Oma @ Omprakash & Anr. Vs. State of Tamil Nadu
Email[From the Judgement and Order dated 27.07.2006 of the High Court of Judicature at Madras in Criminal Appeal No. 566 of 2006]
[From the Judgement and Order dated 27.07.2006 of the High Court of Judicature at Madras in Criminal Appeal No. 566 of 2006]
Mr. Sanjay Jain, Mr. Sudhakar Kulwant, Ms. Rachna Golcha and Ms. Afshan Pracha, Advocates, for the appellants.
Mr. C. Paramasivam and Mr. M. Yogesh Khanna (for Mr. B. Balaji), Advocates, for the respondent.
Criminal Procedure Code, 1973
Sections 366, 354 – Penal Code, 1860, Sections 395, 396, 397 – Death penalty – Robbery/dacoity with murder – Conviction – Death sentence imposed because accused had come from a distance of 2000 km. – Reference made to American and Arabian criminal justice system – Also views expressed by Chief Justice of High Court and by a Bench in rowdy panchayat system, cited – If are special reasons envisaged by Section 354. Held (per Radhakrishnan, J., Mishra, J. concurring) that the way death sentence was imposed is in complete ignorance of principles laid down in Machhi Singh’s and Bachan Singh’s case as the mitigating and aggravating circumstances are not discussed. Ronal James’s [JT 1998 (2) SC 375], Allauddin Mian’s [JT 1989 (2) SC 171] and Naresh Giri’s [JT 2001 (9) SC 279] cases referred with American decisions.
Evidence Act, 1872
Sections 3, 9, 27 – Penal Code, 1860, Sections 395, 396, 397 – Evidence – TIP – Murder with robbery – Conviction – Accused (two) apprehended after 10 years of incident – Nine others remained absconding – These two arrested in Rajasthan in 2005, in connection with a crime of 1996 – Finger print of accused tallied with print lifted from place of incident in 1996 – Disclosure made and iron rod stated to be recovered – However, no TIP conducted in respect of surviving accused (as other died) – Photograph shown to PW, who identified and interrogation made – Recovery of rod not connected with incident – One used allegedly, not recovered – Said recovery also after 10 years – If evidence is reliable and conviction sustainable. Held (per Radhakrishnan, J., Mishra, J. concurring) that on basis of such evidence, no conviction can be sustained. Appeal allowed. Mohd. Iqbal M. Shaikh’s [JT 1998 (3) SC 135], Ravindra Alias Ravi Bansi Gohar’s, Ravi alias Ravichandran’s [JT 1998 (5) SC 292], Dwarkadas Gehanmal’s [JT 1998 (8) SC 100], Mustkeem alias Sirajudeen’s [JT 2011 (7) SC 304] cases referred and relied upon.
Section 354(3) of the Code states whenever a Court awards death sentence, it shall record special reasons. Going by the current penological thought, imprisonment of life is the rule and death sentence is an exception. The legislators intent behind enacting Section 354(3) clearly demonstrates the concern of the legislature. We are disturbed by the casual approach made by the Sessions Court in awarding the death sentence. The special reasons weighed with the trial judge to say the least, was only ones predilection or inclination to award death sentence, purely judge-centric. Learned judge has not discussed the aggravating or mitigating circumstances of this case, the approach was purely crime-centric. (Para 15)
Learned trial judge while showing special reasons referred to law prevailing in Arab countries, like imposing sentence of slashing beheading, taking organ for organ like eye for eye, tooth for tooth and says those are the developments of criminal jurisprudence. Learned judge then says that the accused persons in the present case also deserve death sentence. Learned judge lost sight of the fact that the Criminal Jurisprudence of this country or our society does not recognize those types of barbaric sentences. We are surprised to see how those factors have gone into ones mind in awarding death sentence. (Para 16)
There is nothing like our state or your state. Such parochial attitude shall not influence or sway a judicial mind. Learned judge has further stated, since the accused persons had come from a far away state, about 2000 km to our state for committing robbery and murder, death sentence would be imposed on them. Learned judge has adopted a very strange reasoning, needs fine tuning and proper training.. (Para 17)
Learned trial judge has also opined that the imposition of death sentence under Section 396 of the IPC is the only weapon in the hands of judiciary under the prevailing law to help to eliminate the crime. Judiciary has neither any weapon in its hands nor uses it to eliminate crimes. Duty of the judge is to decide cases which come before him in accordance with the constitution and laws, following the settled judicial precedents. A Judge is also part of the society where he lives and also conscious of what is going on in the society. Judge has no weapon or sword. Judges greatest strength is the trust and confidence of the people, whom he serves. (Para 19)
Criminal Court while deciding criminal cases shall not be guided or influenced by the views or opinions expressed by Judges on a private platform. The views or opinions expressed by the Judges, jurists, academicians, law teachers may be food for thought. (Para 21)
HELD (per Mishra, J.)
