries No. 2 and 4 are horizontal. P.W. 23 is a police photographer, who took the photographs of the scene of offence and also of the deceased at the mortuary. Exs. P7, P.8 and P. 10 clearly demonstrate the injuries sustained on the head.
34. Having culled out all the facts and present a holistic and complete picture of the case, we shall now take up appreciation of evidence with reference to the points urged by the learned Counsel for the accused.
35. P.Ws. 5, 6, 7, 9 and 10 are the examinees waiting for their turn in room No. 2 and they witnessed the occurrence. If their evidence is found to be credible and trustworthy, the other circumstantial evidence of P.Ws. 2, 11, 13 and others noticing the presence of the accused in the college campus and the evidence of P.Ws. 2, 8, 11, 12, 13 and 15 noticing the accused coming out of the room No. 2 with knife in fact fades into insignificance. We have already pointed out the places where the eye-witnesses were sitting in class room No. 2. After entering room No. 2, the accused went behind Sri Lakshmi, who was looking into the record or books bending forward, hacked her on her head with M.O. 1 shouting aloud. This is the unanimous core testimony that has emanated from their evidence. Shouting aloud while hacking had attracted their attention and they happened to see the brutal hacking. They got terrified and ran helter-skelter. All the witnesses are youngsters endowed with keen perception, memory and observation faculty. There is no cross-examination practically that could undo their evidence. Of course, there may be variation in fringes. Majority of them stated that the accused went behind and hacked Sri Lakshmi. Only one or two stated that the accused went aside Sri Lakshmi and hacked her. Slight variation of expression would not matter much. It is rarely a person can picturize what he saw in a communicable language to the point of perfection. The perceptions differ, expression differ, but so long as the core of their testimony is unanimous, their evidence cannot be thrown out. They are not enemies of the accused to implicate him in a murder case. They are not addicted in speaking falsehood. In fact, they had not entered the threshold of real and practical life. They are innocent. Some of them are careerists. They gave a graphic account of the incident. The manner in which the commission of this offence took place, the place at which the offence was committed, the time it was committed, when tailored with their evidence goes to give rise to an inescapable conclusion that it is the accused alone that hacked the deceased-Sri Lakshmi to death. It is also not the contention of the learned Counsel Sri C. Padmanabha Reddy that the evidence of the eye-witnesses lacks consensus as to the substratum of the case. His attack is confined to peripherals.
36. The learned Counsel for the accused urged the following points :
1) There is no proof placed before the trial Court to show that the final year M.C.A. students including Sri Lakshmi attended the viva voce test.
2) The evidence of alleged eye-witnesses is not in conformity with the circumstances found at the scene of offence in the sense that
a) there is no blood on the record held by the deceased.
b) medical evidence also does not run in conformity with the evidence of the eye-witnesses.
and
c) no blood-stains are found on the knife recovered.
3) There is no written proof of alleged surrender of the accused before the Chennai police and arrest by police.
4) Extra-judicial confession is highly artificial.
5) There is delay of six hours in F.I.R. reaching the Magistrate.
6) Conducting of lie detecting test is not proved.
37. We shall now meet the above points raised by the learned Counsel for the appellant.
1) PROOF OF ATTENDANCE OF STUDENTS FOR VIVA VOCE EXAMINATION :
P.Ws. 5, 7, 10 and 15 in their evidence deposed that the signatures of the candidates who attended viva voce examination would be obtained by the college authorities and the same would be available in the records maintained by the college. Taking advantage of this, the learned Counsel contends that the best available evidence is not produced. Nevertheless, there is overwhelming evidence with regard to the conducting of viva voce examination.
38. Ex. P.25, letter addressed by the Chairman, PG Board of Studies in Computer Science and Engineering to the Principal/ Director/Co-ordinator/In-charge of MCA programmes in the University College and Affiliated Colleges of Acharya Nagarjuna University, shows that a panel of three examiners is appointed by the Vice-Chancellor for conducting practical examination/ project viva voce examination of M.C.A. students. One S. S. N. Purneswara Sharma, Department of Computer Sciences, Kakatiya University, Warangal (P.W. 31), is one of the three examiners. He deposed to the factum of holding viva voce examination on 21-6-2004, of all the 3rd year second semester students of Sharada P.O. College. He was assisted by Mr. K. Nehru (P.W. 32). Head of the Department of Computer Science and Applications of Sharada P.G. College. His evidence discloses that the students were called one after another and after he conducted viva voce examination for six or seven students, he heard some shouting above the cellar. Then Mr. Nehru left the room. A girl, who came there to attend the viva voce examination, told him that some incident happened. As per his evidence, 27 students, out of 29 students, were to be examined on that day. A peon of the college came and told him that one student attacked another girl student with a knife and the college authorities requested him (P.W. 31) to discontinue the examination. Later he came to know that a student by name Manohar attacked another student by name Lakshmi. Ex. P. 29 is the list of the 27 candidates for whom the viva voce examination was to be held on that day. It was marked through P.W. 32. Ex. P.29 shows that when the 7th candidate by name V. Jyothirmayi was under completion, the viva voce examination was stopped.
39. Besides the above evidence there is the evidence of P.W. 32 and P.W. 42, the Office Superintendent of the Sarada P.G. College. In fact, no suggestion was made to P.W. 31 Prof. Purneshwara Sharma that he did not hold any viva voce examination. The Principal of the College examined as P.W. 1 also spoke to the viva voce examination in his cross-examination. The students who are examined as P.Ws. 2, 5 to 13 and 15 also . spoke to the viva voce test. Therefore, it would be preposterous to say that no viva voce examination was held in the college and a story is built up in that regard. There is no need for the above said faculty members and students to speak falsehood in that regard. Therefore, the contention of the learned Counsel that no proof of viva voce examination placed before the Court would not stand to scrutiny.
