Partly allowed

Hem Lal Sah v. The State Of Bihar

Patna HC11 Feb 2014CR. APP (DB)/1045/2013

Case brief

AI extract

What is this about?

Rape and murder convictions and convictions under Sections 4 and 8 of the child sexual offences statute were upheld. Convictions under Sections 6 and 10 were set aside. The Court partly allowed the appeal and replaced death punishment with life imprisonment and a fine.

What did the court decide?

Convictions under Sections 6 and 10 set aside; death sentence replaced with life imprisonment and a fine, payable to the deceased's parents if recovered.

Hem Lal Sah Vs The State Of Bihar — Child Sexual Offences (POCSO) | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Death Reference No.11 of 2013

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(Reference made by the Sessions Judge, Jamui, vide letter, dated 22.10.2013 and appeal against the judgment of conviction, dated 01.10.2013, and the order of sentence, dated 19.10.2013, passed by Shri Jyoti Kumar Srivastava, Sessions Judge, Jamui, in Sessions Trial No. 440 of 2013, arising out of Chandramandhih P.S. Case No. 70 of 2013.)

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===================================================

The State of Bihar

.... .... Petitioner

Versus

Hemlal Sah, son of Biku Sah, resident of Village- Chunmaraydih, P.S. Chandramandi, District- Jamui.

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.... .... Respondent

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WITH

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Criminal Appeal (DB) No. 1045 of 2013

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=================================================== Hem Lal Sah Son of Biku Sah, Resident of Village- Chunmaraydih, P.S.- Chandramandi, Dist.- Jamui

.... .... Appellant

Versus

The State of Bihar

.... .... Respondent.

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===================================================

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Appearance : (In D. REF. No. 11 of 2013) For the Petitioner/s : Mr. Ashwini Kumar Singh, APP For the Respondent : Mr. Prabhat Ranjan Singh, APP (In CR. APP (DB) No. 1045 of 2013) For the Appellant : Mr. Prabhat Ranjan Singh, Advocate. For the Respondent : Mr. G.P. Jaiswal, APP

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===================================================

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CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI AND

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HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH

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ORAL JUDGMENT

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(Per: HONOURABLE MR. JUSTICE I. A. ANSARI) Date: 11-02-2014

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I. A. Ansari & Under challenge, in the present appeal, are the S.P. Singh, JJ . judgment, dated 01.10.2013, passed, in Sessions Trial No.440 of 2013, by learned Sessions Judge, Jamui, and the order, dated 19.10.2013, whereby sentence has been imposed on the accusedappellant.

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2. By the impugned judgment, learned trial Court has convicted the accused-appellant under Sections 376 and 302 of the Indian Penal Code and also under Sections 4, 6, 8 and 10 of the Prevention of Children from Sexual Offences Act, 2012. Following his conviction under Section 302 of the Indian Penal Code, the accused-appellant has been sentenced to death. No separate sentence has been passed against the accused-appellant for his conviction under Section 376 of the Indian Penal Code and/or Sections 4, 6, 8, and 10 of the Prevention of Children from Sexual Offences Act, 2012.

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3. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under:

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(i) Deceased N.K (name not mentioned for the reasons of confidentiality) was daughter of PW 2, who used to live with his brothers having a common courtyard. On 24.08.2013, at about 7.00 A.M., N.K. accompanied by her cousin, R.K. (name not being mentioned), daughter of PW 5, went to paddy field for clearing their bowels. After clearing her bowels, when PW 4 ( R.K.) , aged about 14

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years and a student of school, went to wash her hands, accused Hem Lal Sah, who had been hiding in the bushes, came out, caught hold of N.K. , threw her on the ground and forcibly started having sexual intercourse with her by catching hold of her neck and wrapping a dupatta (a sheet of clothes worn for covering the face), around her neck and said that if she ( N.K. ) shouted, he would kill her. On witnessing the ghastly occurrence, PW 4 went running to her house and narrated the occurrence to her parents and also to the parents of N.K. , whereafter N.K’s parents and also the parents of PW 4 came running to the paddy field and when they reached the said field, they saw accused Hem Lal Sah fleeing away towards south. As the parents and also uncle and aunt of N.K. were seriously concerned about N.K. , they started looking for N.K. and found her dead body lying in the bushes, N.K. having been put to death by tying a dupatta around her neck. They also noticed that paijama (trouser) of N.K. was untied. In the meanwhile, many of the co-villagers of PW. 4 gathered near the place of occurrence and they took N.K’s dead body to her house.

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(ii) A fardbeyan was lodged, on 24.08.2013 itself, at 1.30 P.M., at Chandramandi police station, with regard to the occurrence, by PW. 2, father of N.K . Treating the said fardbeyan as First Information Report, Chandramandi P.S. Case No. 70 of 2013, under Sections 376/302 of the Indian Penal Code, was registered against the accused and police investigation commenced. During investigation, police visited the place of occurrence, held inquest

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over the said dead body, prepared inquest report (Exhibit-2). The said dead body was subjected to post mortem examination, which revealed that the bladder of the said deceased was empty, there was bruise, measuring 3” wide, encircling the neck, bleeding from vagina with lacerated wound extending from vaginal orifice to vaginal canal having blood clots. The injuries found were ante mortem in nature. In the opinion of the doctor, the injuries, on the private parts of the said deceased, were indicative of her having been subjected to forcible penetration and her cause of death was strangulation . During investigation, accused was arrested and, on completion of investigation, a charge sheet was laid, under Sections 376/302 of the Indian Penal Code read with Sections 4/6/8/10 of the Prevention of Children from Sexual Offences Act, 2012, against the accused.

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4. At the trial, as the accused had not appointed any counsel of his choice, a counsel was appointed for his defence by order, dated 09.09.2013, and the charges were framed under Sections 376 and 302 of the Indian Penal Code, on the same day i.e. on 09.09.2013. Charges were also framed under Sections 4, 6, 8, 10 and 12 of the Prevention of Children from Sexual Offences Act, 2012. To the charges so framed, accused pleaded not guilty.

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5. In support of their case, prosecution examined altogether ten witnesses. The accused was, then, examined under Section 313(1)(b) Cr.P.C. and, in his examination aforementioned, the accused denied that he had committed the offences, which, he

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was alleged to have committed, his case being, in brief, that he had, at the relevant point of time, gone to take bath in the river, situated near his house, and, upon returning home, he dressed up, went to the house of Raju Sah and when he returned home, he, on being informed about the dead body of N.K. , went there and saw the said dead body. No evidence, according to the record of the case, was adduced by the defence.

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6. Having found the accused guilty of the offences, which he was charged with, learned trial Court convicted him accordingly. However, on account of the fact that the accused had been sentenced to death following his conviction under Section 302 of the Indian Penal Code, learned trial Court did not pass any separate sentence for other offences, which the accused was held guilty of and accordingly convicted by the learned trial Court.

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7. For the reason that sentence of death has been passed against the accused, learned trial Court, in terms of the provisions of Section 366 Cr.P.C., committed the proceedings of the case to this Court for confirmation of the sentence of death. At the same time, aggrieved by his conviction and sentence passed against him, the accused, as a convicted person, has preferred appeal.

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8. The reference made by the learned trial Court, under Section 366 Cr.P.C., has given rise to Death Reference No. 11 of 2013; whereas the appeal, preferred by the appellant, has come to be registered as Cr. Appeal (DB) No. 1045 of 2013.

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9. We have heard Mr. Prabhat Ranjan Singh, learned

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counsel for the accused-appellant, and Mr. Ashwini Kumar Sinha, learned Additional Public Prosecutor appearing for the State.

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10. Before we enter into the discussion of the merit of the present appeal, we may pause to place on record that according to the learned counsel for the appellant, the trial has been rendered unfair, because of certain infirmities, which had crept into the trial. 11. With regard to the above, it has been pointed out that the accused, on a query made by the learned trial Court on 09.09.2013, informed the Court that he had not appointed any counsel for his defence, whereupon a counsel was appointed by the accused on 09.09.2013 itself and the charges were framed.

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12. It is the submission of the learned counsel for the appellant that when the counsel had been appointed on 09.09.2013, charges ought not to have been framed on the very day of appointment of the counsel for the accused.

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13. Ideally speaking, it would have been appropriate, on the part of the learned trial Court, to have framed charges upon giving some time to the learned counsel, whom the learned trial Court had appointed to defend the accused-appellant.

