Special Reasons within the Meaning of Section 354(3) of the Cr.PC to Impose Death Penalty [SC JUDGMENT]
Penal
Code, 1860 – Ss. 302, 363, 366 & 376(2)(i) -
So far as the present case is concerned, it solely rests on circumstantial evidence. It is the specific case of the appellant that he was denied the proper legal assistance in the matter and he is a manhole worker. The appellant was aged about 50 years. Further, in this case there is no finding recorded by the courts below to the effect that there is no possibility of reformation of the appellant. We are of the view that the reasons assigned by the trial court as confirmed by the High Court, do not constitute special reasons within the meaning of Section 354(3) of the Cr.PC to impose death penalty on the accused. Taking into account the evidence on record and the totality of the circumstances of the case, and by applying the test on the touchstone of case law discussed above, we are of the view that the case on hand will not fall within the ‘rarest of rare’ cases. In that view of the matter, we are of the view that the death sentence imposed by the trial court, as confirmed by the High Court, requires modification. Accordingly, this appeal is allowed in part; while confirming the conviction, recorded by the trial court, as confirmed by the appellate court, we modify the sentence to that of life imprisonment with actual period of 25 years, without any benefit of remission. It is further made clear that sentences imposed for all offences shall run concurrently.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
[S.A. Bobde] [L. Nageswara Rao] [R. Subhash Reddy] JJ.
January 18, 2019
CRIMINAL APPEAL NO. 94 OF 2019
[Arising out of S.L.P. (Crl.) No.7645 of 2013]
Nand Kishore ... Appellant
Versus
State of Madhya Pradesh ... Respondent
J U D G M E N T
R. Subhash Reddy, J.
1. Leave granted.
2. This criminal appeal is filed by the appellant in Criminal
Appeal No.798 of 2013 filed before the High court of Madhya Pradesh at
Jabalpur, aggrieved by the judgment dated 25.06.2013. By the aforesaid
judgment, while dismissing the appeal preferred by the appellant herein
convicted for the offence under Sections 302, 363, 366 and 376(2)(i) of the
Indian Penal Code (IPC), the High Court answered the reference in affirmative
by confirming the death sentence awarded to the appellant.
3. Necessary facts, in brief, giving rise to this appeal are that
the deceased, a minor girl aged about 8 years, had gone to attend the ‘Mela’
along with her younger brother namely Chhunu (PW-4) on 03.02.2013. It is the
case of the prosecution that the appellant who is aged about 50 years then,
took away the deceased from the ‘Mela’ and committed rape and murdered her.
Narendra (PW-2) informed the police stating that his daughter, who had gone to
attend the ‘Mela’, has not returned home. Upon such complaint, case was
registered and investigation commenced. In the course of investigation one Amit
Mourya (PW-1) informed the Investigating Officer that when he was coming to his
shop from residence, he saw a dog running away with a leg of a child in its
mouth and on being chased, the dog dropped the leg and ran away. Further, it
was the case of the prosecution that in the process of investigation,
Investigating Officer found a headless body of the deceased in the bushes near
the ‘Dushera Maidan’, Bhopal. It is alleged that the left leg of the deceased
was found at a distance of 100 ft. and both legs were fractured. Further, it is
noticed that there were severe injuries on the private parts
of the deceased inflicted by the appellant due to which the intestine had come
out. During the process of investigation the statement of the appellant was
recorded under Ex.P8 and the blood stained cloths and articles he used for the
offence were recovered from his house. After completing the investigation, the
appellant was chargesheeted for the offence punishable under Sections 363, 366,
376(2)(i) and 302 of the IPC and Sections 5 and 6 of Protection of Children
from Sexual Offences Act, 2012.
