No Acts & Articles mentioned in this case
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1024 of 2017
Arising Out of PS. Case No.-19 Year-2016 Thana- MAHILA PS District- Aurangabad
======================================================
Azhar @ Md. Azhar, S/o Late Jilani, resident of Raja Nagar Road, P.S. -
Rafiganj, District - Aurangabad.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 843 of 2017
Arising Out of PS. Case No.-19 Year-2016 Thana- MAHILA PS District- Aurangabad
======================================================
1.Jalaluddin @ Jalalu @ Jamalu, S/o Late Md. Hussain;
2.Kamaluddin @ Kamalu, S/o Late Md. Hussain;
3.Jaibun Khatoon, W/o Md. Mokhtar;
4.Baby Khatoon, W/o Md. Zilani Marhum.
All are residents of Mohalla - Raja Nagar, P.S. - Rafiganj, District -
Aurangabad.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In both the Appeals)
For the Appellant/s: Ms. Meena Singh, Adv.
For the State : Mr. Abhimanyu Sharma, APP
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
2/36
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 20-06-2024
Both the appeals have been taken up together
and are being disposed off by this common judgment.
2. We have heard Ms. Meena Singh, the
learned Advocate for the appellants in both the appeals,
namely, Azhar @ Md. Azhar [Cr. Appeal (DB) No. 1024
of 2017] and Jalaluddin @ Jalalu @ Jamalu; Kamaluddin
@ Kamalu; Jaibun Khatoon & Baby Khatoon [Cr. Appeal
(DB) No. 843 of 2017].
3. The State has been represented by Mr.
Abhimanyu Sharma, the learned APP.
4. Appellant/Azhar @ Md. Azhar [Cr. Appeal
(DB) No. 1024 of 2017] has been convicted under
Sections 448, 354A, 326A, 307 and 302 of the I.P.C.
and Section 8 of the Protection of Children from Sexual
Offences Act, 2012 (hereinafter referred to as the
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
3/36
POCSO Act, 2012) vide judgment dated 23.06.2017
passed by the learned Additional Sessions Judge-I,
Aurangabad. By order dated 29.06.2017, he has been
sentenced to undergo imprisonment for the remainder of
his life for the offence under Section 302 of the I.P.C.
and to pay a fine of Rs. 25,000/- with no default clause.
However, no separate sentence has been imposed on
him for the offences under Sections 448, 354A, 326A
and 307 of the I.P.C. as also Section 8 of the POCSO
Act, 2012.
5. The other appellants in Cr. Appeal (DB)
No. 843 of 2017 vide judgment and order dated
23.06.2017 have been convicted under Sections 341,
323 and 504 of the I.P.C. and have been sentenced to
undergo S.I. for one month, to pay a fine of Rs. 5,00/-
each and in default of payment of fine, to further suffer
imprisonment for five days for the offence under Section
341 of the I.P.C.; to undergo S.I. for one year, to pay a
fine of Rs. 1,000/- each and in default of payment of
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
4/36
fine, to further undergo S.I. for one month for the
offence under Section 323 of the I.P.C. and to undergo
S.I. for a period of two years, to pay a fine of Rs.
1,000/- each and in default of payment of fine, to
further suffer S.I. for one month for the offence under
Section 504 of the I.P.C.
6. The sentences have been ordered to run
concurrently.
7. The victim/deceased died after 83 days of
the occurrence in Apollo Burns Hospital at Delhi. She
was 15 years of age at that time and because of the
unrequited advances towards her by appellant/Azhar @
Md. Azhar, he threw acid on her, leading to 40% burn
injuries and later complications, leading to septicemia
and her ultimate death. While rescuing her, the mother
of the deceased also received 40% scalding injuries.
One of her sisters also received minor injuries on her
cheeks.