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14. While, however, considering the above aspect of the appeal, one cannot avoid noticing two material facts, namely, (i) there is no indication from the order, dated 09.09.2013, that the learned counsel, who was appointed to defend the accusedappellant, had sought for time and (ii) we have carefully gone through the materials on record, which have been collected during

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investigation, and we do not find that on the basis of such materials, no charges could have been framed under the penal provisions, whereunder charges have, eventually, been framed by the learned trial Court.

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15. Coupled with the above, and more importantly, we do not find that the framing of the charges, on the day (when the learned counsel was appointed for the accused-appellant), had caused any prejudice to the accused. In fact, we called upon the learned counsel for the appellant to show prejudice, if any, having been caused to the accused-appellant, because of framing of the charges against the accused-appellant on the day, a counsel was appointed for his defence. Nothing could, however, be brought out before us to show that any prejudice was caused to the accusedappellant, because of framing of the charges, especially, when we notice that the materials on record were sufficient to warrant framing of charges.

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16. It has been next contended before us that an application had been made, on 11.09.2013, by the learned counsel, who had been appointed to defend the accused-appellant, at the trial Court, seeking copies of the relevant documents, but the relevant documents were not furnished to the accused-appellant.

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17. While considering the above submission made on behalf of the accused-appellant, we notice that the learned trial Court has mentioned, in this regard, in the order, dated 11.09.2013, that the copies of the relevant document had been

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furnished to the accused-appellant. This apart, omission to furnish to an accused copies of materials, relied upon by the prosecution, would not ipso facto vitiate his trial. It is, therefore, incumbent, on the part of the Court, to determine if any prejudice has been caused to the accused in consequence of omission to furnish copies, unless the Court is satisfied that no prejudice has been caused to the accused, the Court cannot sustain conviction.

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18. In Noor Khan v. State of Rajasthan ( AIR 1964 SC

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286 ), the Supreme Court has held as under:

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“15. The object of Ss. 162, 173 (4) and 207A(3) is to enable the accused to obtain a clear picture of the case against him before the commencement of the inquiry. The sections impose an obligation upon the investigation officer to supply before the commencement of the inquiry copies of the statements of witnesses who are intended to be examined at the trial so that the accused may utilize those statements for cross-examining the witnesses to establish such defence as he desires to put up, and also to shake their testimony. Section 161 (8) does not require a policeofficer to record in writing the statements of witnesses examined by him in the course of the investigation, but if he does record in writing any such statements, he is obliged to make copies of those statements available to the accused before the commencement of proceedings in the Court so that the accused may know the details and particulars of the case against him and how the case is intended to be proved. The object of the provision is manifestly to give the accused the fullest information in the possession of the prosecution, on which the case of the State is based, and the statements made against him. But failure to furnish statements of witnesses recorded in the course of

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investigation may not vitiate the trial. It does not affect the jurisdiction of the Court to try a case, nor is the failure by itself a ground which affects the power of the Court to record a conviction, if the evidence warrants such a course. The provision relating to the making of copies of statements recorded in the course of investigation is undoubtedly of great importance, but the breach thereof must be considered in the light of the prejudice caused to the accused by reason of its breach , for Section 537 Code of Criminal Procedure provides, amongst other things that subject to the provisions contained in the Code no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice. By the explanation to S. 537 it is provided that in determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceeding.

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16. xxx xxx xxx xxx
17. xxx xxx xxx xxx
18. xxx xxx xxx xxx
19. xxx xxx xxx xxx
20. xxx xxx xxx xxx

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21. We may repeat that the provisions of S. 162, Code of Criminal Procedure Provide a valuable safeguard to the accused and denial thereof may be justified only in exceptional circumstances. The provisions relating to the

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record of the statements of the witnesses and the supply of copies to the accused so that they may be utilised at the trial for effectively defending himself cannot normally be permitted to be whittled down, and where the circumstances are such that the Court may reasonably infer that prejudice has resulted to the accused from the failure to supply the statements recorded under S. 161, the Court would be justified in directing that the conviction be set aside and in a proper case to direct that the defect be rectified in such manner as the circumstances may warrant. It is only where the court is satisfied, having regard to the manner in which the case has been conducted and the attitude adopted by the accused in relation to the defect, that no prejudice has resulted to the accused that the Court would, notwithstanding the breach of the statutory provisions, be justified in maintaining the conviction . This, in our judgment, is one of those cases in which such a course is warranted.”

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(Emphasis is supplied)

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19. In order to avoid even a remote possibility of prejudice having been caused to the accused-appellant rendering thereby his trial unfair, we have specifically asked the learned counsel for the appellant if the copies of the statements of the witnesses, who have been examined at the trial, and the copies of the documents, which have been produced and proved at the trial, were not made available to the defence. To the query so made by us, learned counsel for the appellant agrees that the statement of the witnesses, who have been examined at the trial, and the copies of the documents, which have been produced and proved at the trial, had been made available to the defence before the trial actually

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commenced.

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20. In the face of what have been pointed out above, we find that when the documents have already been made available to the accused-appellant and it could not be demonstrated before us that the learned counsel, appointed to defend the accusedappellant, at the trial, was, in any manner, incapacitated from effectively defending the accused-appellant, we find it well-neigh impossible to hold that any prejudice has been caused to the accused-appellant on this count either.

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21. Lastly, it has been submitted, on behalf of the accused-appellant, that a petition was filed, on 26.09.2013, by the defence seeking to examine two witnesses, namely, Yogendra Sah and Dhirendra Sah, but none of them was allowed to be examined by the learned trial Court.

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22. While dealing with the accused-appellant‟s grievances, which have been noted above, it needs to be pointed out that no petition, dated 26.09.2013 (photo copy of which has been made available to us) could be found on the record of the case. This apart, the copy, which has been produced before us, does not bear the seal of the learned trial Court, or signature of the Presiding Judge, or the official date of receipt of any such petition. Above all, we find that the learned trial Court has recorded in its order, dated 26.09.2013, that the defence submits that it has no evidence to adduce in defence and, therefore, the argument of the prosecution was heard and 27.09.2013 be fixed for argument of the defence.

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23. It is trite that what has transpired, during proceedings of a case, in a Court, need to be determined on the basis of what has been recorded by the Court and the correctness of what has been recorded by a Court, as regards what had transpired during proceedings in the Court, cannot be allowed to be contradicted, in the superior Court, by the counsel for the party concerned. Reference may be made, in this regard, to the case of State of Maharashtra v. Ramdas Shrinivas Nayak, (1982) 2 SCC 463 , at page 467 , wherein the Supreme Court has held as under:

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“4. When we drew the attention of the learned Attorney-General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submissions made by him in the High Court. We are afraid that we cannot launch into an enquiry as to what transpired in the High Court. It is simply not done. Public policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. “Judgments cannot be treated as mere counters in the game of litigation .”^{(Per Lord Atkinson in Somasundaram Chetty} V. Subramanian Chetty, AIR 1926 PC 136). We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judges

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to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Atkinson in Somasundaram Chetty V. Subramanian Chetty, AIR 1926 PC 136). That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an appellate court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.

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5. In R v. Mellor [(1858) 7 Cox CC 454 : 6 WR 322 : 169 ER 1084] Martin, B . was reported to have said:

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“We must consider the statement of the learned Judge as absolute verity and we ought to take his statement precisely as a record and act on it in the same manner as on a record of Court which of itself implies an absolute verity.”

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6. In King-Emperor v. Barendra Kumar Ghose [AIR 1924 CAL 257] said:

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“... these proceedings emphasise the importance of rigidly maintaining the rule that a statement by a learned Judge as to what took place during the course of a trial before him is final and decisive : It is not to be criticized or circumvented; much less is it to be exposed to animadversion.”

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7. In Sarat Chandra Maiti v. Bibhabati Debi [AIR 1921 CAL 584], Sir Asutosh Mookerjee explained what had to be done:

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“... It is plain that in cases of this character where a litigant feels aggrieved by the statement in a judgment that an admission has been made, the most convenient and satisfactory course to follow, wherever practicable, is to apply to the Judge without delay and ask for rectification or review of the judgment...”

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8. So the Judges‟ record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else.”