2) THE EVIDENCE OF THE EYE-WITNESSES AND THE CIRCUMSTANCES FOUND AT THE SCENE OF OFFENCE :
a) Non-presence of blood on books :
40. We have already noted that the victim girl was looking into the books when the accused hacked her. The learned Counsel Mr. C. Padmanabha Reddy strenuously con- tends that no blood was found on the record books held by the girl. The learned counsel points out that in the observation report attested by P.W. 33 it is not noted that there are blood-stains on the books. The over-whelming evidence on record shows that the accused attacked the victim, who was sit-ting on the bench keeping her head down, from behind. The evidence of the doctor, P.W. 37, who conducted post-mortem examination over the dead body of the deceased, discloses that the deceased sustained 5 external injuries on the head. They are shown as injury Nos. 1 to 5 in the post-mortem report Ex. P.32. Injury Nos. 6 to 9 are the result of the above external injuries. It must be noted that all the injuries were caused on the head. The human scalp is covered by the skin only which contains very thin blood vessels. Unlike the injuries caused on the other parts of the body the injuries caused on the head will not result in profuse bleeding. There will not be flashing of blood. Exs. P.7, 8 and 10 photos taken at the mortuary by P.W. 23 clearly show that the injuries are caused by hacking. Exs. P. 11 to P. 17 are the photos taken by him at the scene of offence. The place where pool of blood is found is exposed in Ex. P. 17 more clearly. Ex. P. 13 shows a book on the table and there are no noticeable blood stains on it. It is evident that after (he attack, the girl has fallen aside, which would naturally result in blood staining of the floor of the class room, which the photos evidently demonstrate. This way, the non-presence of the blood on the books can be explained. Thus, we repel the contention of the learned Counsel.
b) Medical evidence vis-a-vis ocular evidence:
We see no force in the contention of the learned Counsel that the medical evidence does not run in conformity with the eye-witnesses. It is the categorical evidence of all the witnesses that the accused hacked on the head and in fact all the injuries are found on the head only by the doctor. Whether the injuries caused are oblique, vertical or horizontal depends on the mode in which the weapon was yield while hacking the victim. The seat of injury also depends on the movement of the head of the victim when she was hit and that is clearly fitting in this case.
c) Non-Presence of the Blood Stains on the Knife-M.0.1 :
The weapon-M.O. 1 was seized from the house of one Uma Maheshwari, who is said to be the cousin sister of the accused, on 29-6-2004. Ex. P. 34 panchanama under which the knife was seized does not state the presence of any blood-stains on the knife. The mediator P.W. 38 in whose presence the weapon-M.O. 1 was seized also does not say that the knife was blood stained. It is only P.W. 5, the Investigating Officer, who stated about the blood stains on the knife as follows :
"The 1st accused told us that he would show the place where he concealed the blood stained knife and blood stained shirt if he was taken there. ..."
...
"The 1st accused brought the knife-M.O. 1 and blood stained T' shirt-M.O. 20."
41. Thus, P.W. 45 also does not state that the knife was found stained with blood at the time of its seizure. Thus, it is nobody's case that the knife contained the blood stains at the time of seizure. At this juncture, it shall be noted that the weapon was seized 8 days after the commission of the offence. The evidence of P.W. 16, as already noted by us earlier, while narrating the sequence of events, after committing the offence the accused went towards Radha cinema hall, wiped M.0.1 knife to his pant and put it in his waist, this explains the non-presence of the blood-stains on the knife-M.O.1.
3) SURRENDER BEFORE CHENNAI POLICE -- PROOF :
42. P.W. 30 is a resident of Chennai and the friend of the father of the accused for the last 30 years, admittedly. He gave number of details of the family of the accused. Till 1983, the parents of the accused stayed in Madras. Even thereafter, the father of the accused served was posted in the nearby places around the borders of Andhra Pradesh and Tamil Nadu States. He states that after the family shifted to Ongole, the father of the accused sold away their house at Madras. Thus, he is a person intimately known to the family of the accused. The accused appeared before him on 28-6-2004 at 8.30 p.m. and it is he who took the accused to the Commissioner of Police. We are convinced from the manner in which this witness gave evidence and the details he spoke; that his evidence is more natural in its approach and stands to every reason and also in the fitness of happenings. The accused having committed the murder boldly who walked out of the college with his head held high fearlessly, must have realized later that he would be caught by police one day. Naturally such an accused would opt to leave the place immediately. This is the natural flow of psychology of any person of that type. Ongole is nearer to Madras andmore over his family stayed in Madras for a long time. P.W. 30 is their family friend. Therefore, we see nothing strange in the accused going to P.W. 30 and P.W. 30 taking him to the police. The D.I.G. and Joint Commissioner of Police, Chennai (P.W. 34) before whom the accused was taken and P.W. 35, the then Inspector of Police, Egmore to whom the accused was sent by P.W. 34, testified the factum of surrender of the accused. P.W. 35 says that he informed the police at Vijayawada. It was on 29-6-2004 P.W. 45 visited Egmore police station and took the accused into custody and brought him to Vijayawada. Thereafter, the interrogation, recovery of clothes and seizure of the weapon-M.O.1 had taken place. P.W. 45 states that in Chennai, no panchanama was prepared as nobody came forward. P.W. 34 and P.W. 35, the police personnel of Madras cannot be said to have colluded with the Andhra Pradesh police by any stretch of imagination more particularly when the unimpeaching evidence of P.W. 30 supports their version. When this flow of events and things is taken in account, the evidence of P.W. 45 sounds to be very natural and plausible. The fact that there is no written proceedings as regards the arrest of accused cannot deter us from coming to the conclusion that the alleged surrender and arrest in Chennai are true. There is no other go for us except to believe the testimony of P.Ws. 30, 34 and 35. The evidence of P.W. 45 is in the continuation of the events and is consequential. It cannot be easily brushed aside. It appears no G.D. entry was also made, but all these would not stand before the straightforward, natural, convincing and independent evidence placed before the Court. We accordingly reject this contention.