4. The trial court, after appreciation of the evidence on record,
which is mainly circumstantial, came to the conclusion that the appellant has
committed rape on the minor girl and murdered her and further, by recording a
finding that the crime committed by the appellant is heinous and barbaric,
falls within the category of ‘rarest of rare’ cases, imposed the death
sentence. The appellant is also convicted and sentenced for the offence
punishable under Sections 363, 366, 376(2)(i) of the IPC. In view of the award
of death sentence, the trial court has made a reference to the High Court for
confirmation, as contemplated under Section 366 of the Code of Criminal Procedure
(Cr.PC). Questioning the conviction recorded and sentence imposed, the accused
has filed appeal in Criminal Appeal No.798 of 2013 and the High Court has
disposed of, by common judgment, Criminal Reference No.05/2013 and Criminal
Appeal No.798/2013. The High Court, by judgment dated 25.06.2013, while
dismissing the appeal of the appellant, has affirmed the reference confirming
the death sentence awarded to the appellant.
5. We have heard learned senior counsel for the appellant, Sri
Sanjay R. Hegde and also learned counsel appearing for the State Ms. Swarupama
Chaturvedi.
6. In this appeal, it is contended by learned counsel for the
appellant that though there is no acceptable and convincing evidence to prove
the guilt of the accused beyond reasonable doubt, the appellant is convicted by
the trial court based on the circumstantial evidence which is not enough to record
guilt of the accused. It is submitted that from the evidence on record, the
prosecution has also failed to prove concept of ‘last seen’. It is further
submitted that the trial court as well as High Court has committed error in
imposing the death sentence upon the appellant without
examining mitigating circumstances. It is submitted that the sentence imposed
is illegal and contrary to the legislative mandate under Sections 235(2) and
354(3) of the Cr.PC. It is contended that without examining relevant considerations
of legislative policy discernible from Sections 354(3) and 235(2) of the Cr.PC,
only by recording a finding that the incident is barbaric, the trial court and
the appellate court have recorded that the case of the prosecution falls under
‘rarest of rare’ cases and imposed death sentence. It is submitted that all the
mitigating circumstances which exist were to be considered. The penalty of
death imposed is required to be modified.
7. To support his contention, learned counsel has referred to certain
cases decided by this Court in identical circumstances. It is specifically
submitted that relevant aspects, like, the socio-economic background of the
appellant, lack of criminal antecedents, possiblity of reform, are not
considered. It is also brought to the notice of this Court that the local Bar
Association, Bhopal had refused to represent the appellant, as such, the
appellant was not represented by counsel before the trial court
until the date of the framing of the charge. On request made by the appellant
on the day of framing of charge, for grant of legal aid, trial court has
requested one Mr. Katyayni to appear and the same day charges were framed and
the trial was proceeded with.
8. On the other hand, learned counsel appearing for the State has
submitted that though the appellant was convicted based on circumstantial
evidence, but the evidence adduced is sufficient and consistent. It is
submitted that PW-4 had identified the accused as the person with whom the
deceased was last seen and PW-4 also identified the accused in the Test
Identification Parade. Further, PW-7 has categorically stated in his deposition
that he saw the accused in the company of minor girl wearing yellow frock at 9
p.m. on 03.02.2013. It is submitted that the said oral evidence if considered
with reference to report of the forensic expert and medical evidence on record,
there is absolutely no infirmity in the findings recorded by the trial court
convicting the appellant for offences charged. It is stated, having regard to the
nature of the crime, that it is heinous and barbaric, it falls within the
category of ‘rarest of rare’ cases. It is submitted that
having regard to reasons recorded by the trial court, as confirmed by the High
Court, there are no grounds to interfere with the conviction recorded and
sentence imposed on the appellant.
9. Having heard the learned counsel for the parties, we have
perused the judgment of the trial court and High Court and other material
placed on record.
10. So far as the conviction is concerned, we are satisfied with the
findings recorded by the trial court which are based on the appreciation of
oral and documentary evidence on record.
11. Though the case totally rests on circumstantial evidence, it is
to be noticed that PW-4 is the brother of the deceased who has accompanied the
deceased to ‘Mela’ on the fateful day, i.e., on 03.02.2013. He has identified
the accused in the Test Identification Parade and further he has categorically
stated that the appellant took away the deceased from the ‘Mela’. Further, PW-1
– Amit Mourya, has deposed that when he was coming from his shop to the
residence, he saw a dog running away with a leg of a child in its mouth and on
being chased it dropped the leg.