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(Emphasis is added)

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24. Similarly, in Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111 , at page 131, referring to

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the case of Ramdas Shrinivas Nayak, the Supreme Court has

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observed :

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“61. Before parting with the case, we may notice that Mr Tanna appearing on behalf of South Gujarat University in CA No. 1540 of 2002 submitted that various other contentions had also been raised before the High Court. We are not prepared to go into the said contentions inasmuch as assuming the same to be correct, the remedy of the appellants would lie in filing appropriate

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application for review before the High Court. Incidentally, we may notice that even in the special leave petition no substantial question of law in this behalf has been raised nor has any affidavit been affirmed by the learned advocate who had appeared before the High Court or by any officer of the appellant who was present in court that certain other submissions were made before the High Court which were not taken into consideration.”

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25. In Food Corpn. of India v. Bhanu Lodh, (2005) 3 SCC 618 , at page 627, the Supreme Court has pointed out and held as under :

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“11. We may first dispose of the contention raised by Mr Sanjay Parikh, learned counsel for the petitioner in Special Leave Petition (Civil) No. 11475 of 2004. Having perused the judgment of the learned Single Judge in the writ petition, we find that the only question which was argued before the learned Single Judge was the one which we have extracted hereinbefore. No other point seems to have been addressed to the Court. A perusal of the judgment in the writ appeal also supports this view. In the face of this record, it is not possible to accept the contention of the learned counsel for the petitioner that any other arguments were addressed. We must accept as correct the facts as obtaining from the judgment of the High Court, which cannot be controverted by the averments made in the present special leave petition, nor by the statement made across the Bar. We are, therefore, not in a position to accept that any contention other than the contention placed before the High Court was urged before the High Court. (See the observations of this Court in para 4 in the judgment of State of Maharashtra v. Ramdas Shrinivas

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Nayak [1982) 2 SCC 463 ) The only contention which appears to have been urged and examined by the High Court pertained to the power of the Central Government to issue direction under sub-section (2) of Section 6 of the Act, which has the effect of putting an embargo on the direct recruitment of employees.”

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(Emphasis is supplied)

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In Roop Kumar v. Mohan Thedani, (2003) 6

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SCC 595 , at page 606, too, the Supreme Court has held as under :

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“11. It would be logical to first deal with the plea relating to absence of forum of appeal. It is to be noted that the parties agreed before the High Court that instead of remanding the matter to the trial court, it should consider materials on record and render a verdict. After having done so, it is not open to the appellant to turn around or take a plea that no concession was given. This is clearly a case of sitting on the fence, and is not to be encouraged. If really there was no concession, the only course open to the appellant was to move the High Court in line with what has been said in State of Maharashtra v. Ramdas Shrinivas Nayak (1982) 2 SCC 463. In a recent decision Bhavnagar University v. Palitana Sugar Mill (P) Ltd (2003) 2 SCC 111, the view in the said case was reiterated by observing that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call the attention

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of the very judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to the appellant to contend before this Court to the contrary.”

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(Emphasis is added)

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27. In Ram B ali v. State of U.P., (2004) 10 SCC 598 , at page 603, the Supreme Court has held as under :

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“9. We notice that the High Court specifically records that only two points were urged before it. It has to be noted that the statement of as to what transpired at the hearing, the record in the judgment of the Court are conclusive of the facts so stated and no one can contradict such statement on affidavit or by other evidence. If a party thinks that the happenings in court have been erroneously recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges who have made the record, to make necessary rectification. That is the only way to have the record corrected. It is not open to the appellant to contend before this Court to the contrary. [See State of Maharashtra v. Ramdas Shrinivas Nayak (1982) 2 SCC 463, Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111 and Roop Kumar v. Mohan Thedani (2003) 6 SCC 595 ] ”

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(Emphasis is supplied)

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28. In the light of the law, which we have pointed out above, the remedy of the accused-appellant lied in making appropriate application, in the learned trial Court itself, bringing on

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record that what had been mentioned in the order, dated 26.09.2013, indicating that the defence had submitted that it had no evidence to adduce was factually incorrect. Having not done so, it no longer remains open to the defence to agitate, at the appellate stage, before this Court, that the evidence, sought to be adduced by the defence, was shut out and not permitted to be adduced by the learned trial Court.

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29. Because of what had been discussed and pointed out above, we do not find that the trial of the accused-appellant suffered from any such infirmity, which can be taken to have vitiated his trial or rendered his trial unfair.

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30. While considering the present appeal, it may be noted that it is the evidence of PW 4 ( R.K. ) around whose evidence revolves the entire case of the prosecution. Appropriate, therefore, it is that her evidence be taken up, first, for scrutiny.

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31. The evidence of PW 4 (R.K.) shows that according to her, on the day of occurrence, at about 7.00 A.M., she had gone to clear her bowels along with N.K. (since deceased) and after clearing her bowels, when she was washing her hands, she saw accused-appellant Hem Lal Sah coming out of bushes, catching hold of N.K. , throwing her on the ground and starting committing rape on her. It is in the evidence of P.W.4 that the accused caught hold of the neck of N.K. , wrapped a dupatta around her neck and said that if she (deceased) shout, he would kill her. It is also in the evidence of PW 4 that on noticing the scene, she went running to

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her house and narrated the occurrence not only to her parents, but also to her uncle and aunt (i.e. parents of N.K.) and, thereafter, they all came back running to the place of occurrence and saw the accused fleeing away towards south, whereupon the members of their family started looking for N.K. and they found her lying dead, in the bushes, with the dupatta tied around her neck. It is the further evidence of PW 4 that N.K’s paijama (trouser) was found untied and that her dead body was carried from the place of occurrence to her house.

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32. The defence, it may be carefully noted, crossexamined PW 4 at some length and, in her cross-examination, she (PW. 4) has clarified that she, first, noticed accused Hem Lal Sah, when he was at a distance of three to four steps from them and that she shouted, when accused Hem Lal Sah caught N.K., threw her on the ground and began to rape her and it was when accused Hem Lal Sah told N.K. that he would kill her (deceased) that she (PW. 4) started running to her house. In her cross-examination, PW 4 has also clarified that when she reached home, she found her uncle and aunt (i.e. parents of N.K.) at home.

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33. Nothing was brought out from the crossexamination of PW 4 to show that what she had deposed was untrue or false.

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34. In fact, on making a pointed query from the learned counsel for the accused-appellant if anything could be elicited from the cross-examination of PW 4 to show that her evidence was not

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trustworthy, the candid answer of the learned counsel for the appellant was that the evidence of PW 4 has, notwithstanding her cross-examination, remained unshaken and intact.

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35. Bearing in mind the fact that the evidence of PW 4, describing the occurrence, remained unshaken and intact, when we come to the medical evidence on record, we notice that the doctor (PW 8) had, admittedly, conducted post mortem examination, on 24.08.2013, at 4.50 P.M., on the dead body of the said deceased, and found as follows:

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“ (i) Face was congested. Eyes were closed. Mouth was closed. There was discharge from mouth and nose.

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(ii) There was a bruise 3” wide encircling neck. (iii) Bleeding was present from her vagina.

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(iv) There was a lacerated wound extending from vaginal orifice to vaginal canal with blood clot.

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(v) Vaginal swab smeared was taken and smeared on slide and examined by Dr. Arun Kumar Singh which shows no spermatozoa either dead or alive in any field of high power lens of microscope. (vi) There was plenty of dead blood cells in almost all field of high power lens of microscope. (vii) There was few epithelial cells in certain field of high power lens of microscope.”

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36. The injuries, found on the said dead body, were,

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according to the doctor (PW. 8), ante mortem , in nature, injury

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No.1, i.e. bruise measuring 3” wide encircling neck, having been caused by flexible material and Injury No.2, a lacerated wound extending from vaginal orifice to vaginal canal with blood clot, was caused by forcible penetration into vagina.

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37. In the opinion of the doctor (PW 8), death was caused due to strangulation , the time since death being 6 to12 hours and Exhibit-4 is the post mortem report. In his crossexamination, PW 8 (the doctor) has reiterated that in his opinion, cause of death was strangulation and he has also clarified that in a case of strangulation, fracture of larynx, trachea, and hyode bone may not be always found.

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38. Nothing could be brought out from the evidence of doctor (PW 8) to show that his evidence, with regard to the injuries found on the said dead body, or his opinion, with regard to the cause of death, were incorrect or untrue. This apart, we, too, do not notice anything inherently incorrect or improbable in the evidence of doctor (PW 8).

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39. We have, therefore, no reason to disagree with the findings of the doctor (PW 8) or with his opinion as regards the cause of death.