4) EXTRA-JUDICIAL CONFESSION :
43. Extra-judicial confession was made before P.W. 30, an elderly person, who is admittedly, intimately known to the family of the accused and who has been the friend of the father of the accused for the last 30 years. As already pointed out earlier, the accused clearly admitted in Section 313, Cr. P.C. examination that P.W. 30 knew his father for the last 30 years. To whom else the accused can approach for succor and advice in the precarious circumstances which he himself invited and thrust upon himself. He took shelter under P.W. 30 who happened to see the reports of the murder of Sri Lakshmi in the print media. There was a large scale public indignation. The students and the women organizations reacted sharply to the incident and took to streets holding Dharnas and Rastarokos. The event exploded with a bang in print and electronic media. In those circumstances, a similarly situated person cannot escape except to confess before such an intimately known elderly person like P.W. 30, under whom he took shelter. The confession flows out of natural course of sequence of events. Human behaviour in such circumstances can be predicted, more precisely particularly in the cases of youngsters like the accused. This type of mind set is common to human beings. He has to confide before somebody when he is surrounded by all adverse and hostile circumstances, when the fiery octopus of law was stretching and spreading its tentacles to catch the prey and Damocles sword of arrest was hanging on the head. Thus, when the confession is viewed in the light of the circumstances prevailing then, the time, context and the credibility of the witnesses, P.W. 30, who spoke to the confession, we have little doubt that the accused confessed before P.W. 30. As a natural consequence of confession before an elder, the surrender before the Commissioner of Police, Chennai, followed. This surrender which is a natural corollary also fortifies our conclusion.
DELAY OF SIX HOURS IN F.I.R. REACHING THE MAGISTRATE:
44. The First Information Report was lodged by P.W. 1 the Principal of the College, After coming to know of the ghastly incident, he instructed his office people to inform occurrence of the incident to police at the control room and after sending the victim girl to hospital he made enquiries, verified the names of the injured and the assailants from the registers and then lodged the complaint. We cannot find fault with him for taking abundant care that is expected of the head of an institution. The First Information Report was received at 1.00 p.m. and it reached the learned Judicial Magistrate of First Class at 7.45 p.m. The Investigating Officer explained the delay cogently in his evidence. The college students and the women organizations, as already stated earlier, took to streets and held Dharnas, Rastarokos etc., which created law and order problem in the entire city of Vijayawada. Extra police force was drawn from A.P.S.P. Mangalagiri and other places to control the situation. It is in that tense situation the delay of few hours occurred. We do not feel that this few hours delay is fatal to the case of the prosecution when it is explained properly. Accordingly, we do not see any considerable delay in F.I.R. reaching the learned Magistrate in the set of given circumstances.
6) LIE-DETECTOR TEST OPINION OF THE DIRECTOR OF A.P. FORENSIC SCIENCE LABORATORY :
45. The accused was taken to Forensic Science Laboratory of Andhra Pradesh and was subjected to lie detector test. The report of the said laboratory is marked as Ex. P.48. As per the opinion of the expert, the test indicates that :
"I. The statement of Sri Y. Manohar that:
a) He was involved in committing the crime under investigation is TRUE
b) No one has prior knowledge of killing of Sri Lakshmi is TRUE,
c) He killed Sri Lakshmi because he felt harassed by Sri Lakshmi and her associate is TRUE.
46. The learned Counsel, Sri Padmanabha Reddy, contended that Ex. P.48 is not admissible without proof and the expert who conducted the test and offered the opinion ought to have been examined.
47. We point out here the provisions of Section 293 of the Criminal Procedure Code, as per which any document purporting to be a report under the hand of Government scientific expert, upon any matter, duly submitted to him for examination or analysis and report in the course of any proceedings under the Code may be used as evidence in any trial conducted under the Code. As per Sub-section (4)(e), the Section 293 applies to the Director of a State Forensic Laboratory. Therefore, there is no need to examine the expert unless the Court feels it necessary. However, it is only an opinion evidence, which requires corroboration.
48. Having repelled all the points urged by the learned Counsel for the accused and coming back to the evidence of the students, who stood like a rock behind the truth, the core testimony of P.Ws. 5 to 7, 9 and 10 and the evidence of the other students P.Ws. 2, 8, 11 to 13 and 15, who saw the accused entering the college campus and coming out of the room No. 2 etc. is not under attack and it had a totally unassailed smooth sailing. No contradictions of earlier statements of the witnesses were marked with regard to the main incident. The contradictions marked as Exs. D.1 to D.5 do not relate to the incident proper. The prosecution has virtually demonstrated and re-enacted before the Court by cogent, reasonable, convincing and unassailing evidence from all angles, the heinous act committed by the accused. The micro-fiches of evidence gathered are carefully processed into a macro film by the investigating agency. The case is established beyond any shadow of doubt. We are not able to find even a remote trace of doubt in believing the version of the prosecution. In fact, the evidence has overflowed, flooded and breached the bunds of the golden rule of criminal jurisprudence "proof beyond reasonable doubt" not finding any wear or vent to escape.
49. In the appeal preferred by the accused, the conviction of the accused for the offences other than Section 302,I.P.C. is not challenged nor the learned Counsel Sri Padmanabha Reddy advanced any argument in that regard. In view of our foregoing discussion, unhesitatingly with the greatest resolve of our conviction, we confirm the conviction recorded by the trial Judge in all respects.