In Machhi Singh and Others v. State of Punjab (supra), a three-Judge Bench explained the concept of rarest of rare cases by stating that 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 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. (Para 46)
The learned Sessions Judge, has referred to the prevalence of death sentence in certain countries and observed that in certain countries where law provides slashing, beheading, taking the organ for organ like eye for eye, tooth for tooth to the accused, it shows the growth of criminal jurisprudence. That apart, he had referred to the speech of the then learned Chief Justice of the High Court, and it is clearly demonstrable that the same has influenced his appreciation, analysis and perception. Being influenced by the erroneous notions of law and speech of the learned Chief Justice, may be understanding it totally out of context, his passion and prejudices have dominated over his reasoning faculties and the result, as I perceive, is devastating. (Para 55)
When sentence is imposed, it has to be based on sound legal principles, regard being had to the command of the statute, nature of the offence, collective cry and anguish of the victims and, above all, the collective conscience and doctrine of proportionality. Neither his vanity nor his pride of learning in other fields should influence his decision or imposition of sentence. He must practise the conscience of intellectual honesty and deal with the matter with all the experience and humility at his command. (Para 57)
The view expressed does not sustain the concept of law and rather, on the contrary, exhibits a sanctuary of errors. Speeches or deliberations in any academic sphere are not to be taken recourse to unless they are in consonance with binding precedents. A speech sometimes may reflect a personal expression, a desire and, where a view may not be appositely governed by words, is likely to confuse the hearers. It is a matter of great remorse that the learned trial Judge had ventured to enter into such kind of adventure. It can be stated with certitude that in a criminal trial, while recording the sentence, he should have been guided and governed by established principles and not by personal notions or even ideas of eminent personalities. (Para 59)
FIR was registered against unknown persons. A2, was arrested after ten years on 26.02.2005 in connection with some other crime. We fail to see how PW1 and PW2 could identify A2 in the court at this distance of time. They were guided by the photographs repeatedly shown by the police. (Para 30)
Evidently, the witnesses did not know the accused earlier, hence the accused could be identified only through a test identification parade which was not done in this case, so far as A-2 is concerned. (Para 31)
It is rather impossible to identify the accused person when he is produced for the first time in the court i.e. after ten years since he was unknown to the witnesses. We are of the view that it is a glaring defect which goes to the root of the case since none of the witnesses had properly identified the accused. (Para 35)
One rod was also used for the murder of the deceased persons in this case, but that rod was not recovered. One rod stated to have been recovered at the instance of A2 could not be connected with the crime. PW 5 in his examination-in-chief had stated that the accused had attacked him with a similar rod that was being shown to him which would indicate that the witness could not conclusively connect the rod which was used for committing the crime. Further, the rod was recovered after a period of ten years of the incident and it is highly doubtful, whether it was used for the commission of the offence. (Para 36)
The prosecution, therefore, could not establish the guilt of the second accused beyond reasonable doubt. (Para 38)
2. Haresh Mohandas Rajput v State of Maharashtra [JT 2011 (10) SC 493] (Para 51)
3. Mustkeem alias Sirajudeen v. State of Rajasthan [JT 2011 (7) SC 304] (referred & relied upon) (Para 37)
4. Sham Alias Kishore Bhaskarrao Matkari v. State of Maharashtra [2011 (10) SCC 389] (Para 52)
5. Ravi alias Ravichandran v. State represented by Inspector of Police [2007 (15) SCC 372] (referred & relied upon) (Para 33)
6. Lehna v. State of Haryana [JT 2002 (Suppl.1) SC 577] (Para 50)
7. Naresh Giri v. State of M.P. [JT 2001 (9) SC 279] (referred) (Para 15)
8. Dwarkadas Gehanmal v. State of Gujarat [JT 1998 (8) SC 100] (referred & relied upon) (Para 37)
9. Ravindra Alias Ravi Bansi Gohar v. State of Maharashtra and Others [JT 1998 (5) SC 292] (referred & relied upon) (Para 32)
10. State of W.B. Others v. Shivanand Pathak and Others [JT 1998 (3) SC 701] (Para 58)
11. Mohd. Iqbal M. Shaikh v. State of Maharashtra [JT 1998 (3) SC 135] (referred & relied upon) (Para 31)
12. Ronal James v. State of Maharashtra [JT 1998 (2) SC 375] (referred) (Para 15)
13. Hindustan Times Ltd. v. Union of India and Others [JT 1998 (1) SC 18] (Para 56)
14. Allauddin Mian v. State of Bihar [JT 1989 (2) SC 171] (referred) (Para 15)
15. Machhi Singh & Ors. v. State of Punjab [1983 (3) SCC 470] (Para 12)
16. Bachan Singh v. State of Punjab [1980 (2) SCC 684] (Para 12)
17. Gurbaksh Singh Sibbia v. State of Punjab [1980 (2) SCC 565] (Para 44)
18. Jagmohan Singh v. State of U.P. [1973 (1) SCC 20] (Para 12)
Foreign Cases Referred:
1. Gregg v. Georgia [428 U.S. 153 (1976)] (Para 16)
2. William Henry Furman v. State of Georgia [408 U.S. 238 (1972)] (Para 16)
1. Appellants, herein, were awarded death sentence by the trial court after having found them guilty under Sections 395, 396 and 397 of Indian Penal Code (for short IPC). They were sentenced to death by hanging under subsection 5 of Section 354 of Criminal Procedure Code for offences committed under Section 396 IPC. The trial court after noticing that, the accused persons came from a State about 2000 k.m. away from Tamil Nadu, held as follows:
In this case, the accused came from a state about 2000 k.m. from our state and they did not think that the victims were also human like them but they thought only about the well being of their family and their own life and committed the fear of death amongst the common public of our state by committing robbery and murder for about 11 years. Therefore, this court is of the opinion that the death sentence that would be imposed on them would create a fear amongst the criminals who commit such crime and further this case is a rarest of rare case that calls for the imposition of death sentence.
2. We have noticed that the trial Court, among other grounds, was also influenced by a speech made by the then Chief Justice of Tamil Nadu as well as a judgment delivered by another learned Judge of Madras High Court on rowdy panchayat system. Following that judgment and the provision under Section 396 IPC, the trial court held that the accused deserves no sympathy and he be sent to the gallows.
3. The trial court then placed the matter before the Madras High Court for confirmation of the death sentence awarded to the accused persons. Meanwhile, the accused persons also preferred criminal appeal No. 566 of 2006 against the award of death sentence. The appeal was partly allowed and conviction against Accused Nos. 1 and 2 under Sections 395, 396 and 397 IPC were confirmed but the sentence under Section 396 IPC was modified to that of life imprisonment instead of death sentence. Against which, accused Nos. 1 and 2 came up with this appeal. While this appeal was pending, the first appellant (A1) died and the second appellant (A2) has prosecuted this appeal.