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40 . Close on the heels of the evidence of PW 4 and PW 8 is the evidence of PW 9 (the doctor), who had examined the accused on the very day of the occurrence (i.e. 24.08.2013 at 2.30 P.M.). The findings of PW 9, on examining the accused, were as follows:

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“i. Til on dorsum of left foot.

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ii. Small cut injury in ring finger right hand size ½”x

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1/2'”

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iii. Small cut injury on ring finger left hand size ½” x ½”.

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iv. Abrasion over right clavicular region.

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v. Abrasion and swelling over penis.

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41. The injury report, which has been prepared on the basis of the findings of the doctor, upon his conducting examination of the accused, has been proved as Exhibit-6.

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42. From the above findings of PW 9 (the doctor), it clearly transpires that the accused, too, had some injuries on his person, the injuries being small cut injury on his ring finger (right hand) measuring ½” x ½”, a small cut injury on his ring finger (left hand) measuring ½”x ½”, an abrasion over his right clavicular region and also abrasion and swelling on his penis. These injuries are ex facie indicative of the accused having struggled with some one, who was resisting. No explanation has been offered by the accused as to why the injuries aforementioned had found on his person including penis nor is there any explanation discernible, in this regard, from the evidence on record.

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43. Situated thus, we are clearly of the view that N.K. was subjected to forcible sexual intercourse and put to death by strangulating her. We are also clearly of the view, in the light of the unshaken evidence of PW 4, that it was the accused-appellant, who had subjected N.K. to sexual intercourse and killed her. The injuries, which were found on the person of the accused-appellant, on the very day of the occurrence, at about 2.30 P.M., too, speak

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loud and clear that the injuries aforementioned had been caused on the person of the accused-appellant, because of the resistance, which had been offered by the said deceased.

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44. In order to exclude any possibility of the accused having been falsely implicated, it is imperative that the other evidence on record be also taken into account, more particularly, when it is one of the defences of the accused-appellant that the father of deceased N.K. had litigation with the father of the accused-appellant and it was for this reason that the accusedappellant has been falsely implicated. In order to, however, probabalise this defence, there is no evidence whatsoever even remotely showing or indicating that the accused-appellant had been falsely implicated by the father of the said deceased and other members of his family.

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45. The above discussion of the evidence on record brings us to the evidence of PW 2, father of the said deceased, whose evidence is that on 24.08.2013, at about 7.00 A.M., he was at his house, along with his wife (PW 1), his brother (PW 5) and his sister-in-law (Malti).

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46. PW 2 has deposed that his niece, R.K. (PW 4) came running and informed them that when she (PW 4) and N.K. (since deceased) were going to wash their hands after clearing their bowels, accused Hemlal Sah caught hold of N.K. , threw her on the ground and started committing rape on her and when N.K. was crying, while being subjected to rape, accused tied her dupatta

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around her neck, throttled her to death and threw her into bushes, whereupon all of them went running to the paddy field and saw the accused running away and they also found N.K. lying dead with her paijama (trouser) untied and her thigh having blood stains. PW 2 has also deposed that they brought N.K’s dead body to their house, police came there and he submitted an application to the police, which is Exhibit-1 (i.e. Fardbeyan ) and a Sub-inspector prepared a report, which is Exhibit-2, the report being inquest report .

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47. Broadly in tune with the evidence of PW 2, his brother (PW 5) has deposed that on the day of the occurrence (i.e. 24.08.2013), while he was in his house, his daughter R.K. (PW 4) and N.K. (since deceased) had gone to answer natures call, R.K. came back to the house and told them that Hemlal Sah was hiding in the nearby field, where she (PW 4) and N.K. (since deceased) had gone to answer the nature‟s call, Hemlal Sah caught hold of N.K. and subjected her to rape and when N.K. was shouting, accused threatened to kill her. It is in the evidence of PW 5 that on hearing what his daughter (PW 4) has reported to them, they all went running to the field and saw accused Hemlal Sah running away and they also found N.K’s dead body with her paijama (trouser) untied and her dupatta found wrapped around her neck, whereupon the said dead body was carried home.

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48. Both PW 2 and PW 5 were cross-examined by the defence. We have carefully and cautiously gone through the cross-

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examination of these two witnesses by the defence; but we do not notice anything significant having been elicited to infer, far less hold, that the defence succeeded in shaking their evidence on any aspect. Thus, the evidence of PW 2 and PW 5, too, remained wholly unshaken on material aspects.

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49. Resultantly, therefore, when the evidence of PW 2 and P.W 5 are read, in the light of the evidence of PW 4, PW 8 and PW 9, it clearly emerges that N.K. , as has been described by PW 4, was subjected to forcible sexual intercourse by the accusedappellant and it was the accused-appellant, who had put to death N.K. by strangulating her.

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50. Coupled with the above, prosecution has also examined the investigating officer and the witnesses to the seizure list prepared in respect of the seizure of wearing apparels of the said deceased. Their evidence, too, remained substantially unshaken and we see no reason to disbelieve them.

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51. We may point out that though Suresh Yadav, who was a witness to the inquest report, has not been examined, his non-examination cannot be taken to have caused prejudice to the appellant inasmuch as the evidence on record clearly supports the conclusion, which we have reached above.

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52. We may also point out that though it is true that the evidence on record does not answer as to how the police happened to reach the house of informant, namely, PW 2, father of the said deceased, the fact remains that the evidence, as has been

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discussed above, clearly reveals that the name of the accusedappellant had surfaced immediately after the occurrence and he had been seen, according to the unshaken evidence on record, running away from the place of occurrence with injuries on his own person, which were found, on his medical examination, by PW 9 (doctor).

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53. What crystallizes from the above discussion is that the prosecution adduced sufficient convincing, credible and clinching evidence proving, beyond reasonable doubt, that the accused-appellant had committed rape on the said deceased and put her intentionally to death by strangulating her. Considered in this light, we do not find that the conviction of the accusedappellant for commission of offences of rape and murder punishable under Section 376 and 302 of the Indian Penal Code respectively suffer from any infirmity, factual or legal.

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54. So far as the conviction of the accused-appellant under Sections 4, 6, 8 and 10 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as „the Act, 2012‟) are concerned, it needs to be noted that Section 4 of the Act, 2012, makes punishable penetrative sexual assault , penetrative sexual assault having been defined by Section 3 of the Act, 2012, which shows that a person is said to commit “ penetrative sexual assault ” if he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person.

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55. In the factual background of the present case,

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commission of offence, under Section 4 of the Act, 2012, has been clearly made out against the accused-appellant. We, however, note that in the face of the evidence on record, no case of conviction, under Section 6 of the Act, 2012, can be said to have been made out against the accused-appellant inasmuch as Section 6 of the Act, 2012, punishes aggravated penetrative sexual assault and a penetrative sexual assault (if the provisions, embodied in Section 5 of the Act, 2012 are kept clear in mind) would, as defined by Section 3 of the Act, 2012, becomes aggravated penetrative sexual assault if the penetrative sexual assault is, subject to certain conditions, committed, within the premise of a police station, by the member of armed force or security forces or a public servant or by a person entrusted by management of jail or its staff or entrusted with the management or staff of a hospital or management or staff of an educational institution or religious institution, or when the penetrative assault is by a gang.

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56. In the present case, the ingredients of Section 5 of the Act, 2012, which we have discussed above, are wholly absent and, in such circumstances, the conviction of the accusedappellant, under Section 6 of the Act, 2012, cannot be sustained.

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57. So far as punishment of the accused-appellant, under Section 8 of the Act, 2012, is concerned, it is required to be pointed out that Section 8 of the Act, 2012, punishes an act of sexual assault, the term sexual assault having been defined by Section 7 thus:

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“7. Sexual assault.-Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such persons or any other person, or does any other Act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”

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58. In the case at hand, when the evidence on record eloquently speaks that the accused-appellant did touch the vagina and other private parts of the body of the said deceased, commission of offence of sexual assault is, undoubtedly, made out against the accused-appellant and his act was, therefore, punishable under Section 8 of the Act, 2012.

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59. However, so far as the punishment, imposed on the accused-appellant, under Section 10 of the Act, 2012, is concerned, it may be mentioned that Section 10 can be taken resort to if an offence of aggravated sexual assault is made out against a person as defined by Section 9 of the Act, 2012.

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60 . Aggravated sexual assault , according to Section 9 , is committed , admittedly, when the ingredients of Section 9 are satisfied.