8. The deceased (name has purposefully been
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
5/36
withheld) lodged the fardbeyan on 24.06.2016 at
Anugrah Narayan Magadh Medical College & Hospital,
Gaya in the Intensive Care Unit (I.C.U.), alleging that
appellant/Azhar, who resided in front of her house, had
been stalking her for the last several days. She had
complained about this to her mother, who chastised
appellant/Azhar. Later, appellant/Azhar openly
misbehaved with the victim/deceased and caught her
hands on the public road while she was coming back
home from tuition. The deceased extricated herself from
appellant/Azhar’s stranglehold and came back home and
narrated about the incident to her mother, who
communicated such fact to her father. Her father went
to the house of appellant/Azhar, but he too was ill-
treated by the mother of appellant/Azhar, namely, Baby
Khatoon and uncles of appellant/Azhar, namely,
Kamaluddin @ Kamalu and Jalaluddin @ Jalalu. With
the intervention of local residents, the accused persons
were pacified.
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
6/36
9. On 24.06.2016 at about 12 O’clock, while
the deceased was sitting in her house, appellant/Azhar
suddenly appeared and told her that he would not let her
live peacefully and threw acid on her face. Before she
could understand, her clothes started burning. One of
the sisters of the deceased threw water on her face and
her mother tried to douse the fire by wiping her face.
Within few seconds, she had blisters all over her body.
She had given such statement in presence of her
mother/Madina Parveen (P.W. 3).
10. On the basis of the afore-noted
fardbeyan statement of the victim/deceased, a case vide
Aurangabad (Mahila) P.S. Case No. 19 of 2016, dated
25.06.2016, was registered for the offences under
Sections 341, 323, 504, 354A, 307, 326A and 34 of the
I.P.C. and Section 8 of the POCSO Act, 2012. Later,
Section 302 I.P.C. was added vide order dated
22.02.2017, after the death of the victim.
11. All the appellants were charge-sheeted
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
7/36
and they faced Trial.
12. The Trial Court, after examining nine
witnesses on behalf of the prosecution and one on behalf
of the defense, convicted and sentenced the appellants
as aforesaid.
13. Out of the nine witnesses examined at the
Trial, P.Ws. 1, 2 and 9, namely, Roushni Parveen, Jeba
Parveen and Jasmin, are own sisters of the deceased,
whereas P.Ws. 3 and 4 (Madina Parveen and Kaushar
Kadiri) are the parents of the deceased. Shakuntala
Kumari and Ram Swaroop Rai (P.Ws. 5 and 7
respectively) are the two Investigating Officers. The
victim, while she was alive, was treated by Dr. Ajeet
Kumar Singh, who has been examined as P.W. 6. The
post-mortem examination on the dead-body of the
deceased was conducted by Dr. Shyam Kishore (P.W.
8).
14. The deceased was first examined on
24.06.2016 at Primary Health Centre, Rafiganj,
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
8/36
Aurangabad and Dr. Ajeet Kumar Singh (P.W. 6) found
that her full face had been burnt; eyes were closed and
there were burns on abdomen, both the thighs and
sexual organs as well. The nature of injuries was found
to be dangerous to life caused by chemical reaction.
15. For the gravity of the injuries suffered by
the victim/deceased, she was first referred to Anugrah
Narayan Magadh Medical College & Hospital, Gaya and
from there to Apollo Burns Hospital, Delhi.
16. On the same day, the mother of the
deceased (P.W. 3) was also examined by P.W. 6. She
had also suffered injuries between 30 to 40%,
apparently caused by chemical reaction of acid.
However, the nature of the injury on her was found to
be simple.
17. The deceased died on 15.09.2016.
18. The post-mortem was conducted on
17.09.2016. Approximately 12 ante-mortem, but
partially healed burn wounds were found on her body.
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
9/36
There were multiple confluencing wounds of various
sizes present over the forehead. The margins of such
wounds were healthy, but the base was found to be of
reddish colour and there were also presence of
granulation tissues. On examination of the brain
meninges and the cerebral vessels, it was found that pus
had spread all over the surface of the brains. There
were no particular injuries found on the abdomen and
spinal cord. The death was opined to have been caused
because of shock due to septicemia, which could be
possible in the alleged circumstances.