4. The prosecution case is as follows:
The appellants and nine other absconding accused persons entered the house of one Lakshmi (PW 2) at 1 O clock in the night of 07.06.1995 with the intention of committing burglary with iron rods in their hands and burgled 17 tolas of gold and Rs.5,000/- in cash. In that process, it was alleged that they had strangulated Doctor Mohan Kumar, husband of PW 2 with a rope and thereby killed him. It was alleged that the accused assaulted PW 2, her son Sudhakar (PW 5) and other son Sakthivel (PW 6). While escaping, they had also attacked Bormin Varghese (PW 1) with iron rod. FIR Cr. No. 403 of 1995 under Sections 396, 397 IPC was registered at 5.30 am on 07.06.1995 at Police Station Walajapet on the statement of one Patrick Varghese recorded by PW 7. Post-mortem of the deceased was conducted at 2.30 p.m. on 07.06.1995.
5. The prosecution could not nab the accused persons for over ten years. A2 was arrested on 26.02.2005 in connection with some other case in Cr. No. 59 of 1996. It is the prosecution case that his finger prints tallied with the ones lifted from the place of occurrence in that other case. Further, it was also stated, as per the investigation, A2 made a disclosure and pursuant to that the iron rod (M.O. 1) used 10 years back was recovered.
6. A1 was arrested on 21.09.2005 by the special team in connection with some other case in Cr. No. 352 of 2004 of Sri Perumbatoor Police Station. An identification parade was conducted so far as A1 is concerned on 20.10.2005 in which PW 10, Karthik an Auto Driver said to have identified A1. Later, the charge-sheet was filed by PW 15 on 23.12.2005 and charges under Sections 395, 396 and 397 IPC were framed against the accused persons on 24.03.2006.
7. The prosecution examined 15 witnesses to prove the case against the accused persons. Statements of the accused persons were recorded under Section 313 Cr.P.C. on 17.04.2006.
8. The trial court, as already indicated, convicted both the accused persons on 21.04.2006 for the offences under Sections 395, 396 and 397 IPC. The trial court granted life imprisonment under Section 395 and fine of Rs.1,000/- and they were sentenced to death for the offence under Section 396 IPC. They were also sentenced for RI for 7 years under Section 397 IPC.
9. The High Court, as already indicated, vide judgment dated 27.07.2006 converted the sentence of death to life imprisonment under Section 396 IPC and rest of the sentence on other heads were confirmed.
10. Shri Sanjay Jain, learned counsel appearing for the appellant (A2) submitted that the trial court and the High Court had committed a grave error in convicting the accused persons. Learned counsel challenged his conviction mainly on two grounds: one on the ground of non-conducting the identification parade so far as accused No.2 is concerned and other on the ground of recovery of alleged iron rod. Learned counsel submitted that A2 was arrested after ten years of incident and was not properly identified by any of the witnesses. Learned counsel also highlighted the contradictions in the evidence of PW1, PW2 and PW15 and brought out the lacuna in the evidence of those witnesses. It was pointed out that the identification parade was conducted only in respect of A1 who is no more and so far as A2 is concerned, no identification parade was conducted. Further, it was pointed out that the photograph of the appellant was shown to PW 1 which was marked with the objection of the accused. Further, learned counsel pointed out that none of the witnesses in their deposition had stated that they could identify A2. Learned counsel pointed out that it was the prosecution case that a rod was used for committing the crime but was not recovered and the one alleged to have recovered had nothing to do with the crime. Learned counsel submitted that the prosecution miserably failed to prove the case against the appellant beyond reasonable doubt and that this is a fit case where this Court should have given the benefit of doubt and the accused be acquitted.
11. Shri C. Paramasivam, learned counsel appearing for the State submitted that the High Court has rightly confirmed the conviction of the appellant and reduced the sentence to life imprisonment. Learned counsel submitted that there is no fixed rule with regard to the period within which test identification parade be held. Further, it was pointed out that no motive was alleged against the prosecution for the delay in conducting test identification parade. Learned counsel also submitted that even in the absence of test identification parade, the identification of accused persons by the witnesses in court is a substantive piece of evidence. Further, it was also pointed out that the gang of dacoits from Haryana and Rajasthan States used to come down to state of Tamil Nadu and commits heinous crimes like dacoity and murder and after arrest of those accused persons, several undetected cases could be detected and few of the accused persons have been convicted. Learned counsel submitted that the trial court and the High Court have rightly convicted the accused persons relying on the evidence of PW 1, PW 2, PW 5 and PW 10.
12. We are unhappy in the manner in which Sessions Court has awarded death sentence in the instant case. The tests laid down by this Court for determining the rarest of rare cases in Bachan Singh v. State of Punjab [1980 (2) SCC 684] and Machhi Singh & Ors. v. State of Punjab [1983 (3) SCC 470] and other related decisions like Jagmohan Singh v. State of U.P. [1973 (1) SCC 20], were completely overlooked by the Sessions Court. The Sessions Court had gone astray in referring to the views expressed by the then Chief Justice of Madras in a lecture delivered at Madurai, which advice according to the Sessions Judge was taken note of by another learned Judge in delivering a judgment in rowdy panchayat system. Sessions Judge has stated that he took into consideration that judgment and the provision in Section 396 of the Indian Penal Code to hold that the accused had committed the murder and deserved death sentence. Further, the trial court had also opined that the imposition of death sentence under Section 396 IPC is the only weapon in the hands of the judiciary under the prevailing law to help to eliminate the crime and the judgment of the trial court should be on that ground.