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61. In the case at hand, when the accused-appellant was not a police officer or a member of the armed forces or security forces, when he was not a public servant or when he was not entrusted with the management and was not staff of a jail nor was

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he entrusted with management or staff of a hospital or responsible for management or worked as staff of an education institution or religious institution, he could not have been held to have committed an offence under Section 9 of the Act, 2012, and without an offence having been committed under Section 9, punishing a person, such as, the accused-appellant, under Section 10 of the Act, 2012, does not arise. Viewed from this angle, the conviction of the accusedappellant, under Sections 6 and 10 of the Act, 2012, cannot, in the face of the evidence on record, be sustained, must be interfered with and set aside. However, his conviction, under Sections 4 and 8 of the Act, 2012, are, in the light of the evidence on record, just, fair and valid.

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62 . The question, now, which we are required to answer is as to whether in the facts and circumstances of the present case, the accused-appellant deserved to be awarded the extreme penalty of death? Our quest for an answer to this question necessitates a small survey on the development of the law, on this subject, in India.

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63. It may be pointed out that the march of human civilization has, undoubtedly, reduced the number of crimes in respect of which death penalty is, now, awarded. In the 18th century, there were about two hundred offences for which death penalty was the rule. Now, death penalty has altogether been abolished in the European Union. In the United States of America too, only crime of treason has till recently been left punishable with

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death. So also, in India, there are only a handful of offences under the Indian Penal Code, which call for capital punishment. In this context, one may, perhaps, safely say that the scenario in India, especially, the post-independence era, has not been facile. In the year 1949, Rajya Sabha mooted a proposal to altogether repeal death sentence.

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64. However, in the backdrop of the events of the partition of India, the then Home Minister made a forceful argument for retention of the capital punishment and, ultimately, the proposal was withdrawn. In the year 1962, a resolution was moved and passed by the Lok Sabha referring to the Law Commission of India, for its views, the desirability or otherwise of the retention of sentence of death.

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65. In their 35th report, rendered in the year 1967, Law Commission of India emphasised the risk of abolition of capital punishment by stating, inter alia , thus, "Experience of other countries could not be conclusive for India. Need for deterrent control provided by capital punishment is greater here in various classes of society. There is greater danger, in India, of increase in violent crimes if capital punishment is abandoned, particularly, in respect of professional criminals." The 35th report of the Law Commission, thus, favoured retention of death sentence, particularly, in respect of professional criminals. Approach to the criteria for imposition of death sentence noticeably changed with the coming into force of the Code of Criminal Procedure, 1973, on 1st of April, 1974. What was

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the position of law with regard to death sentence, before the Code of Criminal Procedure, 1973, came into force, can be summarized by referring to some decisive judicial pronouncements in this regard.

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66 . In Paras Ram v. State of Punjab (S.L.P. (Cri.) Nos. 698 and 678 of 1953, decided on October 9, 1973 ), the facts were that Paras Ram, who was a fanatic devotee of the Devi, used to hold satsangs at which bhajans were sung in praise of the Goddess. Paras Ram ceremonially beheaded his four year old boy at the crescendo of the morning bhajan . He was tried, convicted and sentenced to death for the murder. On his death sentence being confirmed by the High Court, Paras Ram filed a petition for grant of special leave to appeal to the Supreme Court under Article 136 of the Constitution of India. It was contended, inter alia , on behalf of Paras Ram, that the very monstrosity of the crime provided proof of his insanity sufficient to exculpate the offender under Section 84 of the Indian Penal Code and this ought to have been considered as a mitigating circumstance, while imposing on him the sentence of death.

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67. V. R. Krishna Iyer, J., speaking for the Bench, in Paras Ram (supra), refused to grant special leave and summarily dismissed the petition with these observations, "The poignantly pathological grip of macabre superstitions on some crude Indian minds in the shape of desire to do human and animal sacrifice, in defiance of the scientific ethos of our cultural heritage and the scientific impact of our technological century, shows up in crimes of

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primitive horror such as the one we are dealing with now, where a blood-curdling butchery of one's own beloved son was perpetrated, aided by other 'pious' criminals, to propitiate some blood thirsty deity. Secular India, speaking through the Court, must administer shock therapy to such anti-social 'piety,' when the manifestation is in terms of inhuman and criminal violence. When the disease is social, deterrence through Court sentence must, perforce, operate through the individual culprit coming up before Court. Social justice has many facets and Judges have a sensitive, secular and civilizing role in suppressing grievous injustice to humanist values by inflicting condition punishment on dangerous deviants.”

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68 . In Jagmohan Singh v. The State of U. P.,

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reported in (1973) 1 SCC 20 : (1973 Cri LJ 370 ), too, the Supreme Court expressed the view that for certain types of murders, death penalty alone can be considered adequate deterrent inasmuch as the Court observed thus, "A large number of murders is undoubtedly of the common type. But some at least are diabolical in conception and cruel in execution. In some others where the victim is a person of high standing in the country society is liable to be rocked to its very foundation. Such murders cannot be simply wished away by finding alibis in the social maladjustment of the murderer. Prevalence of such crimes speaks, in the opinion of many, for the inevitability of death penalty not only by way of deterrence but as a token of emphatic disapproval of the society."

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69 . Responding to the question whether life

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imprisonment was an adequate substitute for death penalty, the Court in Jagmohan (supra) noted, "In the context of our Criminal Law, which punishes murder, one cannot ignore the fact that life imprisonment works out in most cases to a dozen years of punishment and it may be seriously questioned whether that sole alternative will be an adequate substitute for the death penalty."

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70. In Ediga Anamma v. State of A. P. [(1974) 4 SCC 443 : (1974 Cri LJ 6830] , V. R. Krishna Iyer, J. speaking for the Bench, observed:

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"..............deterrence through threat of death may still be a promising strategy in some frightful areas of murderous crime." It was further observed in Ediga Anamma (supra) that "horrendous features of the crime and the hapless and helpless state of the victim steel the heart of law for the sterner sentence."

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71 . Before introduction of the Code of Criminal Procedure, 1973, the judicial scenario, in this country, thus, as we have already indicated above, reflected the necessity of retention of death penalty in some cases of murder for its deterrent effects and disfavoured abolition of death penalty altogether. We have already taken note of a few prominent cases in this regard.

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72. We may, now, pause here to point out that the Criminal Procedure Code, 1973, engrafted the hitherto latent legislative intent by providing in sub-section (3) of Section 354 thus, "(3) When the conviction is for an offence punishable with death, or, in

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the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence."

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73. What follows from a bare reading of the provisions of Section 354 (3) Cr.P.C. is that the law makers have introduced 'legislative limit' to the imposition of death penalty inasmuch as it has, now, been made mandatory for the Courts to assign 'special reasons' if a Court has to award capital punishment. 74. What constitute 'special reasons' for awarding of death penalty have, however, been a subject of divergent views, the prominent ones being the cases of Shiv Mohan Singh v. State (Delhi Admn.), [(1977) 2 SCC 238 : (1977 Cri LJ 767)]; Bishnu Deo Shaw v. State of W. B., [(1979) 3 SCC 714 : (1979 Cri LJ 841)] and Rajendra Prasad v. State of U. P., [(1979) 3 SCC 646 : (1979 Cri LJ 792) ].

¶230

75 . In Shiv Mohan Singh v. State (Delhi Admn.), reported in (1977) 2 SCC 238, too, V. R. Krishna Iyer, J. speaking for the Court, reiterated, by referring to the earlier judgment in Ediga Anamma's case (supra), the necessity of retention of death penalty for its deterrent effects in these words, "In Ediga Anamma (AIR 1974 SC 799 : (1974) 4 SCC 443 : 1974 SCC (Cri) 479) this Court, while noticing the social and personal circumstances possessing an extenuating impact, has equally clearly highlighted thatin India under present conditions deterrence through death

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penalty may not be a time-barred punishment in some frightful area of barbarous murder."

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76 . Even in Charles Sobraj v. Supdt. Central Jail,

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Tihar, New Delhi, [(1978) 4 SCC 104 : (1978 Cri LJ 1534)] , V. R. Krishna Iyer, J. speaking for a 3-Judge Bench of the Supreme Court, reiterated that deterrence was one of the vital considerations of punishment.

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77. In the realm of death penalty in India, a visible change, somewhat suddenly, took place with the pronouncements of the decisions in Bishnu Deo Shaw (supra) and Rajendra Prasad (supra).