19. The post-mortem report by the AIIMS,
Delhi has been marked as Exhibit-10.
20. The three sisters, viz., P.Ws. 1, 2 and 9
have supported the prosecution case as being witnesses
to the occurrence. Similarly, the mother of the deceased
(P.W. 3) is also a witness to the occurrence.
21. Roushni Parveen (P.W. 1) had seen the
appellant/Azhar @ Md. Azhar pouring acid on the body
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
10/36
of the deceased. She has also recounted before the
Trial Court that a day before the occurrence,
appellant/Azhar had tried to tease the deceased and
when the parents of the deceased made a complaint to
the parents of appellant/Azhar, they were ill-treated,
abused and assaulted. A Panchayati also had been
convened. She had given her 164 Cr.P.C. statement
also, which is quite in tandem with what she had stated
before the Trial Court. She has further confirmed that
the victim/deceased was taken to Rafiganj Hospital,
Aurangabad and, thereafter, she was referred to Gaya
and then to Delhi, where she died on 15.09.2016 in
Apollo Burns Hospital.
22. The suggestion given to her that the
deceased was madly in love with appellant/Azhar @ Md.
Azhar and when she was prevented from meeting him,
she harmed herself by pouring kerosene oil on her, was
denied.
23. Similar statements have been made by
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
11/36
Jeba Parveen and Jasmin (P.Ws. 2 and 9 respectively).
24. Madina Parveen (P.W. 3), the mother of
the deceased, has given some extra information
regarding the manner in which the victim was taken to
local hospital with the help of neighbours, viz., Rizwan
and Imran, both of whom have not been examined and
her treatment at Gaya and Delhi thereafter. Same
suggestion was given to her also, i.e., of the deceased
harming herself because of the displeasure of her family
on her being in affair with appellant/Azhar, but the same
was vehemently denied.
25. The father of the deceased (P.W. 4) fairly
stated before the Trial Court that he was not present
and his house when appellant/Azhar had come and
poured acid on the deceased, but he knew about the
background facts and the later developments.
26. The first Investigator (P.W. 5), a lady
Police Officer, confirmed that the house of the appellants
is situated very near to the house of the deceased. She,
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
12/36
while inspecting the house where the occurrence had
taken place, made some seizures of incriminating articles
and she also recorded the statement of most of the
witnesses. The statement of the victim was recorded in
the I.C.U. of Anugrah Narayan Magadh Medical College
& Hospital, Gaya.
27. From a perusal of the evidence on record,
what comes to the fore is that appellant/Azhar, being the
neighbour of the deceased, had been making advances
to her, which was not returned by the deceased. The
deceased had made a complaint to her parents about an
incident which had taken place a day before the
occurrence. The parents of the deceased, in turn, had
accosted the family members of appellant/Azhar, but
they were manhandled. Convening of Panchayati to
settle the issue locally also did not bear any fruit. While
all this had happened, appellant/Azhar, with a sense of
revenge, went to the house of the deceased; poured acid
on her and ran away.
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
13/36
28. The question is whether he intended to
cause the death of the deceased?
29. There does not appear to be any evidence
of the appellant/Azhar harbouring intention to harm or
end the life of the deceased. However, he ought to have
known that his action of throwing acid on her body and
that also in quite a measure, would have proved fatal.
This definitely brings him within the mischief of Section
300 thirdly of the I.P.C., making him liable for her
death; regardless of the fact that the death took place
about 82 days of the occurrence at Delhi.
30. Septicemia was the direct cause of the
injuries suffered by the deceased and inflicted at the
hands of the appellant/Azhar. The Septicemia had
occurred because of pus cells having spread all over the
brain area. There was no other reason for septicemia
except excessive burn injuries of more than 40%.
31. We have also given our anxious
consideration to the admissibility of the fardbeyan given
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
14/36
by the deceased while she was alive. The deceased had
received 40% burn injuries and was in great pain. She
had blisters all over her body. Her eyes were also
closed.