13. It is apposite to refer to the special reasons which weighed with the Sessions Judge to award the death sentence which reads as follows:
36. In this case, it has been decided by this court to impose the maximum sentence of death to be imposed on the accused No. 1 and 2, under Section 396 of the Indian Penal Code, under Section 354(3) of the Criminal Procedure Code, the special reasons for awarding such sentence to be given show that the case is a case of rarest of rare cases. Therefore, this court gives the following reasons:
a) xxx xxx xxx
b) Before the enactment of Criminal Procedure Code, many years ago, civilization has come into existence. From the rule of Kingdom to the rule of people and the democracy and constitution came into existence in many countries. In these circumstances, the death sentence is prevailing in all the countries in different from and that sentence is imposed on such criminal who deserves for the same. We all know that more particularly in the court in like America, the sentence like lynching has attained the legal form and given to the deserving criminals and in Arab countries the law provide for imposing sentence like slashing, beheading taking the organ for organ like eye for eye, tooth for tooth. The above mentioned facts are the development of criminal jurisprudence. Therefore, this court is of the opinion that it is proper to impose death sentence to the accused in this case.
(c) xxx xxx xxx
(d) xxx xxx xxx
(e) In this case, the accused came from a State about 2000 k.m. from our State and they did not think that the victims were also human like them but they thought only about the well-being of their family and their own life and committed the fear of death amongst the common public of our State by committing robbery and murder for about 11 years. Therefore, this court is of the opinion that the death sentence that would be imposed on them would create a fear amongst the criminals who commit such crime and further this case is a rarest of rare cases that call for the imposition of death sentence.
(f) The honorable Chief Justice of High Court of Madras, Justice A. P. Shah while delivering a lecture at Madurai said strict laws should be enacted as regard to Child abuse and the persons committing the crime should be punished accordingly. This advise was taken note of the honorable Justice Karpagavinayagm while delivering a judgment on rowdy panchayat system. He ordered that the government should enact suitable law to eliminate this menace. Taking this judgment into consideration and that there is a provision in Section 396 of the Indian Penal Code that the people involved in dacoity can be imposed with death sentence, the accused who have committed the murder without any pity deserve to be imposed with the death sentence. This court is also of the opinion that the imposition of death sentence under Section 396 of the Indian Penal Code is the only weapon in the hands of the judiciary under the prevailing law to help to eliminate the crime. Accordingly this judgment should be. Therefore, this court is of the view that the death sentence should be imposed on the accused.
(emphasis added)
14. We cannot countenance any of the reasons which weighed with the Sessions Judge in awarding the death sentence. Reasons stated in para 36(b) and (e) in awarding death sentence in this case exposes the ignorance of the learned judge of the criminal jurisprudence of this country.
15. Section 354(3) of the Code states whenever a Court awards death sentence, it shall record special reasons. Going by the current penological thought, imprisonment of life is the rule and death sentence is an exception. The legislators intent behind enacting Section 354(3) clearly demonstrates the concern of the legislature. This principle has been highlighted in several judgments of this Court apart from the judgments already referred to. Reference may also be made to few of the judgments of this Court, such as Ronal James v. State of Maharashtra [JT 1998 (2) SC 375 : 1998 (3) SCC 625]; Allauddin Mian v. State of Bihar [JT 1989 (2) SC 171 : 1989 (3) SCC 5]; Naresh Giri v. State of M.P. [JT 2001 (9) SC 279 : 2001 (9) SCC 615] etc. We are disturbed by the casual approach made by the Sessions Court in awarding the death sentence. The special reasons weighed with the trial judge to say the least, was only ones predilection or inclination to award death sentence, purely judge-centric. Learned judge has not discussed the aggravating or mitigating circumstances of this case, the approach was purely crime-centric.
16. We are really surprised to note the special reasons stated by the trial judge in para 36(b) of the judgment. We fail to see why we import the criminal jurisprudence of America or the Arab countries to our system. Learned trial judge speaks of sentence like lynching and described that it has attained legal form in America. Lynching means kill someone for an alleged offence without a legal trial, especially by hanging. Learned judge failed to note that the constitutionality of death sentence came up for consideration before the U.S. Supreme Court in William Henry Furman v. State of Georgia [408 U.S. 238 (1972)], which involved three persons under death sentence, more than 600 prisoners on death row. Five Judges invalidated the death penalty, four dissented and the Court held that death penalty to be cruel and unusual punishment in violation of the 8th and 14th amendments. Later in Gregg v. Georgia [428 U.S. 153 (1976)], the court laid down the concern expressed in Furman. In the United States, some States have done away with death sentence as well. The judges inclination to bring in alleged system of lynching to India and to show it as special reason is unfortunate and shows lack of exposure to criminal laws of this country. Learned trial judge while showing special reasons referred to law prevailing in Arab countries, like imposing sentence of slashing beheading, taking organ for organ like eye for eye, tooth for tooth and says those are the developments of criminal jurisprudence. Learned judge then says that the accused persons in the present case also deserve death sentence. Learned judge lost sight of the fact that the Criminal Jurisprudence of this country or our society does not recognize those types of barbaric sentences. We are surprised to see how those factors have gone into ones mind in awarding death sentence.
17. We are also not concerned with the question whether the criminals have come from 20 km away or 2000 km away. Learned judge says that they have come to our state, forgetting the fact that there is nothing like our state or your state. Such parochial attitude shall not influence or sway a judicial mind. Learned judge has further stated, since the accused persons had come from a far away state, about 2000 km to our state for committing robbery and murder, death sentence would be imposed on them. Learned judge has adopted a very strange reasoning, needs fine tuning and proper training..
18. Learned trial judge in para 36(f) has also referred to a judgment of the High Court rendered by a learned Judge of the High Court on rowdy panchayat system. Learned trial judge has stated that he has taken into consideration that judgment also in reaching the conclusion that death sentence be awarded. We are not in a position to know how that judgment is relevant or applicable in awarding death sentence. Learned trial judge has also not given the citation of that judgment or has given any explanation, as to how that judgment is applicable to the case on hand.