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78 . In Bishnu Deo Shaw (supra), the Supreme Court held that reformation and rehabilitation of the offender and not mere deterrence are, now, among the foremost objects of the administration of criminal justice. The Court observed to the effect that 'special reasons' must have a nexus with the personality of the offender as revealed by his age, character, antecedents and tractability of the offender to reform. In Rajendra Prasad (supra), Krishna Iyer, J. held that 'special reasons ', necessary for imposition of death sentence, must relate not to the 'crime' as such, but to the 'criminal' .

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79. In other words, the Supreme Court, in the two cases cited hereinbefore, took the view that 'special reasons' have to be reform-oriented. In the backdrop of the fact that the Code of Criminal Procedure, 1973, had been introduced with the intention

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of reforming the criminal justice system and aimed at rehabilitating the criminals rather than destroying or eliminating them, the Court took the view that 'special reasons ' cannot be any reason; rather, a Court, before awarding death penalty, must conclude that the convict is irredeemable.

¶242

80. Noticing the above shift in the position of law, which Rajendra Prasad (supra) sought to reflect, the Constitution Bench, in Bachan Singh v. State of Punjab, [(1980) 2 SCC 684 : (1980 Cri LJ 636) ], observed thus, "In Rajendra Prasad (1979) 3 SCC 646 : 1979 SCC (Cri) 749), however, the majority (of 2 :1) has completely reversed the view that had been taken in Ediga Anamma (AIR 1974 SC 799 : (1974) 4 SCC 443 : 1974 SCC (Cri) 479)regarding the application of Section 354(3) on this point.According to it, after the enactment of Section 354(3), 'murder most foul' is not the text. The shocking nature of the crime of the number of murders committed is also not the criterion. It was said that the focus has now completely shifted from the crime to the criminal. "Special reasons" necessary for imposing death penalty "must relate not to the crime as such but to the criminal."

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81 . From the above observations made in Bachan Singh (supra), it is clear that the Constitution Bench took note of the fact that according to the decision in Rajendra Prasad (supra), since after the enactment of Section 354(3), 'murder most foul' was no longer the test for imposing death penalty nor were the shocking nature of the crime or the number of murders committed. Essential

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criteria for imposition of death penalty and that the focus had, now, completely shifted from the crime to the criminal and " special reasons ", necessary for imposing death penalty, shall relate 'not to the crime as such, but to the criminal' .

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82. Disagreeing with the views so expressed in Rajendra Prasad (supra), the Constitution Bench, in Bachan Singh (supra), observed, in paragraph 201, thus, "201.With great respect, we find ourselves unable to agree to this enunciation, as we read Sections 354(3) and 235(2) and other related provisions of the Code of 1973, it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of "special reasons" in that context, the Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the fact and circumstances of the particular case. More often than not these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because 'style is the man.' In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate watertight compartments. In a sense, to kill is to be cruel and, therefore, all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the

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proportion of extreme depravity that "special reasons" can legitimately be said to exist. "

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(Emphasis is supplied) 83 . There was yet another shift in the position of law with regard to the imposition of death sentence, which Rajendra Prasad (supra) reflected, and it was observed, in Bachan Singh (supra), thus,

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“The death sentence was constitutionally permissible only if the security of the State and society, public order and the interest of the general public were threatened by the murder, which took place. Reacting to the law, so laid down in Rajendra Prasad (supra), the Apex Court, in Bachan Singh (supra), observed, in paragraph 204, thus, "204. In Rajendra Prasad (1979) 3 SCC 646 : 1979 SCC (Cri) 749), the majority said : "It is constitutionally permissible to swing a criminal out of corporeal existence only if the security of State and Society, public order and the interests of the general public compel that course as provided in Article 19(2) to (6)" .

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Our objection is only to the word " only ". While it may be conceded that a murder which directly threatens, or has an extreme potentiality to harm or endanger the security of State and Society, public order and the interests of the general public, may provide " special reasons " to justify the imposition of the extreme

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penalty on the person convicted of such a heinous murder, it is not possible to agree that imposition of death penalty or murderers who do not fall within this narrow category is constitutionally impermissible. We have discussed and held above that the impugned provisions in Section 302, Penal Code, being reasonable and in the general public interest, do not offend Article 19, or its 'ethos ; nor do they in any manner violate Articles 21 and 14. All the reasons given by us for upholding the validity of Section 302, Penal Code, fully apply to the case of Section 354(3), Code of Criminal Procedure, also. The same criticism applies to the view taken in Bishnu Deo Shaw v. State of W. B. ((1979) 3 SCC 714 : 1979 SCC (Cri) 817 ) which follows the dictum in Rajendra Prasad ((1979) 3 SCC 646 : 1979 SCC (Cri) 749 )."

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84 . Thus, Bachan Singh (supra), overruled the decisions in Bishnu Deo Shaw (supra) and Rejendra Prasad (supra) and categorically held that the law, as it stands, does not mandate that 'special reasons' must be reform-oriented only or that the death penalty can be imposed only when the security of the State or of the society is threatened or the public order and the interest of the general public are in jeopardy. The Court held, in Bachan Singh (supra), that any reason, which is just and adequate in the facts and circumstances of a given case, shall qualify as a 'special

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reason '.

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85. In short, one cannot, according to what the Court observed in Bachan Singh (supra), restrict imposition of death penalty only to cases, where the security of the State and the society, public order and the interest of the general public are threatened and/or that the 'special reason' for imposition of death penalty "must relate not to the crime as such, but to the criminal "; rather, the " special reasons " must pay, according to what Bachan Singh (supra) lays down, due regard both to the crime as well as criminal and what is the relative weight to be given to the aggravating and mitigating factors would really depend on the facts and circumstances of a given case for, many a times, the crime as well as the criminal may be intertwined and it may not be possible for the Court to separate the 'crime' from the 'criminal' or the 'criminal' from the 'crime'.

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86 . What, thus, follows from the above discussion is that by 'special reasons' ─ which Section 354(3) mandates the Courts to record before imposing the death penalty ─ may take into account both the crime as well as the criminal. In fact, in many cases, these two factors are closely interwoven and may have to be studied together in order to come to a finding as to whether the death penalty is warranted or not. The Court must, while scrutinizing the crime and the criminal, prepare a balance sheet of aggravating as well as mitigating circumstances. While computing the aggravating and mitigating circumstances, the Court shall have

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to look into the nature of the offence, the manner of its execution, the nature of planning, heinousness or otherwise of the crime, the impact of the crime on the society and the society's reactions thereto. The Court must also pay due regard to the circumstances of the offender including his personality as a whole, which would obviously include his age, character, antecedent, the situation in which the crime was committed, and, above all, the probability of his being reformed and rehabilitated. To put if differently, the criminal can be treated as a sick person and may be sub-divided into two groups. Those, who suffer from curable diseases and in respect of whom, society must make endeavour to cure, reform and rehabilitate. The second group of the sick persons may be those, who suffer from incurable disease and are immune to treatment. They are not only immune to treatment, but their very existence may be a grave danger to the community at large.

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87 . While considering the question of death sentence, what a Court has to understand is as to whether there is any judicial limitation to the imposition of death penalty and, if so, what is the extent of such limitation? The answer to this momentous question is not very far to seek. Made it clear, the Constitution Bench, in Bachan Singh (supra), that the Court would not venture to formulate rigid standards as regard the cases, which demand capital punishment. Further clarified the Supreme Court, in Bachan Singh (supra), that it is neither practicable nor desirable that the criteria of applying discretion by the Courts to sentence a

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guilty person to death be laid down exhaustively and in rigid standards. However, the broad criteria guiding the Courts in respect of imposition of death penalty were given shape in Bachan Singh (supra) by making it clear that the extreme penalty of death can be inflicted only in gravest cases of extreme culpability. Thus, the rule limiting the death penalty to "the murder most foul" is, now, christened 'in the rarest of rare cases'.

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88. In other words, the Supreme Court made it clear, in Bachan Singh (supra), that awarding of sentence of life imprisonment is the general rule now and that only special facts and circumstances of a given case may warrant awarding of capital punishment. It was held, in Bachan Singh (supra), that normal rule is that the offender shall be sentenced to imprisonment for life; but the Court may, when the circumstances of a given case so justify, depart from this normal rule and impose capital punishment. The Court, however, must justify the imposition of the harshest punishment of death by assigning 'special reasons'. It may not be out of place to reiterate here that 'special reasons' cannot remain confined to either crime or criminal; rather, the 'special reasons' may relate to the crime or to the criminal and, in many cases, the 'special reasons' may relate to the 'crime' as well as the 'criminal'. However, what was made clear and authoritatively pronounced, in Bachan Singh (supra) is that the death penalty cannot be imposed except 'in, the rarest of rare cases', when alternative option is 'unquestionably foreclosed' inasmuch as the Supreme Court in

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Bachan Singh (supra), observed thus, "a real and abiding concern for the dignity of human 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 alternatively option is unquestionably foreclosed."