50. Now steps in our major judicial dilemma as to sentencing. The trial Court heard on the question of punishment at length and ultimately awarded death penalty. Before taking up the question of proportionality of sentence we shall answer a question that cropped up during the course of deliberations between the Bench and the Bar. An issue was raised as to the meaning, import and content of the word "hear the accused" (emphasis is supplied), occurring in Section 235(2), Cr. P.C. For appreciation, we shall extract Section 235, Cr. P.C. "235. (1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law."
51. Section 235(2), Cr. P.C. is a new provision incorporated in the Code of Criminal Procedure, 1973 taking into account emerging trends in penology and sentencing procedures. Such a provision was absent in the old Code. Under the provisions of the old Code, whatever the accused wanted to submit in regard to the sentence had to be stated before the arguments concluded and the judgment was delivered. There was no separate stage prescribed for being heard to the sentence. The accused was expected to make his submissions on the assumption that he was ultimately going to be convicted. Therefore, the Legislature thought it fit to introduce Section 235(2), Cr. P.C. making it obligatory on the part of the Court to hear the accused on the question of sentence only when he is convicted. Thus, pre-sentencing hearing is made compulsory. Section 235 contemplates two stages, firstly; the conviction and secondly; the sentencing. These two stages constitutes two different and distinct concepts.
52. In Santa Singh v. State of Punjab, AIR 1976 SC 2386 : (1976 Cri LJ 1875), their Lordships dealing with the question whether the word "hear the accused" occurring in Section 235(2), Cr. P.C. mean merely that the accused has to be given an opportunity to make his submissions or he can also produce material bearing on sentence which has so far not come before the Court, held :
"4. But, on the interpretation of Section 235(2), another question arises and that is, what is the meaning and content of the words "hear the accused." Does it mean merely that the accused has to be given an opportunity to make his submissions or he can also produce material bearing on sentence which has so far not come before the Court? Can he lead further evidence relating to the question of sentence or is the hearing to be confined only to oral submissions? That depends on the interpretation to be placed on the word "hear." Now, the word "hear" has no fixed rigid connotation. It can bear either of the two rival meanings depending on the context in which it occurs. It is a well settled rule of interpretation, hallowed by time and sanctified by authority, that the: meaning of an ordinary word is to be found not so much in a strict etymological propriety of language, nor even in popular use, as in the subject or occasion on which it is used and the object which is intended to be at tained. It was Mr. Justice Holmes who pointed out in his inimitable style that a word is not a crystal, transparent and unchanged : it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used."
Here, in this provision, the word 'hear' has been used to give an opportunity to the accused to place before the Court various circumstances bearing on the sentence to be passed against him. Modern penology, as pointed out by this Court in Ediga Anamma v. State of Andhra Pradesh "regards crime and criminal as equally material when the right sentence has to be picked out." It turns the focus not. only on the crime, but also on the criminal and seeks to personalise the punishment so that the reformist component is as much operative as the deterrent element. It is necessary for this purpose that facts of a social and personal nature, sometimes altogether irrelevant, if not injurious, at the stage of fixing the guilt, may have to be brought to the notice of the Court when the actual sentence is determined." We have set out a large number of factors which go into the alchemy which ultimately produces an appropriate sentence and full and adequate material relating to these factors would have to be brought before the Court in order to enable the Court to pass an appropriate sentence. This material may be placed before the Court by means of affidavits, but if either party disputes the correctness or veracity of the material sought to be produced by the other, on opportunity would have to be given to the party concerned to lead evidence for the purpose of bringing such material on record. The hearing on the question of sentence, would be rendered devoid of all meaning and content and it would become an idle formality, if it were confined merely to hearing oral submissions without any opportunity being given to the parties and particularly to the accused, to produce material in regard to various factors bearing on the question of sentence, and if necessary, to lead evidence for the purpose of placing such material before the Court. This was also the opinion expressed by the Law Commission in its Forty-eighth Report where it was stated that "the taking of evidence as to the circumstances relevant to sentencing should be encouraged and both the prosecution and the accused should be allowed to co-operate in the process."
The Law Commission strongly recommended that "if a request is made in that behalf by either the prosecution or the accused, an opportunity for leading evidence on the question" of sentence "should be given." We are, therefore, of the view that the hearing contemplated by Section 235(2) is not confined merely to hearing oral submissions, but it is also intended to give an opportunity to the prosecution and the accused to place before the Court facts and material relating to various factors bearing on the question of sentence and if they are contested by either side, then to produce evidence for the purpose of establishing the same. Of course, care would have to be taken by the Court to see that this hearing on the question of sentence is not abused and turned into an instrument for unduly protracting the proceedings. The claim of due and proper hearing would have to be harmonised with the requirement of expeditious disposal of proceedings."
53. Thus, the Supreme Court held that, the hearing contemplated under Section 235(2), Cr. P.C. is not confined merely to hearing oral submissions, it also contemplates an opportunity to both the sides to place facts and material relating to various factors bearing on the question of sentence and if they are contested by either side the Court should allow both the parties to produce evidence for the purpose of establishing the same. The Supreme Court also held that the material may be furnished by means of affidavit, but if other party disputes the correctness or veracity of the material sought to be produced by the other an opportunity would have to be given to the party concerned to lead evidence for the purpose of bringing such material on record.
54. In Rajendra Prasad v. State of U.P. , the Supreme Court held (paras 91, 92, 93 and 94 of Cri LJ) :
94. A specific stage is prescribed in the trial of eases tried by the Sessions Court in accordance with the procedure prescribed in Chapter XVIII. After the prosecution evidence is complete and the accused is called upon to enter the defence and if evidence is led on behalf of defence, after the defence evidence is complete, the Court should hear arguments of the prosecutor and the advocate on behalf of the accused (see Section 234). Thereafter comes Section 235 which obligates the Court to give a judgment. The question of sentence does not enter the verdict or consideration at: this stage. If the accused is to be acquitted, the matter ends there. If the Court, upon consideration of the evidence led before it, holds the accused guilty of any offence it must pronounce judgment to the extent that it holds accused guilty of a certain offence.