32. However, since we have not found any
injury on her neck or internal portion of esophagus or
vocal cords, it cannot be doubted that she was in a
position to speak. She may not have anticipated that
she would die because of the injuries, but yet her
statement so recorded would be admissible under
Section 32(1) of the Indian Evidence Act, 1872, which
reads as hereunder:
32 (1) When it relates to
cause of death.- When the
statement is made by a person as to
the cause of his death, or as to any
of the circumstances of the
transaction which resulted in his
death, in cases in which the cause of
that person's death comes into
question.
Such statements are relevant
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
15/36
whether the person who made them
was or was not, at the time when
they were made, under expectation
of death, and whatever may be the
nature of the proceeding in which
the cause of his death comes into
question.
33. Clause (1) of Section 32 of the Indian
Evidence Act, 1872 provides that statements made by a
person as to the cause of his death, or as to any of the
circumstance of the transaction which resulted in his
death, in cases in which the cause of that person’s death
comes into question, are themselves relevant facts.
34. In the present case, the cause of death
of the deceased was a question to be decided and the
statements made by the witnesses as also the deceased
are clear circumstances of the transaction which resulted
in her death. Thus, bringing such statement of the
victim/deceased within the meaning of Section 32(1) of
the Indian Evidence Act, 1872.
35. There is a clear distinction between
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
16/36
principles governing the evaluation of a dying declaration
under the English Law and the Indian Law. Under the
English Law, credence and relevancy of a dying
declaration is only when the person making such
statement is in hopeless condition and expecting an
eminent death. So under the English Law for its
admissibility, the declaration should have been made
when in actual danger of death and the declarant should
have had full apprehension that his death would ensue.
However, under the Indian Law, the dying declaration is
relevant, whether the person who makes it was or was
not under expectation of death at the time of such
declaration.
36. In Pakala Narayana Swami Vs. King
Emperor; AIR 1939 PC 47, Lord Atkin had held that
circumstances of the transaction which resulted in the
death of the declarant will be admissible if such
circumstances have some proximate relation to the
actual occurrence. The test laid down by Lord Atkin has
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
17/36
been quoted in Sharad Birdhichand Sarda Vs. State of
Maharashtra; (1984) 4 SCC 116 and it was held that
Section 32 of the Evidence Act is an exception to the
rule of hearsay evidence and in view of peculiar
conditions in the Indian Society, it has widened the
sphere to avoid injustice.
37. The difference in the English Law and the
Indian Law has been reiterated in Rattan Singh Vs.
State of H.P.; (1997) 4 SCC 161, where it has been
held that even if the deceased was nowhere near
expectation of death, still her statement would become
admissible under Section 32(1) of the Evidence Act,
though not as a dying declaration as such, provided it
satisfies one of the two conditions set forth in this
section.
38. In Khushal Rao Vs. State of Bombay;
AIR 1958 SC 22, the Supreme Court had examined the
principles governing the acceptance of dying declaration.
After examining the relevant provisions of the Evidence
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
18/36
Act and various judicial pronouncements, the Supreme
Court laid down the following conclusions :-
(i) it cannot be laid down as an
absolute rule of law that a dying
declaration cannot form the sole
basis of conviction unless it is
corroborated;
(ii) each case must be
determined on its own facts, keeping
in view the circumstances in which
the dying declaration was made;
(iii) it cannot be laid down as a
general proposition that a dying
declaration is a weaker kind of
evidence than other pieces of
evidence;
(iv) a dying declaration stands
on the same footing as another
piece of evidence. It has to be
judged in the light of surrounding
circumstances and with reference to
the principles governing weighing of
evidence;
(v) a dying declaration which
has been recorded by a competent
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
19/36
Magistrate in the proper manner
stands on a much higher footing
than a dying declaration which
depends upon oral testimony which
may suffer from all the infirmities of
human memory and human
character;
(vi) in order to test the
reliability of a dying declaration, the
court has to keep in view various
circumstances including the condition
of the person concerned to make
such a statement; that it has been
made at the earliest opportunity and
was not the result of tutoring by
interested parties.