Further investigation
revealed detection of headless body of the deceased in the bushes. Further,
PW-7 Abid Qureshi, has also stated that he had seen the appellant on 03.02.2013
at 9:00 p.m. with a girl wearing yellow frock. By applying the ‘last seen’
theory to the facts of the case and further considering the forensic and
medical evidence on record, trial court has rightly recorded guilt of the
accused for the offences alleged. Even the High Court, referring to the
relevant evidence on record, has rightly confirmed the conviction of the
appellant for the charges levelled against him.
12. In this appeal, learned counsel for appellant focussed on death
penality imposed and submitted that the relevant aspects are not considered
before recording a finding that the case falls in the category of ‘rarest of rare’
cases, so as to impose the death penalty. It is the specific case of the
appellant that several relevant aspects which are required to be considered
before recording a finding of ‘rarest of rare’ cases have escaped the attention
by the trial court as well as by the High Court. It is specifically argued that
special reasons, as required under Section
354(3) of the Cr.PC are not recorded; reasons recorded to impose death
sentence, cannot be construed as special reasons within the meaning of Section
354(3) of the Cr.PC. It is further submitted that for the persons convicted of
murder, life imprisonment is a rule and death sentence is an exception, as
observed by a Constitution Bench of this Court in case of Bachan Singh v. State
of Punjab, (1980)
2 SCC 684
and further, it is
submitted, that contrary to the ratio laid down in the aforesaid judgment, the
focus was on the crime alone though it is the duty of the courts to pay heed to
the circumstances of the crime as well as the criminal. Further, the mitigating
circumstances which existed and are to be given liberal and expansive
interpretation, are omitted from the consideration. It is further submitted
that the sentence of death is to be imposed only in cases when the option of
life imprisonment is unquestionably foreclosed.
13. A useful reference can be made to the judgment in this regard in
the case of Swamy Shradhananda(2) v. State of Karnataka, (2008) 13 SCC 767. In the aforesaid judgment, while confirming the
conviction for offence under Section 302 of IPC, this Court, having regard to
the facts and circumstances of the case and considering the evidence on record,
has substituted the death sentence by imposing imprisonment for life with a
specific direction that he shall not be released from the prison till the rest
of his life. In para 92, this Court has observed as under :
“92. The matter may be looked at from a slightly different
angle. The issue of sentencing has two aspects. A sentence may be excessive and
unduly harsh or it may be highly disproportionately inadequate. When an appellant comes to this Court carrying a
death sentence awarded by the trial court and confirmed by the High Court, this
Court may find, as in the present appeal, that the case just falls short of the
rarest of the rare category and may feel somewhat reluctant in endorsing the
death sentence. But at the same time, having regard to the nature of the crime,
the Court may strongly feel that a sentence of life imprisonment subject to
remission normally works out to a term of 14 years would be grossly
disproportionate and inadequate. What then should the Court do? If the Court’s
option is limited only to two punishments, one a sentence of imprisonment, for
all intents and purposes, of not more than 14 years and the other death, the Court
may feel tempted and find itself nudged into endorsing the death penalty. Such
a course would indeed be disastrous. A far more just, reasonable and proper
course would be to expand the options and to take over what, as a matter of
fact, lawfully belongs to the Court i.e. the vast hiatus between 14 years’
imprisonment and death. It needs to be emphasised that the Court would take recourse
to the expanded option primarily because in the facts of the case, the sentence
of 14 years’ imprisonment would amount to no punishment at all.”
In the case of Neel Kumar v. State of Haryana, (2012) 5 SCC 766 which is a case of rape and murder of a minor,
while confirming the conviction, this Court, on the facts and circumstances of
the case and having regard to the evidence on record, has modified the death
sentence with award of life imprisonment and directed that the accused must
serve a minimum of 30 years of jail without remission. Paragraphs 37, 38 and 39
of the said judgment read as under :
“37. A three-Judge Bench of this Court in Swamy Shraddananda
(2) v. State of Karnataka (2008)
13 SCC 767, considering the facts of the case, set aside the sentence of death
penalty and awarded the life imprisonment but further explained that in order
to serve the ends of justice, the appellant therein would not be released from
prison till the end of his life.