95. Thereafter a statutory duty is cast upon the Court to hear the accused on the question of sentence. Sub-section (2) obligates the Court to hear the accused on the question of sentence. In fact, this provision should be construed to mean that where the Court has to choose one or the other sentence and if with a view to inflicting a certain sentence, special reasons are required to be recorded, obviously the State which is the prosecutor, must be called upon to state to the Court which sentence as prosecutor it would consider appropriate in the facts and circumstances of the case.
96. Where the accused is convicted for an offence under Section 302, I.P.C., the Court should call upon the Public Prosecutor at the stage of Section 235(2) to state to" the Court whether the case is one where the accused as a matter of justice should be awarded the extreme penalty of law or the lesser sentence of imprisonment for life. If the Public Prosecutor informs the Court that the State as prosecutor is of the opinion that the case is not one where extreme penalty is called for and if the Sessions Judge agrees with the submission, the matter should end there.
97. If, on the other hand, the Public Prosecutor states that the cases calls for extreme penalty prescribed by law, the Court would be well advised to call upon the Public Prosecutor to state and establish, if necessary, by leading evidence, facts for seeking extreme penalty prescribed by law. Those reasons and the evidence is support of them would provide the special reasons according to the State which impel capital punishment. It would be open to the accused to rebut this evidence either by submissions or if need be, by leading evidence. At that stage the only consideration relevant for the purpose of determining the quantum of punishment would be the consideration bearing on the question of sentence alone and not on the validity of the verdict of guilty. After considering the submissions and evidence it would be for the Court with its extreme judicious approach and bearing in mind the question that the extreme penalty is more an exception, to determine what would be the appropriate sentence. This would ensure a proper appreciation of vital considerations entering judicial verdict for determining the quantum of sentence."
55. It is pertinent to note that a specific observation was made by the Supreme Court that the only consideration relevant for the purpose of determining the quantum of punishment would be the consideration bearing the question of sentence alone and not on the validity of the verdict of guilt. Therefore, the evidence that shall be produced before the Court on the point shall be relevant and confined to the quantum of punishment to be awarded and nothing else. The evidence that has to be produced in that regard has nothing to do with the validity of the verdict of guilt, The evidence so produced shall not have any bearing of conviction. Where the realm of conviction ended, the realm of sentencing and the quantum of sentence would begin. Both are two different concepts and this should be borne in mind.
56. In Muniappan v. State of Tamil Nadu, , it is held as under (para 2) :
'The obligation to hear the accused on the question of sentence which is imposed by Section 235(2) of the Criminal Procedure Code is not discharged by putting a formal question to the accused as to what he has to say' on the question of sentence. The Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence. All admissible evidence is before the Judge but that evidence itself often furnishes a clue to the genesis of the crime and the motivation of the criminal. It is the bounden duty of the Judge to cast aside the formalities of the Court scene and approach the question of sentence from a broad sociological point of view. The occasion to apply the provisions of Section 235(2) arises only after the conviction is recorded. What then remains is the question of sentence in which not merely the accused but the whole society has a stake. Questions which the Judge can put to the accused under Section 235(2) and the answer which the accused makes to those questions are beyond the narrow constraints of the Evidence Act. The Court, while on the question of sentence, is in an altogether different domain in which facts and factors which operate are of an entirely different order than those which come into play on the question of conviction. The Sessions Judge, in the instant case, complied with the form and letter of the obligation which Section 235(2) imposes, forgetting the spirit and substance of that obligation."
57. Thus, the Supreme Court held that the conviction and sentence are different domains; The facts and factors that operate are of entirely different order in those domains and one cannot transgress on another. A clear distinction is brought out between the two spears namely 'conviction' and 'sentence.' These areas of operation are different. One should not be confused with the other. The rigours of Evidence Act have no application in the realm of sentencing, which altogether stands on a different footing. So far as the sentence is concerned, the paramount consideration is societal interest and not merely that of the accused.
58. From the conspectus of the above decisions, the following guidelines can be formulated :
1) After recording conviction the Court must call upon the prosecutor to state which sentence the State would consider appropriate in the facts and circumstances of the case.
2) When the accused was convicted for the offence under Section 302, I.P.C., the Court should call upon the Public Prosecutor whether the case is one where the accused as a matter of justice should be awarded the extreme penalty of law or the lesser sentence of imprisonment for life. If the Public Prosecutor informs the Court that the case is one where extreme penalty is called for and the Sessions Judge agrees with the submission, the matter should end there.
3) If the prosecutor states that the case calls for extreme penalty prescribed by law, he should be asked to state and establish, if necessary, by leading evidence, facts for seeking extreme penalty prescribed by law.
4) It would be open to the accused to rebut the evidence produced by the State either by submissions or if need be by leading evidence.
5) The material may be placed by both sides, by means of affidavits also. But if either party disputes the correctness or veracity of the material sought to be produced by the other, and opportunity would have to be given to the party concerned to lead evidence for the purpose of bringing such material on record.
6) The material so produced shall be relevant for the purpose of determining the quantum of punishment only. Any material which has no bearing on the question of sentence cannot be permitted.
(The evidence produced shall have nothing to do with the validity of conviction recorded)
7) The rigour of Section 54 of the Indian evidence Act have no application to the material so produced.
59. In the case on hand, some evidence is let in on the previous character of the accused. In fact, we have dealt with various incidents at the out-set of the judgment reflecting his conduct. History sheet, maintained by Ongole Taluq Police Station is marked as Ex. P. 43. A question crops up here as to whether evidence as to previous character is barred under Section 54 of the Indian Evidence Act, which reads as under :
"54. Previous bad character not relevant, except in reply.-- In criminal proceedings the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant.