39. It would also be relevant to refer to
Paniben Vs. State of Gujarat; (1992) 2 SCC 474,
where the law with respect to dying declaration have
been summed up as follows:-
‘(i) There is neither rule of law
nor of prudence that dying
declaration cannot be acted upon
without corroboration. (See Munnu
Raja v. State of M.P. [(1976) 3 SCC
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
20/36
104 : 1976 SCC (Cri) 376]).
(ii) If the court is satisfied that
the dying declaration is true and
voluntary it can base conviction on
it, without corroboration. (See State
of U.P. v. Ram Sagar Yadav [(1985)
1 SCC 552 : 1985 SCC (Cri) 127]
and Ramawati Devi v. State of Bihar
[(1983) 1 SCC 211 : 1983 SCC
(Cri) 169]).
(iii) The court has to scrutinise
the dying declaration carefully and
must ensure that the declaration is
not the result of tutoring, prompting
or imagination. The deceased had an
opportunity to observe and identify
the assailants and was in a fit state
to make the declaration. (See K.
Ramachandra Reddy v. Public
Prosecutor [(1976) 3 SCC 618 :
1976 SCC (Cri) 473]).
(iv) Where dying declaration is
suspicious, it should not be acted
upon without corroborative evidence.
(See Rasheed Beg v. State of M.P.
[(1974) 4 SCC 264 : 1974 SCC
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
21/36
(Cri) 426]).
(v) Where the deceased was
unconscious and could never make
any dying declaration the evidence
with regard to it is to be rejected.
(See Kake Singh v. State of M.P.
[1981 Supp SCC 25 : 1981 SCC
(Cri) 645]).
(vi) A dying declaration which
suffers from infirmity cannot form
the basis of conviction. (See Ram
Manorath v. State of U.P. [(1981) 2
SCC 654 : 1981 SCC (Cri) 581]).
(vii) Merely because a dying
declaration does not contain the
details as to the occurrence, it is not
to be rejected. (See State of
Maharashtra v. Krishnamurti
Laxmipati Naidu [1980 Supp SCC
455 : 1981 SCC (Cri) 364]).
(viii) Equally, merely because it
is a brief statement, it is not to be
discarded. On the contrary, the
shortness of the statement itself
guarantees truth. (See Surajdeo
Ojha v. State of Bihar [1980 Supp
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
22/36
SCC 769 : 1979 SCC (Cri) 519]).
(ix) Normally the court in order
to satisfy whether deceased was in a
fit mental condition to make the
dying declaration look up to the
medical opinion. But where the
eyewitness said that the deceased
was in a fit and conscious state to
make the dying declaration, the
medical opinion cannot prevail. (See
Nanhau Ram v. State of M.P. [1988
Supp SCC 152 : 1988 SCC (Cri)
342]).
(x) Where the prosecution
version differs from the version as
given in the dying declaration, the
said declaration cannot be acted
upon. (See State of U.P. v. Madan
Mohan [(1989) 3 SCC 390 : 1989
SCC (Cri) 585]).
(xi) Where there are more than
one statement in the nature of dying
declaration, one first in point of time
must be preferred. Of course, if the
plurality of dying declaration could
be held to be trustworthy and
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
23/36
reliable, it has to be accepted. (See
Mohanlal Gangaram Gehani v. State
of Maharashtra [(1982) 1 SCC 700 :
1982 SCC (Cri) 334]).’
40. We have no doubt in our mind that the
victim was in a position to make such statement for the
reason of the statement being complete in itself, without
any embellishment and without there being such injuries
on her body which would have prevented her to make a
detailed statement. This is also obvious from the fact
that she survived for 82 days, though under great pain
and agony.