38. Similarly, in Ramraj v. State of
Chhattisgarh (2010)
1 SCC 573, this Court while setting aside the death sentence made a direction
that the appellant therein would serve minimum period of 20 years including
remissions earned and would not be released on completion of 14 years’
imprisonment.
39. Thus, in the
facts and circumstances of the case, we set aside the death sentence and award
life imprisonment. The appellant must serve a minimum of 30 years in jail
without remissions, before consideration of his case for premature release.”
In the case of Selvam v. State, (2014)
12 SCC 274
which is a case involving
murder and rape of a child aged about 9 years, without interferring with the finding
of conviction, this Court, in the facts and circumstances of the case and
considering the evidence on record, imposed a sentence of 30 years in jail
without remission. In the case of Tattu Lodhi v. State of Madhya Pradesh, (2016) 9 SCC 675 in a case involving kidnapping of minor girl aged
about 7 years and attempt to rape and murder, in the facts of the case and the
evidence on record, death sentence was modified to imprisonment for life with a
direction not to release the accused from prison till he completes actual
period of 25 years of imprisonment. Further, in the case of Raj Kumar v. State of
Madhya Pradesh, (2014)
5 SCC 353
in similar circumstances,
this Court has modified death sentence and awarded life imprisonment and
directed the appellant therein to serve a minimum of 35 years in jail without
remission.
Further, in the case of Anil v. State of Maharashtra, (2014) 4 SCC 69 where in a case involving murder of a 10 year old
boy who was subjected to carnal intercourse, this Court has held as under :
36. The legislative policy is discernible from Section 235(2)
read with Section 354(3) CrPC, that when culpability assumes the proportions of
depravity, the Court has to give special reasons within the meaning of Section
354(3) for imposition of death sentence. A legislative policy is that when
special reasons do exist, as in the instant case, the Court has to discharge
its constitutional obligations and honour the legislative policy by awarding
appropriate sentence, that is, the will of the people. We are of the view that
incarceration for a further period of thirty years, without remission, in
addition to the sentence already undergone, will be an adequate punishment in
the facts and circumstances of the case, rather than death sentence. Ordered
accordingly.”
14. The learned counsel appearing for the State has placed reliance
on the judgment of this Court in the case Mukesh & Anr. v. State (NCT of Delhi)
& Ors., (2017)
6 SCC 1
[known as Nirbhaya case] in
support of her case and submitted that applying the ratio laid down in the
aforesaid judgment, the case falls in the ‘rarest of rare’ cases attracting
death penalty. With reference to above said arguments of learned counsel for
the State, it is to be noticed that the case of Mukesh (supra) is
distinguishable on the facts from the case on hand. It is to be noticed that Mukesh (supra) is a case of gang-rape and murder of the
victim and an attempt to murder of the male victim. It was the specific case of
the prosecution that the crimes were carried out pursuant to a conspiracy and
the accused were convicted under Section 120-B of the IPC apart from other
offences. Further, as a fact, it was found in the aforesaid case that the
accused-Mukesh had been involved in other criminal activity on the same night. Further,
it is also to be noticed that in the aforesaid case, there was a dying
declaration, eye witness to the incident etc. So far as the present case is
concerned, it solely rests on circumstantial evidence. It is the specific case
of the appellant that he was denied the proper legal assistance in the matter
and he is a manhole worker. The appellant was aged about 50 years. Further, in
this case there is no finding recorded by the courts below to the effect that
there is no possibility of reformation of the appellant. We are of the view
that the reasons assigned by the trial court as confirmed by the High Court, do
not constitute special reasons within the meaning of Section 354(3)
of the Cr.PC to impose death penalty on the accused. Taking into account the
evidence on record and the totality of the circumstances of the case, and by
applying the test on the touchstone of case law discussed above, we are of the
view that the case on hand will not fall within the ‘rarest of rare’ cases. In
that view of the matter, we are of the view that the death sentence imposed by
the trial court, as confirmed by the High Court, requires modification. Accordingly,
this appeal is allowed in part; while confirming the conviction, recorded by
the trial court, as confirmed by the appellate court, we modify the sentence to
that of life imprisonment with actual period of 25 years, without any benefit
of remission. It is further made clear that sentences imposed for all offences
shall run concurrently.