Explanation 1.-- This section does not apply to cases in which the bad character of any person is itself a fact in issue.
Explanation 2.-- A previous conviction is relevant as evidence of bad character."
60. We have held that pre-sentencing hearing is a separate domain which has nothing to do with the realm of conviction. The provisions of the Evidence Act are very much relevant as to the evidence adduced for inviting conviction. But the narrow constraints of the Evidence Act cannot be allowed to have sway to bar the material sought to be produced by both sides to enable the Court to determine the quantum of sentence. Viewed from that angle, it cannot be said that Section 54 applies with all its rigour to the material sought to be produced in regard to sentencing. Therefore, we are of the opinion that any material relating to previous bad character of the convict can be placed before the Court, but the other side is entitled to dispute the correctness or veracity of the material sought to be produced and it may lead evidence for that purpose. We draw support of this conclusion from the following passage in Mangal Singh v. State of Madhya Bharal, .
"6. It was next urged that a great deal, of evidence in the nature of bad character of the appellants had been admitted to the prejudice of the appellants, that such evidence was inadmissible and the Courts below must have been prejudiced against the appellants by such evidence. It seems to us, however, that the evidence which discloses certain unpleasant things about the appellants in the past was examined by the Courts in order to ascertain the motive for the murder and not for the purpose of determining as to whether the appellants were persons of bad character likely to commit murder. Some of the evidence also showed that at least some of the appellants could have been in possession of firearms. It does not appear to us, on examination of the judgments of the Courts below, that any part of this evidence was used by them against the appellants in order to support any doubtful evidence in the case. The conviction of the appellants was based entirely upon the evidence of Surjansingh, P.W. 15 and Santokh Singh, P.W. 16."
61. Thus, the Supreme Court held that evidence produced to establish the bad character of the accused must be confined to the establishment of motive for the murder only and not for the purpose of determining as to whether the appellants were persons of bad character likely to commit murder and that evidence cannot be used to support any doubtful evidence in the case and for conviction. Thus, a clear distinction is drawn between establishment of motive and conviction. Such evidence as to the bad character can be used only to establish the motive for the murder and in no way it can be used for recording conviction. In the same way, extending the analogy, we are of the opinion that the material as to the previous bad character can be received in so far as the sentencing is concerned, but it can be in no way used for the purpose of determining the guilt of the accused. The meaning, import and extent of the word 'Criminal Proceedings' occurring in Section 54 of the Indian Evidence Act shall be limited and restricted to the domain of the proceedings that take place till conviction is recorded and the same cannot be extended to its field covered by Section 235(2), Cr. P.C.
62. Now coming to the previous conduct and character of the accused, we have already recorded various incidents that demonstrated his mental aberrations. There is no need to expand further and all of them in fact go uncontroverted. A history sheet was maintained by Ongole Taluk Police Station. In fact, a writ petition in W.P. No. 4943 of 1999 was filed by the accused for declaration that opening of rowdy sheet against him is illegal. (Vide Ex. P.44). However, it is admitted that rowdy sheet is closed prior to the commission of the offence in this case. The previous murder case also ended in acquittal. All this goes to establish the previous criminal conduct of the accused. But, would it all justify the imposition of death penalty is the question here. In Bachan Singh v. State of Punjab, , the Constitutional Bench of the Supreme Court discussed at length the legal question of whether the provisions of the death penalty as an alternative punishment for murder is violative of Arts. 19 and 21 of the Constitution of India and by majority, its constitutional validity was upheld. In the said case "rarest of rare cases" formula for imposing death sentence in a murder case has been evolved by the Supreme Court. It has dealt with the aggravating circumstances and mitigating circumstances as worked out by Dr. Chitale as follows :--
"Aggravating circumstances : A Court may, however, in the following cases impose the penalty of death in its discretion :
(a) if a murder has been committed after previous planning and involves extreme brutality; or
(b) if the murder involves exceptional depravity; or
(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed--
(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or
(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demand in his aid or requiring his assistance under Section 37 and Section 129 of the said Code."
"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."
The aggravating circumstances enumerated by the Supreme Court are not exhaustive but only suggestive.
63. In Machhi Singh v. State of Punjab. , the Apex Court while discussing the aggravating and mitigating circumstances laid down principles which would serve as guidelines to the Courts while deciding the sentences to be awarded in murder cases. It held (paras 33, 34 and 35), "In this background the guidelines indicated in Bachan Singh's case (1980 Cri LJ 636) (supra) 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 from Bachan Singh's case :
(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability;
(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime;'
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances;
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
In order to apply these guidelines inter alia the following questions may be asked and answered :
(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?
If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the Court would proceed to do so."
The Court has also dealt with various parameters such as manner, motive for commission of murder etc. The passages worth quoting are as under :
"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 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 rules 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 to 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 center 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.
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.
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 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; (c) a murder is committed in the course for betrayal of the motherland.
III. Anti-social or socially abhorrent nature of the crime.
(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.
(b) In cases of 'bride burning' and what are known as 'dowry-deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
IV. Personality of victim or murder.
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 visa-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."
The above two decisions still hold the field and they form leading decisions of the Supreme Court.
64. For coming to the conclusion that this case falls under the rarest of rare cases, where the extreme penalty is called for, the trial Court gave the following reasons.
1) There was no apparent or ostensible reason for the accused to develop any hatred or bitterness against the deceased, who was a gold medallist in her graduation and first or second ranker in M.C.A. post-graduation.
2) It is a pre-planned and diabolical murder and the accused meticulously executed the plan in broad day light.