19. Learned trial judge has also opined that the imposition of death sentence under Section 396 of the IPC is the only weapon in the hands of judiciary under the prevailing law to help to eliminate the crime. Judiciary has neither any weapon in its hands nor uses it to eliminate crimes. Duty of the judge is to decide cases which come before him in accordance with the constitution and laws, following the settled judicial precedents. A Judge is also part of the society where he lives and also conscious of what is going on in the society. Judge has no weapon or sword. Judges greatest strength is the trust and confidence of the people, whom he serves. We may point out that clear reasoning and analysis are the basic requirements in a judicial decision. Judicial decision is being perceived by the parties and by the society in general as being the result of a correct application of the legal rules, proper evaluation of facts based on settled judicial precedents and judge shall not do anything which will undermine the faith of the people.
20. We also fail to see how the reasons stated in para 36(f) be a guiding factor to award death sentence. One of the Code of Conduct recognized at the Bangalore Conference of the year 2001 reads as follows:
A judge shall exercise the judicial function independently on the basis of the judges assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducement, pressures, threats or interference, direct or indirect, from any quarter or for any reason.
21. Criminal Court while deciding criminal cases shall not be guided or influenced by the views or opinions expressed by Judges on a private platform. The views or opinions expressed by the Judges, jurists, academicians, law teachers may be food for thought. Even the discussions or deliberations made on the State Judicial Academies or National Judicial Academy at Bhopal, only update or open new vistas of knowledge of judicial officers. Criminal Courts have to decide the cases before them examining the relevant facts and evidence placed before them, applying binding precedents. Judges or academicians opinions, predilection, fondness, inclination, proclivity on any subject, however eminent they are, shall not influence a decision making process, especially when judges are called upon to decide a criminal case which rests only on the evidence adduced by the prosecution as well as by the defence and guided by settled judicial precedents. National Judicial Academy and State Judicial Academies should educate our judicial officers in this regard so that they will not commit such serious errors in future.
22. The High Court of Madras heard the Criminal Appeal No. 566/2006 filed by the accused Nos. 1 and 2, along with Referred Trial 1 of 2006. The High Court, however, did not confirm the death sentence awarded by the trial Court, but awarded life sentence to both the accused persons. As already indicated, we are, in this case, concerned only with the conviction and sentence awarded on the 2nd accused, since 1st accused is no more.
23. We may indicate at the outset that the accused persons were apprehended after a period of ten years from the date of the incident and nine other accused persons are still absconding. The incident had taken place on 07.06.1995 and the accused persons were arrested on 26.02.2005 from Rajasthan in connection with some other case i.e.. Cr. No. 59 of 1996. The prosecution version that A-2 finger prints tallied with ones lifted from the place of occurrence in Cr. No. 59 of 1996. Further, it is also the prosecution case that A2 made a disclosure and pursuant to that iron rod (M.O. No.1) used 10 years back was recovered. An identification parade was conducted so far as A1 is concerned on 20.10.2005, who is now no more. However, no identification parade was conducted so far as A-2 is concerned. It has come out in evidence that the photographs of A-2 was shown to PW 1 by the police on 30.10.2005 and asked him to identify the accused and on identification by PW 1, the accused was interrogated by the police. In cross-examination, PW1 has stated as follows:
Accused No.2 attacked me before I could see him and make any enquiry. He assaulted me with a rod. I could not see with which hand he assaulted me. It is incorrect to suggest that the accused did not assault me as stated by me.
24. PW 1 also further stated in cross-examination as follows:
There was light only after the neighbors switched on the light. It was dark earlier. It is incorrect to suggest that it is not possible to see the accused in the darkness.
25. PW 2 Lakshmi, wife of the deceased in her examination-in-chief stated as follows:
I opened my eyes and saw. When I saw, accused Nos. 1 and 2 were present amongst the persons. I fainted immediately. There was commotion in my house.
26. In cross-examination, she has stated as follows:
In the police interrogation, I did not tell that the accused Nos. 1 and 2 were present in the incident that took place in my house.
27. PW 5, brother of PW 1, in his examination-in-chief has stated as follows:
At that time accused Nos. 1 and 2 attacked me with the rod. I fell down and fainted. When I regained consciousness I was in the room of my father. My father, my mother and younger brother sustained injuries. I asked my mother to wake up my father. Myself and my mother tried to wake up my father. After that neighbors admitted us in the hospital. I remember it was in the C.M.C. hospital. The accused attacked me similar rod that is being showed to me by you. Material object No. 1 is the rod.
28. In cross-examination, PW 5 stated as follows:
In the police enquiry I told that I did not know what happened as I was sleeping. I do not remember whether I told the doctor in the hospital at Valajah that I was assaulted by unknown persons.In the police interrogation, I did not tell that I had seen the accused No. 1 and 2.
29. The investigation officer stated that he did not receive any documents about the arrest of the appellant (A2) and he had not mentioned in the final report about the crimes that had taken place in other States.
30. We may indicate that in the instant case, FIR was registered against unknown persons. A2, as already stated, was arrested after ten years on 26.02.2005 in connection with some other crime. We fail to see how PW1 and PW2 could identify A2 in the court at this distance of time. They were guided by the photographs repeatedly shown by the police.
31. Evidently, the witnesses did not know the accused earlier, hence the accused could be identified only through a test identification parade which was not done in this case, so far as A-2 is concerned. In this connection, we may refer to the judgment of this court in Mohd. Iqbal M. Shaikh v. State of Maharashtra [JT 1998 (3) SC 135 : 1998 (4) SCC 494] wherein this Court held that:
If the witness did not know the accused persons by name but could only identify from their appearance then a test identification parade was necessary, so that, the substantive evidence in court about the identification, which is held after fairly a long period could get corroboration from the identification parade. But unfortunately the prosecution did not take any steps in that regard and no test identification parade had been held.