41. Thus for all practical purposes, the
fardbeyan of the deceased can be accepted without any
demur.
42. Similarly, we have found that four of the
family members of the deceased (three sisters and the
mother) have given absolutely truthful account of what
had happened. The truthfulness of their versions clearly
come to the fore as even the mother of the deceased
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
24/36
(P.W. 3) was hurt by chemical reaction of acid when the
deceased, in agony, caught her mother. One of her
sisters also, while throwing water on the face of the
deceased, suffered injuries on her cheeks by acid. This
clearly demonstrates that the intention of
appellant/Azhar was to damage and cause harm to the
deceased to the maximum possible extent.
43. From the injuries suffered by the
deceased as also P.W. 3, it further appears that in good
measure and quantity, the acid was thrown on the body
of the deceased.
44. However, we have not found anything in
the entire records which would justify the conviction of
appellant/Azhar @ Md. Azhar under Section 8 of the
POCSO Act, 2012, which is a penal provision for a
sexual act with a child.
45. After having said that, we are also of the
view that the appellant/Azhar should also have been
charged under Section 326A of the IPC.
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
25/36
46. We have also given our anxious
consideration to the application of Section 11 of the
POCSO Act, 2012 in which the charge has not been
framed, which provides for punishment for sexual
harassment.
47. So far as the rest of the appellants [Cr.
Appeal (DB) No. 843 of 2017] are concerned, they may
be morally wrong in not restraining appellant/Azhar from
continuing to stalk the deceased. They were not in know
of the fact that the appellant/Azhar had gone to the
house of the deceased and had poured acid on her body.
The allegation of misbehaviour with the father of the
deceased at the hands of the other appellants also
appears to be a one time affair. It is quite possible that
if the complaint by the father of the deceased was not
believed by the family members of appellant/Azhar,
there would have been some retaliation and under such
circumstances, fisticuffs and minor push would not
constitute any offence for the other appellants to be held
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
26/36
guilty. It would, in our estimation, be the likened to de
minimis non curat lex.
48. Thus, on going through the evidence on
record, we find that the conviction of the appellant/Azhar
@ Md. Azhar under Sections 448, 354A, 326A, 307 and
302 of the I.P.C. is justified. The facts of the case do
not warrant any conviction under Section 8 of the
POCSO Act, 2012.
49. We, but in the present fact scenario, do
not approve of the conviction of appellants/Jalaluddin @
Jalalu @ Jamalu, Kamaluddin @ Kamalu, Jaibun Khatoon
and Baby Khatoon under any one of the sections of the
I.P.C.
50. Appellants/Jalaluddin @ Jalalu @ Jamalu;
Kamaluddin @ Kamalu; Jaibun Khatoon and Baby
Khatoon [Cr. Appeal (DB) No. 843 of 2017] are,
therefore, acquitted of the charges levelled against
them.
51. We have strong reservations about the
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
27/36
sentence imposed upon the appellant/Azhar @ Md.
Azhar [Cr. Appeal (DB) No. 1024 of 2017] for the
offence under Section 302 of the I.P.C. It appears that
the maximum sentence of imprisonment for reminder of
life has been awarded to him for the offence under
Section 302 of the I.P.C. This is not permissible.
52. In Bachan Singh Vs. Union of India;
1980 (2) SCC 684, while upholding the capital sentence
to the appellant, the Supreme Court had specified that the
death sentence ought to be given in “rarest of the rare”
cases.
53. Three years later, the Supreme Court in
Machhi Singh Vs. State of Punjab; 1983 (3) SCC 470
talked about the requirement of making a balance-sheet of
“aggravating and mitigating circumstances” and that the
mitigating circumstances also be accorded full weightage.
A balance is required to be struck between the
“aggravating and mitigating” circumstances before
imposing the punishment. The Supreme Court drew out a
two-pronged approach for the Trial Courts to follow, viz.,
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
28/36
the Trial Court ought to consider whether there is anything
uncommon about the crime in question which has rendered
the sentence of imprisonment of life inadequate and that
death sentence ought to be awarded and whether
according to the circumstances of the crime and the case
and giving maximum weightage to the mitigating
circumstances in favour of the accused, nothing less than
death sentence would be appropriate.