3) A false and motivated defence was set up.
4) The incident shook the conscience of public in general and the student community in particular and resulted in public out cry and demonstrations expressing public indignation.
5) The accused had criminal background.
65. Dealing with the mitigating circumstances, the trial Court stated that there is only one circumstance i.e. the age and held, it cannot be said to be the mitigating circumstance as laid down by the Supreme Court in Ram Deo Chauhan alias Rajnath Chauhan v. State of Assam, 2001 (2) Andh LT (Cri) 237 : (2001 Cri LJ 2902),
66. In his examination under Section 313, Cr. P.C. the accused gave his own reasons as to why he felt harassed by Srilakshmi. It appears he has his own perception of things in the background of his life. He always wanted to establish his supremacy and felt that, everybody should be afraid of him. If anybody opposed him he would not. tolerate. Psychiatrists say that superiority complex is an outward expression of inward inferiority complex, probably lack of feeling of security too. Sensitivity is a relative term. There are people who become furious and become venomous for small and trivial tilings and provocation. In the other extreme there are people endowed with lot of patience and endurance. The polarities exist in the creation. We agree with the feeling of the trial Court Judge that the accused developed hatred or bitterness towards the deceased without any valid ground that appeals to the man of ordinary prudence. We also agree that the murder was pre-planned. The student community and the women organizations reacted sharply. If such things are allowed to happen in the educational institutions, where the personalities of the future citizen of India are chiselled and sculpted, the same spells a ruin on the posterity. However, we do not agree that a false and motivated defence is set up. It is suggested to the witness that on account of some caste conflict the case is foisted. In every criminal case, every accused would set up false defence attributing motive, some motive or the other in filing the case against him and it has become too common now-a-days. Viewed against: the common standards of litigants particularly in criminal cases, the plea of caste conflict need not be taken seriously. Though the accused, had criminal background to which we have already adverted it would be difficult to come to a ready conclusion that he proves to be a menace to the society in future,
67. The first, two of the aggravating circumstances, enumerated in Bachan Singh's case (1980 Cri LJ 636), viz. murder was committed after previous planning and extreme brutality was involved and it involves exceptional depravity would stand to scrutiny in the case on hand.
68. Corning to the mitigating circumstances, the age of the accused, being 27 years he cannot be sentenced to death. However, the trial Court held that in view of the ruling in Ram Deo Chauhan's case (2001 Cri LJ 2902) (supra) held that young age cannot be taken as mitigating circumstances. As to the probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society, it is very difficult to assess. No prognosis is possible. We are not omniscient. We are human judges. But it must be remembered that the accused is at the peak of youthful vigour. There is a possibility of his mellowing down after some years. With the advancement of age, wisdom may dawn on him and he may realize the folly committed by him. Nemesis already started flowing. The probability that the accused can be reformed and rehabilitated also cannot be ruled out. The State shall satisfy the Court that the probability that the accused would commit the criminal acts of violence as would constitute a continuing threat to society and the accused cannot be reformed and rehabilitated, but enough material is not placed in that regard by the State.
69. A Committee of Doctors appointed by the trial Court opined that the accused did not manifest any signs and symptoms of psychiatric disorder, but he is only lacking concern for others. We cannot say that the trend would continue throughout his life. There are people who underwent total metamorphosis in their lives. We do not know whether this incident is a starting point for the accused as well in that direction. It is not as if the accused herein has to be killed inevitably for the sake of self-prevention of the society. There is no doubt that the manner in which the offence is committed is brutal. When the magnitude of the crime is taken, this is not a case where multiple' murders were committed. No doubt, the girl is innocent. But, can we say that there is no solution except to hang the murderer to death. Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment, appears to be an altogether inadequate punishment. We find it difficult to hold 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 accused.
70. It is a fundamental principle that each case must be decided on its own facts. In State of U.P. v. Satish, 2005 SCC (Cri) 642, the accused committed rape on a minor girl less than six years and murdered her. The Supreme Court held that it falls within the category of rarest of rare cases. A note put up by the Editor of the Supreme Court Cases is worth mentioning here.
"But in a similar situation (or worse, of abduction as well) other Benches of the Supreme Court in Surendra Pal Shivbalakpal v. State of Gujarat, and State of Maharashtra v. Mansingh, (2005) 3 SCC 131 : 2005 SCC (Cri) 657, have felt differently and awarded life imprisonment instead. On the other hand, earlier decisions of the Supreme Court in Laxman Naik v. State of Orissa, ; Dhananjoy Chatterjee v. State of W.B., ; Kamta Tiwart v. State of M.P., and Molai v. State of M.P., , have held death sentence appropriate where rape and murder of a minor girl was involved. Besides deterrence, retribution still survives as an object of punishment (Dhananjoy Chatterjee v. State, of W.B., and Jacob George Dr. v. State of Kerala, and one may consider looking at the situation intimately from the prospective of John Grisham : A time to Kill.)"
The same Bench held that, "award of punishment following conviction at a trial in a system wedded to the rule of law is the outcome of cool deliberation in the courtroom, after adequate hearing given to all parties to make and rebut accusations."
71. We share the view that society, particularly student community, should not become a safety net for criminals. At the same time, it must be remembered that young minds and very much prone now-a-days to violence which has become the order of the day owing to number of reasons which cannot be spelt out here. The accused wanted to establish his supremacy and the same is found to have undesirable ramifications. It resulted in his self-destruction ultimately. But it does not automatically follow therefrom that the same psychology persists throughout his life.
72. The Judges in our culture are supposed to be men and women of peace, of reflection, of deliberation, the antithesis of warriors, presidents, or even corporate CEOs. They are theoretically selected for qualities of intellectual agility, dedication to enduring values, compassion and care for others, and their ability to step away from the battles of the day and to articulate the principles of a rational and orderly society....