32. This Court in Ravindra Alias Ravi Bansi Gohar v. State of Maharashtra and Others [JT 1998 (5) SC 292 : 1998 (6) SCC 609] deprecated the practice of showing the photographs for identifying the culprits and held as follows:
The identification parade belongs to the investigation stage and they serve to provide the investigating authority with materials to assure themselves if the investigation is proceeding on the right lines. In other words, it is through these identification parades that the investigating agency is required to ascertain whether the persons whom they suspect to have committed the offence were the real culprits and not by showing the suspects or their photographs. Such being the purpose of identification parades, the investigating agency, by showing the photographs of the suspects whom they intended to place in the TI parade, made it farcical. If really the investigating agency was satisfied that PWs 2 and 12 did know the appellants from before and they were in fact amongst the miscreants, the question of holding the TI parade in respect of them for their identification could not have arisen.
33. In Ravi alias Ravichandran v. State represented by Inspector of Police [2007 (15) SCC 372], this Court held that:
A judgment of conviction can be arrived at even if no test identification parade has been held. But when a first information report has been lodged against unknown persons, a test identification parade in terms of Section 9 of the Evidence Act, is held for the purpose of testing the veracity of the witness in regard to his capability of identifying persons who were unknown to him.
34. Further, it is also held that:
It was incumbent upon the prosecution to arrange a test identification parade. Such test identification parade was required to be held as early as possible so as to exclude the possibility of the accused being identified either at the police station or at some other place by the witnesses concerned or with reference to the photographs published in the newspaper. A conviction should not be based on a vague identification.
35. A-2, it may be noted, was not named in the FIR, nor any identification parade was conducted to identify him by the witnesses. It is rather impossible to identify the accused person when he is produced for the first time in the court i.e. after ten years since he was unknown to the witnesses. We are of the view that it is a glaring defect which goes to the root of the case since none of the witnesses had properly identified the accused.
36. We may notice that it is the case of prosecution that one rod was also used for the murder of the deceased persons in this case, but that rod was not recovered. One rod stated to have been recovered at the instance of A2 could not be connected with the crime. PW 5 in his examination-in-chief had stated that the accused had attacked him with a similar rod that was being shown to him which would indicate that the witness could not conclusively connect the rod which was used for committing the crime. Further, the rod was recovered after a period of ten years of the incident and it is highly doubtful, whether it was used for the commission of the offence. Further, the prosecution case is that a rope was used for the strangulation causing death to Dr. Mohan Kumar, but the rope was not recovered.
37. In Dwarkadas Gehanmal v. State of Gujarat [JT 1998 (8) SC 100 : 1999 (1) SCC 57], this Court has held that it is for the prosecution to prove that the object recovered has nexus with the crime. This Court in Mustkeem alias Sirajudeen v. State of Rajasthan [JT 2011 (7) SC 304 : 2011 (11) SCC 724] held, what is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution. This Court held as follows:
With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution.
38. In this case, the prosecution could not prove that the rod recovered has any nexus with the crime alleged to have been committed by A-2. We are of the view that the prosecution, therefore, could not establish the guilt of the second accused beyond reasonable doubt. The High Court, therefore, committed a gross error in awarding life sentence to A2.
39. This appeal is, therefore, allowed and the conviction and sentence awarded to A-2 is set aside. We are informed that the accused has already served the jail sentence for more than eight years now. A-2 is, therefore, set at liberty, unless he is wanted in any other case.
Dipak Misra, J.
40. I respectfully concur with the conclusion and views expressed by my learned Brother Radhakrishnan, J. However, with regard to the ratiocination made by the learned Sessions Judge while imposing the death sentence, I propose to record my views in addition especially in the context of the reasons which have already been reproduced by my learned brother.
41. Article 141 of the Constitution of India stipulates that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. The reasons ascribed by the learned trial Judge are required to be tested on the bedrock of precedents in their conceptual and perceptual eventuality.
42. In Bachan Singh v. State of Punjab (supra), the majority, after deliberating many an aspect, came to hold that the provision under Section 302 of the Indian Penal Code which provides for imposition of death penalty neither violates the letter nor the ethos and Article 19 of the Constitution. Testing the said provision on the anvil of Articles 14 and 21 of the Constitution, it reaffirmed the view taken by this Court in Jagmohan Singh v. State of U.P. (supra) and held that death penalty does not violate Articles 14, 19 and 21 of the Constitution.
43. The majority proceeded to answer the question whether the Court can lay down standards or norms restricting the area of imposition of death penalty to narrow the categories of murders and, in that context, it opined that standardisation of the sentencing process would tend to sacrifice at the altar of blind uniformity, in fact, indeed there is a real danger of such mechanical standardisation degenerating into a bed of procrustean cruelty. Thereafter, the Bench proceeded to state thus:
As Judges, we have to resist the temptation to substitute our own value-choices for the will of the people. Since substituted judicial made-to-order standards, howsoever painstakingly made, do not bear the people’s imprimatur, they may not have the same authenticity and efficacy as the silent zones and green belts designedly marked out and left open by Parliament in its legislative planning for fair play of judicial discretion to take care of the variable, unpredictable circumstances of the individual cases, relevant to individualised sentencing. When Judges, acting individually or collectively, in their benign anxiety to do what they think is morally good for the people, take upon themselves the responsibility of setting down social norms of conduct, there is every danger, despite their effort to make a rational guess of the notions of right and wrong prevailing in the community at large and despite their intention to abide by the dictates of mere reason, that they might write their own peculiar view or personal predilection into the law, sincerely mistaking that changeling for what they perceive to be the community ethic. The perception of community standards or ethics may vary from Judge to Judge.
[Emphasis added]
44. The majority referred to the decision in Gurbaksh Singh Sibbia v. State of Punjab [1980 (2) SCC 565] and stated that the observations made therein aptly applied to the desirability and feasibility of laying down standards in the area of sentencing discretion. In the case of Gurbaksh Singh (supra), the Constitution Bench had observed thus:
Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions.