54. There have been but many departures in
the past from the said principle in sentencing the
offenders.
55. However, in Santosh Kumar
Satishbhushan Bariyar Vs. State of Maharashtra;
(2009) 6 SCC 498, the Supreme Court again clarified and
propounded the two-step process to decide whether a
convict deserved the death sentence. For death sentence
to be given, the case had to fall in the “rarest of the rare
category” and secondly, the alternative of life
imprisonment to be held to be inappropriate against the
gravity of the offence. While deciding the case to be of
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
29/36
“rarest of the rare” category, the court would be required
to identify the aggravating and mitigating circumstances,
giving both the conditions equal weightage and would also
have to take a call that life imprisonment is not the
appropriate sentence but this could be done only when it is
found that the reformation of the offender was not
possible/feasible. The State, therefore, in such
circumstances, would be under an obligation to provide
materials in order to support the suggestion that death
sentence only would be appropriate in that case.
56. About five years later, the Supreme Court
in Shankar Kishanrao Khade Vs. State of Maharashtra;
2013 (5) SCC 546 further cautioned the Trial Courts
that both, the crime and the criminal have to be taken into
account before taking decision with respect to sentencing.
What was emphasized by the Supreme court in this
instance was that without considering the mitigating
circumstances and referring to materials on the possibility
of reformation of the convict, sentence should not be
awarded off the hat.
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
30/36
57. It would be relevant here to state that in
Swamy Shraddananda @ Murali Manohar Mishra Vs.
State of Karnataka; (2008) 13 SCC 767, the Supreme
Court after consideration of earlier judgments in Gopal
Vinayak Godse Vs. State of Maharashtra; (1961) 3
SCR 440, Dalbir Singh Vs. State of Punjab; (1979) 3
SCC 745, Subash Chander Vs. Krishan Lal; (2001) 4
SCC 458, Shri Bhagwan Vs. State of Rajasthan;
(2001) 6 SCC 29, State of Madhya Pradesh Vs. Ratan
Singh; (1976) 3 SCC 470 and host of other cases, held
that depending upon the gravity of the offence and the
manner in which the crime was executed, it would be
appropriate and within the parameters of law to sentence
the offender for the remainder of his life or for any fixed
term without remissions. In a case reflecting depravity of
mind, a sentence for life which for all intents and purposes
would not be more than 14 years, would be highly unjust
to the victim. This recourse, namely, directing for
imprisonment for remainder of life or for a fixed term
beyond 14 years and without remissions, but could be
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
31/36
taken only if the other alternative punishment of a
sentence of 14 years of imprisonment would mean no
punishment at all.
58. This proposition was questioned in the
Union of India Vs. V. Sriharan @ Murugan & Ors.;
(2016) 7 SCC 1, in which the Constitution Bench upheld
the ratio in Swamy Shraddananda (supra) that a special
category of sentence, instead of death, for a term
exceeding 14 years and putting of such category of
sentence to be beyond the application of remission. While
doing so, the view expressed by the Supreme Court in
Sangeet & Anr Vs. State of Haryana; 2013 (2) SCC
452 that the deprival of remission power of the
appropriate Government by awarding sentences of 20 or
25 years or without any remission is not permissible and in
consonance with law, was specifically overruled.
59. However, the Supreme Court retained to
itself and the High Courts the power to exercise the option
of imposing special or fixed term sentences and not the
Trial Courts.
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
32/36
60. In Vikash Chaudhary Vs. The State of
Delhi; (2023) SCC Online SC 472, the Supreme Court
again analyzed all the judgments in seriatim and found
that the concept of special or fixed term sentences which
could be awarded by the Supreme Court and the High
Courts as Constitutional Courts served many purposes,
which are as follows :-
“(a) As a feasible alternative in
capital cases where the Court was
of the opinion that death sentence is
inappropriate, and:
(b) That the Court was of the
opinion that there were elements in
the crime and or the conduct of the
criminal which warranted imposition
of a mandatory sentence beyond a
minimum of 14 years prescribed by
the Code of Criminal Procedure.