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89 . In Machhi Singh v. State of Punjab, [1983 Cri LJ 1457] , the guidelines, emerging from Bachan Singh's case (supra), have been culled out as follows :-

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"(i) The extreme penalty of death need not be inflicted except to gravest cases of extreme culpability.

¶276

(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. 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.

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(iv) A balance sheet of aggravating and mitigating circumstances likes to be drawn up and in doing so the mitigating circumstances have to be accorded full

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weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised."

¶281

90 . In order to apply the guidelines aforementioned, following questions, observed the Supreme Court, in Machhi Singh (supra), may be asked and answered :-

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(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?

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(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 ?

¶284

91 . Further pointed out the Supreme Court, in Machhi Singh's case (supra), that in rarest of rare cases, when the collective conscience of the community is so shocked that it will expect the upholders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The Supreme Court, however, clarified, in Machhi Singh (supra), that the community may entertain such sentiment in the following circumstances:

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"(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation

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of the community.

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(2) When the murder is committed for a motive which evinces total depravity and meanness, e.g. murder by hired assassin for money or reward, or cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.

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(3) 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, or in a cases of 'bride burning' or '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.

¶291

(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality are committed. (5) When the victim of murder in an innocent child, or a helpless woman or old or infirm person or a person vis-avis whom the murder is in a dominating position, or a public figure generally loved and respected by the community.

¶292

If upon taking an overall global view of all the

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circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the Court would proceed to do so."

¶296

92 . In the light of the decisions, in Bachan Singh (supra) and Machhi Singh (supra), what can be safely concluded is that in every case in which the question of imposition of death penalty arises, 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 to impose death penalty is exercised. In order to apply these guidelines, the following questions may, inter alia, be asked and answered, namely, (a) is there something uncommon about the crime, which renders the sentence of imprisonment for the life inadequate and calls for a death sentence?; and (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 ?

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93 . The Supreme Court thus, in Machhi Singh (supra), crystallized the principle of 'rarest of rare cases' by limiting it to the gravest of grave murder and held that the extreme penalty of death should be imposed only in extreme cases. If the trial Court

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finds, but not otherwise, that the nature of the offence is heinous, the plan and design diabolical, execution is most brutal and there is little prospect of the offender reforming himself, the Court may impose death sentence. The Supreme Court, in Machhi Singh (supra), emphasized that death penalty must be imposed only when the life imprisonment, having regard to the relevant circumstances of the crime, appears to be an altogether inadequate punishment, and provided, and only provided, the option to sentence the convict to imprisonment for life cannot be consciously exercised having regard to the nature of the crime, all the relevant circumstances in which the crime was committed, prospect of the offender to reformation and rehabilitation. Where collective conscious of the community is so shocked that it will expect the upholders of judicial power centre to inflict death penalty, the Court must respond by awarding the extreme penalty of death provided, of course, that all other judicially settled relevant factors justify imposition of such a penalty.

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94. In Sangeet vs State of Haryana [(2013) 2 SCC 452] , the applicability of the ratio, laid down in the case of Machhi Singh (supra) and Bachan Singh (supra), has been discussed by the Supreme Court. After having analysed the cases of Jagmohan Singh v. State of U.P. [(1973) 1 SCC 20] , Swamy Shraddananda (2) v. State of Karnataka [(2008) 13 SCC 767], Aloke Nath Dutta v. State of West Bengal [(2007) 12 SCC 230] and Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra [(2009)

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6 SCC 498], the Supreme Court, in Sangeet’s case (supra), recorded its conclusions as follows:

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The broad result of our discussion is that a relook is needed at some conclusions that have been taken for granted and we need to continue the development of the law on the basis of experience gained over the years and views expressed in various decisions of this Court. To be more specific, we conclude:

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1. This Court has not endorsed the approach of aggravating and mitigating circumstances in Bachan Singh (supra). However, this approach has been adopted in several decisions. This needs a fresh look. In any event, there is little or no uniformity in the application of this approach.

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2. Aggravating circumstances relate to the crime while mitigating circumstances relate to the criminal. A balance sheet cannot be drawn up for comparing the two. The considerations for both are distinct and unrelated. The use of the mantra of aggravating and mitigating circumstances needs a review.

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3. In the sentencing process, both the crime and the criminal are equally important. We have, unfortunately, not taken the sentencing process as seriously as it should be with the result that in capital offences, it has

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become judge-centric sentencing rather than principled sentencing.

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4. The Constitution Bench of this Court has not encouraged standardization and categorization of crimes and even otherwise it is not possible to standardize and categorize all crimes.

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5. The grant of remissions is statutory. However, to prevent its arbitrary exercise, the Legislature has built in some procedural and substantive checks in the statute. These need to be faithfully enforced.

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6. Remission can be granted under Section 432 of the Code of Criminal Procedure in the case of a definite term of sentence. The power under this Section is available only for granting " additional" remission , that is, for a period over and above the remission granted or awarded to a convict under the Jail Manual or other statutory rules. If the term of sentence is indefinite (as in life imprisonment), the power under Section 432 of the Code of Criminal Procedure can certainly be exercised but not on the basis that life imprisonment is an arbitrary or notional figure of twenty years of imprisonment.

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7. Before actually exercising the power of remission under Section 432 of the Code of Criminal Procedure

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the appropriate Government must obtain the opinion (with reasons) of the presiding judge of the convicting or confirming Court. Remissions can, therefore, be given only on a case-by-case basis and not in a wholesale manner.

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95 . It is clear from the conclusions, arrived at in Sangeet’s case (supra), that subjectivity has been playing an important role in sentencing, particularly, while making an assessment of aggravating factors and mitigating factors.

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96 . In a later case of Shankar Kishanrao Khade vs State of Maharashtra [(2013) 5 SCC 546] , the Supreme Court, while going ahead with the observations made in Sangeet’s case (supra), analysed a large number of cases involving death penalty and culled out the following features :

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(a) Cases, where the death penalty has been converted to imprisonment for life: Some of the factors that have had an influence in commutation include the young age of the accused, the possibility of reforming and rehabilitating the accused, the accused had no prior criminal record, the accused was not likely to be a menace or threat or danger to society or the community, the crime was not premeditated and the case was one of circumstantial evidence.

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(b) Cases, where the death penalty has been confirmed: T he principal reasons for confirming death penalty

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have been cruel, diabolic, brutal, depraved and gruesome nature of the crime, the crime results in public abhorrence, shocks the judicial conscience or the conscience of society or the community, the reform or rehabilitation of the convict is not likely or that he would be a menace to society, the victims were defenseless, the crime was either unprovoked or that it was premeditated.

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97. Along with the aforesaid two broad analysis, the Supreme Court also considered why necessity has arisen for a fixed term sentence or consecutive sentences instead of awarding death penalty.

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98. For instance, in Subhash Chander v. Krishan Lal, [(2001) 4 SCC 458], it was held that the convict shall remain in prison “ for the rest of his life ”. He shall not be entitled to any commutation or premature release under Section 401 of the Code of Criminal Procedure, Prisoners Act, Jail Manual or any other Statute and the rules made for the purposes of grant of commutation and remissions.

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In Mohd. Munna v. Union of India, [(2005) 7 SCC 417], the convict had undergone 21 years of incarceration, yet the Supreme Court held that the convict was not entitled to release as a matter of course, but was required to serve out his sentence till the remainder of his life subject to remissions by the appropriate authority or State Government.