45. After stating broad guidelines relating to the mitigating circumstances, the majority ultimately ruled thus:
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.
46. In Machhi Singh and Others v. State of Punjab (supra), a three-Judge Bench explained the concept of rarest of rare cases by stating that 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 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.
47. After stating about the feeling of the community and its desire for self preservation, the Court observed that the community may well withdraw the protection by sanctioning the death penalty. Thereafter, it ruled thus:
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.
48. Emphasis was laid on certain aspects, namely, manner of commission of murder, motive for commission of murder, anti social or socially abhorrent nature of the crime, magnitude of crime and personality of the victim of murder. After so stating, the propositions emerged from Bachan Singh (supra) were culled out which are as follows:
(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.
49. Thereafter, the Court stated that to apply the said guidelines, the following questions are required to 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?
50. In Lehna v. State of Haryana [JT 2002 (Suppl.1) SC 577 : 2002 (3) SCC 76] a three-Judge Bench, after referring to the pronouncements in Bachan Singh (supra) and Machhi Singh (supra), ruled under what circumstances the collective conscience of the community is likely to be shocked. We may fruitfully quota a passage from the same:
A convict hovers between life and death when the question of gravity of the offence and award of adequate sentence comes up for consideration. Mankind has shifted from the state of nature towards a civilized society and it is no longer the physical opinion of the majority that takes away the liberty of a citizen by convicting him and making him suffer a sentence of imprisonment. 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 court room after adequate hearing is afforded to the parties, accusations are brought against the accused, the prosecuted is given an opportunity of meeting the accusations by establishing his innocence. It is the outcome of cool deliberations and the screening of the material by the informed man i.e. the Judge that leads to determination of the lis.
The principle of proportion between crime and punishment is a principle of just desert that serves as the foundation of every criminal sentence that is justifiable. As a principle of criminal justice it is hardly less familiar or less important than the principle that only the guilty ought to be punished. Indeed, the requirement that punishment not be disproportionately great, which is a corollary of just desert, is dictated by the same principle that does not allow punishment of the innocent, for any punishment in excess of what is deserved for the criminal conduct is punishment without guilt.
[Emphasis added]
51. In Haresh Mohandas Rajput v State of Maharashtra [JT 2011 (10) SC 493 : 2011 (12) SCC 56], the Bench referred to the principles in Bachan Singh (supra) and Machhi Singh (supra) and proceeded to state as follows:
The rarest of the rare case comes when a convict would be a menace and threat to the harmonious and peaceful coexistence of the society. The crime may be heinous or brutal but may not be in the category of the rarest of the rare case. There must be no reason to believe that the accused cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute a continuing threat to the society. The accused may be a menace to the society and would continue to be so, threatening its peaceful and harmonious coexistence. The manner in which the crime is committed must be such that it may result in intense and extreme indignation of the community and shock the collective conscience of the society. Where an accused does not act on any spur-of-the-moment provocation and indulges himself in a deliberately planned crime and meticulously executes it, the death sentence may be the most appropriate punishment for such a ghastly crime. The death sentence may be warranted where the victims are innocent children and helpless women. Thus, in case the crime is committed in a most cruel and inhuman manner which is an extremely brutal, grotesque, diabolical, revolting and dastardly manner, where his act affects the entire moral fibre of the society e.g. crime committed for power or political ambition or indulging in organised criminal activities, death sentence should be awarded. (See C. Muniappan v. State of T.N. [JT 2010 (9) SC 95], Dara Singh v. Republic of India [JT 2011 (1) SC 350], Surendra Koli v. State of U.P. [JT 2011 (2) SC 218], Mohd. Mannan v. State of Bihar [JT 2011 (5) SC 167] and Sudam v. State of Maharashtra [JT 2011 (7) SC 335].)
52. In Sham Alias Kishore Bhaskarrao Matkari v. State of Maharashtra [2011 (10) SCC 389], while dealing with the justifiability of imposition of death penalty, the Court took note of the aggravating and mitigating circumstances and eventually opined that though the appellant therein caused death of three persons, he had no pre-plan to do away with the family of his brother and the quarrel started due to the land dispute and, in fact, on the fateful night, he was sleeping with the other victims in the same house and in those circumstances and other material placed clearly showed that he had no pre-plan or predetermination to eliminate the family of his brother. The Bench also took note of his antecedents and did not agree with the view expressed by the High Court which had enhanced the sentence from life to death on the ground that it was a rarest of the rare case where extreme penalty of death was called for.
53. Recently, in Mohammed Ajmal Mohammad Amir Kasab alias Abu Mujahid v. State of Maharashtra [JT 2012 (8) SC 4 : 2012 (9) SCC 1], the Court referred to the earlier decisions and taking note of the terrorist attack from across the border, the magnitude of unprecedented enormity on all scales, the conspiracy behind the attack, the preparation and training for the execution, and more importantly, its traumatizing effect, opined that it was the rarest of rare case to come before this Court since the birth of Republic. The Bench, in that context, expressed thus:
Putting the matter once again quite simply, in this country death as a penalty has been held to be constitutionally valid, though it is indeed to be awarded in the rarest of rare cases when the alternative option (of life sentence) is unquestionably foreclosed. Now, as long as the death penalty remains on the statute book as punishment for certain offences, including waging war and murder, it logically follows that there must be some cases, howsoever rare or one in a million, that would call for inflicting that penalty. That being the position we fail to see what case would attract the death penalty, if not the case of the appellant. To hold back the death penalty in this case would amount to obdurately declaring that this Court rejects death as lawful penalty even though it is on the statute book and held valid by the Constitutional Benches of this Court.
54. We have referred to the aforesaid decisions to highlight that this Court, on number of occasions, has dealt with under what circumstances death penalty could be imposed and what are the mitigating factors not to impose such punishment. Illustrative guidelines have been provided, and, needless to say, it would depend upon the facts of each case. No strait-jacket scale can be provided as has been said in number of pronouncements.