73. The fact that the news of the event exploded in the print and electronic media and it led to demonstrations and Dharnas by student and woman organization shall not hold us from delivering justice according to law.
"A trial by press, electronic media or pub lie agitation is Very antithesis of rule of law. It can well lead to miscarriage of justice. A Judge has to guard himself against any such pressure and he is to be guided strictly by rule of law. If he finds the person guilty of an offence he is then to address himself to the question of sentence to be awarded to him in accordance with the provisions of law. (State of Maharashtra v. Rajendra Jawanmal Gandhi, )."
74. Print and Electronic media cannot provide any guiding factors in drawing balance sheet of aggravating and mitigating circumstances. Nor can we be guided by emotion which is the ruin of the reason, Extinguishing a flame of life in its youth would be proper or not, that agitates our mind. We are expected to judge things with perfect equanimity. We have no political interests to yield to agitations and out-cries of organizations based on class, creed, gender etc. We are independent in our domain. Societal interest is of paramount consideration for us and it is our guiding factor. Unless we are sure, doubly sure, and thoroughly sure it would be outrageous on our part to hold that the accused would prove himself a menace to the society in future. We are not arrogating to ourselves 'sarvagnatya', for it's the sole attribute of God. But we are guided by our limited experience of men, matters and law. We do not claim that we are infallible for to err is human. Craving for recognition and urge to be noticed by everybody might have swept the mind of this young man leading to commission of heinous crime. He hails from a family, the antecedents of which are otherwise normal and respectable. Once he is pulled out of this conditioned mind, drawn out of cocooned thinking and put to exposure to good word dedicated to cultivating good values of life, we hope he will be able to see the light of wisdom and prudence will dawn on him. He will be amenable to reform. Thus, when the aggravating and mitigating circumstances are drawn up, we are of the opinion that mitigating circumstances out weigh the aggravating circumstances.
75. It is said public memory is always short. If he is asked to embrace the noose the public will forget the incident soon.
76. Now the accused is condemned by fellow students by fair sex, by society and by everybody. He is already put to a social death. He has become a living fossil. Extinguishing a flickering flame of life legally is not difficult. But would it serve the purpose? If the accused is allowed to remain as a living fossil and an exhibit before the society it will have a soothing and enduring effect on the society. Posterity will learn from him if life imprisonment is awarded. The act committed by him may not burrow its way potently into receptive young minds. In all earnest, we feel that putting him to death is not the solution. He can be given a chance to reform himself and become a better and responsible citizen. We fervently hope that long incarceration and the advancement of age will have a desired effect on his mind leading to positive change. One day he may realize that all the perfumes of Arabia may not wash his dirty linen and that would prove a turning point in his life. The memory of the savage act he committed may haunt him throughout life making him feel the urge to compensate the society. It is not as if the accused committed several series of murders. As already stated, the previous murder case ended in acquittal. Therefore, we cannot take note of It. We do not think that he will continue to be a proved menace to the society in future. We weighed carefully the pros and cons. We thought pondered and reflected over the problem and our answer is nay for the noose and yes for the life incarceration. We want to wield the sword made of peace and not sword of curse. Therefore, after deep reflection, we are of the view that this is a case where the interest of society can be served by imposing the life imprisonment than putting the accused to death.
77. Accordingly, we feel that the death sentence imposed by the trial Court shall be converted to Life Imprisonment.
78. Before parting with the case, we would like to address ourselves to a trivial point but of some importance to the subordinate judiciary. The learned trial Judge while giving his reasons that forced him to impose death sentence chose to give the reasons in Telugu also. The learned Counsel for the accused found fault with him for incorporating that para in Telugu. Chapter XXIII of the Code of Criminal Procedure deals with the evidence in Inquiries and Trials. Sub-Chapter 'A' deals with the mode of taking and recording evidence. The Chapter commences with Section 272, Cr. P.C. which runs as follows :
"Language of Courts :-- The State Government may determine what shall be, for purposes of this Code, the language of each Court within the State other than the High Court."
79. Section 353, Cr. P.C. of Chapter XXVII deals with the judgment, as to how it shall be pronounced etc. Section 354, Cr. P.C. dealing with the language and contents of judgment lays down that except as otherwise expressly provided by the Code, every judgment referred to in Section 353 shall be written' in the language of the Court. If Telugu is declared to be the language of the Court by the competent authority, every criminal Court of original jurisdiction is competent to write its judgments in Telugu also. A notification issued by the State Government in G.O.Ms. No. 485 dated 29-3-1974 is placed before us, wherein English and Telugu or English, Telugu and Urdu are notified to be the languages in different Districts of Andhra Pradesh. So far as Krishna District is concerned, English and Telugu are the languages notified as the languages of the Court. Though the said notification was issued under Section 272, Cr. P.C., the language of the Section is clear that the languages notified in exercise of the power under the said Section would be the languages of the Court for all the purposes of the Code. In our view no further notification declaring Telugu language as the language in which the judgment can be written is required. The fact that Section 272 occurs in a Chapter dealing with enquiries and trials : mode of taking evidence and recording of evidence in our view makes no difference. It is the settled principle of the interpretation of statutes that the chapter heading do not control the express language of the Section. Even otherwise, in this case the trial Court wrote the entire judgment In English language only, but for a paragraph at the end while giving reasons that prompted it to impose the extreme penalty of death. The same would not vitiate the judgment in any way, inasmuch as a well-reasoned judgment is given in English language also while dealing with the sentencing aspect.
80. In consequence of foregoing discussion, we confirm the conviction recorded by the trial Court. The sentence of death imposed on the accused is set aside and instead he is sentenced to undergo life imprisonment. The Reference is disposed of accordingly and the Criminal Appeal is allowed to the extent set out above.