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100. So far as cases of consecutive sentence are

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concerned, the following may be taken note of:

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(i) Ravindra Trimbak Chouthmal v. State of Maharashtra, [(1996) 4 SCC 148], is, perhaps, among the earliest cases, where consecutive sentences were awarded. This was not a case of rape and murder but a case of causing dowry death of pregnant wife. It was held in Ravindra’s case (supra) that it was not the " rarest of rare " cases " because dowry death has ceased to belong to that species of killing ." The death sentence was, therefore, not upheld. Since the accused had attempted to cause disappearance of the evidence by severing the head and cutting the body into nine pieces, the Supreme Court directed that he should undergo the sentence for such brutal crime after serving out his life sentence, it was held:

¶334

“We have given considered thought to the question and we have not been able to place the case in that category which could be regarded as the " rarest of the rare " type. This is so because dowry death has ceased to belong to that species of killing. The increasing number of dowry deaths would bear this. To halt the rising graph, we, at one point, thought to maintain the sentence; but we entertain doubt about the deterrent effect of a death penalty. We, therefore, resist ourselves from upholding the death sentence, much though we would have desired annihilation of a despicable character like the Appellant before us. We, therefore, commute the sentence of death to one of rigorous imprisonment for life imprisonment.

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But then, it is a fit case, according to us, where, for the offence under Sections 201/34, the sentence awarded, which is rigorous imprisonment for seven years being the maximum for a case of the present type, should be sustained, in view of what had been done to cause disappearance of the evidence relating to the commission of murder -- the atrocious way in which the head was severed and the body was cut in nine pieces. These cry for maximum sentence. Not only this, the sentence has to run consecutively, and not concurrently, to show our strong disapproval of the loathsome, revolting and dreaded device adopted to cause disappearance of the dead body. To these sentences, we do not, however, desire to add those awarded for offences under Sections 316 and 498-A/34, as killing of the child in the womb was not separately intended, and Section 498-A offence ceases to be of significance and importance in view of the murder of Vijaya.

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The result is that the appeal stands allowed to the extent that the sentence of death is converted to one of imprisonment for life. But then, the sentence of seven years' rigorous imprisonment for the offence under Sections 201/34 Indian Penal Code would start running after the life imprisonment has run its course as per law.”

¶339

Since imprisonment for life means that the convict shall remain in jail till the end of his normal life, what the decision, in Ravindra’s case (supra), mandates is that if the convict is to be

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earlier released by the competent authority for any reason, in accordance with procedure established by law, then, the second sentence shall commence immediately thereafter.

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(ii) Ronny v. State of Maharashtra, [(1998) 3 SCC

¶344

625] , is also among the earliest cases in the recent past, where consecutive sentences were awarded. The three accused, aged about 35 years (two of them) and 25/27 years, had committed three murders and a gang rape. The Supreme Court converted the death sentence of all three to imprisonment for life, because it was not possible to identify, whose case would fall in the category of " rarest of rare " cases. However, after awarding a sentence of life imprisonment, the Supreme Court directed that they would all undergo punishment for the offence punishable under Section 376(2)(g) of the Indian Penal Code consecutively after serving the sentences for other offences. It was held, “ Considering the cumulative effect of all the factors, it cannot be said that the offences were committed under the influence of extreme mental or emotional disturbance for the whole thing was done in a pre-planned way; having regard to the nature of offences and circumstances in which they were committed, it is not possible for the Court to predict that the Appellant would not commit criminal act of violence or would not be a threat to the society. A-1 is 35 years' old, A-2 is 35 years' old and A-3 is 25 (sic 27) years' old. The Appellants cannot be said to be too young or too old. The possibility of reform and rehabilitation, however, cannot be ruled out. From the facts and circumstances, it is

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not possible to predict as to who among the three played which part. It may be that the role of one has been more culpable in degree than that of the others and vice versa. Where in a case like this it is not possible to say as to whose case falls within the "rarest of the rare" cases, it would serve the ends of justice if the capital punishment is commuted into life imprisonment. Accordingly, we modify the sentence awarded by the courts below under Section 302 read with Section 34 from death to life imprisonment. The sentences for the offences for which the Appellants are convicted, except under Section 376(2)(g) Indian Penal Code, shall run concurrently; they shall serve sentence under Section 376(2)(g) Indian Penal Code consecutively, after serving sentence for the other offences.”

¶348

(iii) In Sandesh v. State of Maharashtra, [(2013) 2 SCC 479] , the Supreme Court converted death penalty, awarded to the accused, to imprisonment for life, following the offences of rape of a pregnant lady, attempted murder and the murder of her mother-in-law to imprisonment for life with a further direction that all the sentences were to run consecutively.

¶349

(iv) In Sanaullah Khan v. State of Bihar, the death sentence, awarded to the accused for the murder of three persons, was converted by the Supreme Court to imprisonment for life for each of the three murders and, further, the sentences were directed to run consecutively.

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101. The decisions, cited above, clearly suggest that the Supreme Court has been seriously reconsidering, though not in

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a systemic manner, awarding life sentence as an alternative to death penalty by applying (though not necessarily mentioning) the " unquestionably foreclosed " formula laid down in Bachan Singh (supra).

¶354

102. Pointing out, however, that undue sympathy to impose inadequate sentence would do harm to the justice delivery system by undermining the public confidence in the efficacy of law, the Supreme Court, in Sevaka Perumal v. State of T. N., reported in (1991) 3 SCC 471 : (1991 Cri LJ 1845), has, however, held that it is the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.

¶355

103 . In Dhananjoy Chatterjee v. State of W.B., reported in (1994) 2 SCC 220 : (1995 AIR SCW 510) , the Supreme Court has observed that a shockingly large number of criminals go unpunished thereby increasingly encouraging the criminals and, in the ultimate making, justice suffer by weakening the system's creditability. The imposition of appropriate punishment, points out the Supreme Court, in Dhananjoy Chatterjee (supra), is the manner in which the Court responds to the society's cry for justice against the criminal. Justice, according to the Supreme Court, in Dhananjoy Chatterjee (supra), demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime and that the Court must not only keep in view the rights of the criminal, but also the

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rights of the victim of the crime and the society at large, while considering the imposition of appropriate punishment.

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104. In the case at hand, the accused-appellant was aged about 25 years at the time of occurrence, there is no evidence to show that he was involved in any criminal case in the past and, above all, there was nothing on record to show that the accusedappellant, if left alive, would be a menace to the society in future. No doubt, the offences committed are grave, but the present one can, by no means, be regarded as a „rarest of rate cases‟, warranting imposition of death penalty. Considered thus, it becomes clear that the nature of the facts of the present case brings the present case closer to the principles indicated in Surendra Pal Shivbalakpal v. State of Gujarat, [(2005) 3 SCC 127], wherein the Supreme Court did not find, in the facts and attending circumstances of the present case, death penalty as the lone punishment imposable upon the accused-appellant. Having taken into account the facts of the present case and the law relevant thereto, we are clearly of the view that no case for imposition of capital punishment has been made out and, hence, the sentence of death, passed against the accusedappellant, cannot be sustained.

¶360

105. In the result and for the reasons discussed above, this appeal partly succeeds. While we maintain the conviction of the accused-appellant under Sections 376 and 302 of the Indian Penal Code and also his conviction under Sections 4 and 8 of the Act, 2012, we set aside his conviction under Sections 6 and 10 of the

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Act, 2012.

¶364

106. Considering the fact that the learned trial Court has not passed any sentence against the appellant except for the offence of murder punishable by Section 302 of the Indian penal Code and the State has not preferred any appeal seeking passing of appropriate order/orders with regard to the sentences imposable on the appellant, we do not, in the facts and attending circumstances of the present case, feel inclined to impose any further or separate sentence on the appellant for the offences under Section 376 of the Indian Penal Code and Sections 4 and 8 of the Act, 2012, which he has been found guilty of and stands convicted inasmuch as the sentence, which we propose to pass, would subserve the ends of justice, particularly, because the sentences, which could have been passed against the appellant do not, in the fact situation of the present case, need to be made consecutive .

¶365

107. Having given our anxious consideration to the facts of the present case, we sentence the accused-appellant, for his conviction under Section 302 of the Indian Penal Code, to suffer imprisonment of life and pay a fine of Rs.5,000/- (Five thousand) and, in default of payment of fine, suffer rigorous imprisonment for a period of six months. We, however, make it clear that if the fine is realized, the same shall be paid to the parents of the said deceased.

¶366

108. With the above observations and directions, this appeal shall stand disposed of.

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109. Send back the Lower Court Records to the learned

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Court below along with a copy of this judgment.

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(I. A. Ansari, J.)
(Samarendra Pratap Singh, J.)
Mkr/Uday/
A.F.R.
|| U
|| T

Hem Lal Sah v. The State Of Bihar

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Hem Lal Sah v. The State Of Bihar

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