55. As is obvious from the reasoning of the learned Sessions Judge, he has referred to the prevalence of death sentence in certain countries and observed that in certain countries where law provides slashing, beheading, taking the organ for organ like eye for eye, tooth for tooth to the accused, it shows the growth of criminal jurisprudence. That apart, he had referred to the speech of the then learned Chief Justice of the High Court, and it is clearly demonstrable that the same has influenced his appreciation, analysis and perception. Being influenced by the erroneous notions of law and speech of the learned Chief Justice, may be understanding it totally out of context, his passion and prejudices have dominated over his reasoning faculties and the result, as I perceive, is devastating.
56. In Hindustan Times Ltd. v. Union of India and Others [JT 1998 (1) SC 18 : 1998 (2) SCC 242], a two-Judge Bench of this Court referred to an article On Writing Judgments, by Justice Michael Kirby of Australia [[1990 (Vol. 64. Australian Law Journal, p. 691)] wherein it has been highlighted, apart from any facet that the legal profession is entitled to have, it demonstrated that the Judge has the correct principles in mind, has properly applied them and is entitled to examine the body of the judgment for the learning and precedent that they provide and further reassurance of the quality of the judiciary which is the centre-piece of our administration of justice. Thus, the fundamental requirement is that a Judge presiding over a criminal trial has the sacrosanct duty to demonstrate that he applies the correct principles of law to the facts regard being had to the precedents in the field. A Judge trying a criminal case has a sacred duty to appreciate the evidence in a seemly manner and is not to be governed by any kind of individual philosophy, abstract concepts, conjectures and surmises and should never be influenced by some observations or speeches made in certain quarters of the society but not in binding judicial precedents. He should entirely ostracise prejudice and bias. The bias need not be personal but may be an opinionated bias.
57. It is his obligation to understand and appreciate the case of the prosecution and the plea of the defense in proper perspective, address to the points involved for determination and consider the material and evidence brought on record to substantiate the allegations and record his reasons with sobriety sans emotion. He must constantly keep in mind that every citizen of this country is entitled to a fair trial and further if a conviction is recorded it has to be based on the guided parameters of law. And, more importantly, when sentence is imposed, it has to be based on sound legal principles, regard being had to the command of the statute, nature of the offence, collective cry and anguish of the victims and, above all, the collective conscience and doctrine of proportionality. Neither his vanity nor his pride of learning in other fields should influence his decision or imposition of sentence. He must practise the conscience of intellectual honesty and deal with the matter with all the experience and humility at his command. He should remind himself that some learning does not educate a man and definitely not a Judge. The learning has to be applied with conviction which is based on proper rationale and without forgetting that human nature has imperfect expression when founded bereft of legal principle. He should not usher in his individual satisfaction but adjudge on objective parameters failing which the whole exercise is likely to be named monstrous legalism. In this context, I may profitably reproduce the profound saying of Sir P. Sidney:
In forming a judgment, lay your hearts void of fore-taken opinions; else, whatsoever is done or said will be measured by a wrong rule; like them who have the jaundice, to whom everything appeareth yellow.
58. In this context, I may usefully refer to the pronouncement in State of W.B. Others v. Shivanand Pathak and Others [JT 1998 (3) SC 701 : 1998 (5) SCC 513], wherein the High Court had affirmed the death sentence imposed by the learned Sessions Judge. The High Court had commenced the judgment with the expression that it was one of the most sensational trials of the recent years and the murder is a diabolical one because the innocent persons have been killed by the police officers who were supposed to be the protectors of law-abiding citizens. Commenting on the said expression, this Court observed thus:
We are constrained to observe that the High Court has not kept in view the several decisions of this Court and has not examined the circumstances proved while considering the question of sentence but on the other hand, have been swayed away with the fact that the trial is a sensational one, and therefore, the officials must be awarded the extreme penalty of death. We do not find that it is a correct appreciation of the law on the subject dealing with the award of death penalty, even if a conviction under Sections 302/34 IPC is sustained. The learned Sessions Judge also came to the conclusion that the case can be treated to be the rarest of rare cases as police officials on whose shoulders the safety of citizens lies and being the protectors of the society are accused for killing of three civilians without any provocation and resistance.
[Underlining is ours]
58.1. From the aforesaid, it is graphically clear that a judge, while imposing sentence, should not be swayed away with any kind of sensational aspect and individual predilections. If it is done, the same would tantamount to entering into an area of emotional labyrinth or arena of mercurial syllogism.
59. In the case at hand, as is perceptible, the learned trial Judge has primarily been guided by some kind of notion and connected them with civilized world and democracy which, in my considered opinion, should not have been at all referred to. He should remember the language of Article 302 of IPC and the precedents that govern the field for imposition of death penalty. In that event, the perception might have been wrong but it could not have been said that it is based on some kind of personal philosophy. Thus, the view expressed does not sustain the concept of law and rather, on the contrary, exhibits a sanctuary of errors. Speeches or deliberations in any academic sphere are not to be taken recourse to unless they are in consonance with binding precedents. A speech sometimes may reflect a personal expression, a desire and, where a view may not be appositely governed by words, is likely to confuse the hearers. It is a matter of great remorse that the learned trial Judge had ventured to enter into such kind of adventure. It can be stated with certitude that in a criminal trial, while recording the sentence, he should have been guided and governed by established principles and not by personal notions or even ideas of eminent personalities Binding judgments should be the Bible of a Judge and there should not be any deviation. I have said so, so that the trial Court judges are appositely guided and refrain themselves from engaging in innovative creativity or borrowed creativity which has no sanction in Law.
60. Consequently, the appeal stands allowed, the judgment of conviction and order of sentence are set aside and the appellant is directed to be set at liberty forthwith unless he is required to be detained in any other case.
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