(c) Where the court felt,
independently, that the serious
nature of the crime and the manner
of its commission warranted a
special sentence, whereby the
state’s discretion in releasing the
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
33/36
offender, should be curtailed so that
the convict is not let out before
undergoing a specified number of
years, of incarceration.”
61. The Trial Courts thus are absolutely
prohibited from imposing any modified or specific term of
sentence or life imprisonment for the remainder of the
convict’s life as an alternative to the death penalty. The
Trial Courts thus have only two option viz. to award a life
sentence with all remissions or death sentence. For death
sentence to be awarded, the Courts shall have to consider
the mitigating circumstances as also the aggravating
circumstances, for which, materials would be provided by
the State for the Courts to undertake the balancing test.
The State is under an obligation to show, in case it
proposes death sentence, that there is complete absence
of mitigating circumstances and that there are no chances
of reformation of the accused.
62. In Vikash Chaudhary (supra), the
Supreme Court after taking into account the judgments in
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
34/36
Manoj Vs. State of Madhya Pradesh; (2023) 2 SCC
353, Rajendra Prahladrao Wasnik Vs. State of
Maharashtra; (2019) 12 SCC 460, Channulal Verma
Vs. State of Chhatisgarh; (2019) 12 SCC 438 further
held that it is imperative to conduct evaluation of
mitigating circumstances at the trial stage “to avoid
slipping into a retributive response to the brutality of the
crime” by eliciting information both from the State and the
accused.
63. That not having been done, we are of the
view that the sentence imposed upon the appellant/Azhar
@ Md. Azhar [Cr. Appeal (DB) No. 1024 of 2017] requires
to be modified.
64. We, thus, convert his sentence under
Section 302 I.P.C. to life imprisonment, which would
mean that appellant/Azhar @ Md. Azhar would be
entitled to the remissions legally available to him. We
say so also for the reason that at the time of the
occurrence, appellant/Azhar was in his teens and no
prior case of similar kind was reported against him.
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
35/36
While imposing the sentence, the Trial Court has not
looked into the nominal roll of appellant/Azhar to know
whether he was on the road to reformation in jail.
65. Thus, we set-aside the judgment of
conviction and order of sentence dated 23.06.2017
recorded against the appellants, viz.,
appellants/Jalaluddin @ Jalalu @ Jamalu; Kamaluddin @
Kamalu; Jaibun Khatoon and Baby Khatoon, in Cr.
Appeal (DB) No. 843 of 2017.
66. The Cr. Appeal (DB) No. 843 of 2017 is,
accordingly, allowed.
67. The appellants in Cr. Appeal (DB) No.
843 of 2017, above-named, are acquitted of the charges
levelled against them. Since all of them are on bail,
they are discharged of their liabilities from the bail
bonds.
68. The judgment in Cr. Appeal (DB) No.
1024 of 2017 (Azhar @ Md. Azhar Vs. The State of
Bihar) is dismissed with modification in the sentence and
Patna High Court CR. APP (DB) No.1024 of 2017 dt.20-06-2024
36/36
the sentence of imprisonment for remainder of life has
been converted into imprisonment for life with all
remissions.
69. Both the appeals stand disposed off.
70. Let a copy of this judgment be
dispatched to the Superintendent of the concerned Jail/s
forthwith for compliance and record.
71. The records of the cases be returned to
the Trial Court forthwith.
72. Interlocutory application/s, if any, also
stand disposed off accordingly in both the appeals.
Praveen-II/Saurav
(Ashutosh Kumar, J)
(Jitendra Kumar, J)
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 24.06.2024
Transmission Date 24.06.2024
Legal Notes
Add a Note....