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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 143 OF 2007

OMA @ Omprakash & Anr. .. Appellant(s)

Versus

State of Tamil Nadu ..

Respondent(s)

J U D G M E N T

K. S. Radhakrishnan, J.

1.Appellants, herein, were awarded death sentence by the trial

court after having found them guilty under Sections 395, 396 and

397 of Indian Penal Code (for short ‘IPC’). They were sentenced

to death by hanging under subsection 5 of Section 354 of Criminal

Procedure Code for offences committed under Section 396 IPC.

The trial court after noticing that, the accused persons came from

a State about 2000 k.m. away from Tamil Nadu, held as follows:

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“In this case, the accused came from a state about

2000 k.m. from our state and they did not think that

the victims were also human like them but they

thought only about the well being of their family and

their own life and committed the fear of death

amongst the common public of our state by

committing robbery and murder for about 11 years.

Therefore, this court is of the opinion that the death

sentence that would be imposed on them would

create a fear amongst the criminals who commit

such crime and further this case is a rarest of rare

case that calls for the imposition of death sentence.”

2.We have noticed that the trial Court, among other grounds,

was also influenced by a speech made by the then Chief Justice of

Tamil Nadu as well as a judgment delivered by another learned

Judge of Madras High Court on rowdy panchayat system.

Following that judgment and the provision under Section 396 IPC,

the trial court held that the accused deserves no sympathy and

he be sent to the gallows.

3.The trial court then placed the matter before the Madras

High Court for confirmation of the death sentence awarded to the

accused persons. Meanwhile, the accused persons also preferred

criminal appeal No. 566 of 2006 against the award of death

sentence. The appeal was partly allowed and conviction against

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Accused Nos. 1 and 2 under Sections 395, 396 and 397 IPC were

confirmed but the sentence under Section 396 IPC was modified

to that of life imprisonment instead of death sentence. Against

which, accused Nos. 1 and 2 came up with this appeal. While this

appeal was pending, the first appellant (A1) died and the second

appellant (A2) has prosecuted this appeal.

4.The prosecution case is as follows:

The appellants and nine other absconding accused persons

entered the house of one Lakshmi (PW 2) at 1 O’ clock in the

night of 07.06.1995 with the intention of committing burglary with

iron rods in their hands and burgled 17 tolas of gold and

Rs.5,000/- in cash. In that process, it was alleged that they had

strangulated Doctor Mohan Kumar, husband of PW 2 with a rope

and thereby killed him. It was alleged that the accused assaulted

PW 2, her son Sudhakar (PW 5) and other son Sakthivel (PW 6).

While escaping, they had also attacked Bormin Varghese (PW 1)

with iron rod. FIR Cr. No. 403 of 1995 under Sections 396, 397

IPC was registered at 5.30 am on 07.06.1995 at Police Station

Walajapet on the statement of one Patrick Varghese recorded by

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PW 7. Post Mortem of the deceased was conducted at 2.30 p.m.

on 07.06.1995.

5.The prosecution could not nab the accused persons for over

ten years. A2 was arrested on 26.02.2005 in connection with

some other case in Cr. No. 59 of 1996. It is the prosecution case

that his finger prints tallied with the ones lifted from the place of

occurrence in that other case. Further, it was also stated, as per

the investigation, A2 made a disclosure and pursuant to that the

iron rod (M.O. 1) used 10 years back was recovered.

6.A1 was arrested on 21.09.2005 by the special team in

connection with some other case in Cr. No. 352 of 2004 of Sri

Perumbatoor Police Station. An identification parade was

conducted so far as A1 is concerned on 20.10.2005 in which PW

10, Karthik an Auto Driver said to have identified A1. Later, the

charge-sheet was filed by PW 15 on 23.12.2005 and charges

under Sections 395, 396 and 397 IPC were framed against the

accused persons on 24.03.2006.

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7.The prosecution examined 15 witnesses to prove the case

against the accused persons. Statements of the accused persons

were recorded under Section 313 Cr.P.C. on 17.04.2006.

8.The trial court, as already indicated, convicted both the

accused persons on 21.04.2006 for the offences under Sections

395, 396 and 397 IPC. The trial court granted life imprisonment

under Section 395 and fine of Rs.1,000/- and they were sentenced

to death for the offence under Section 396 IPC. They were also

sentenced for RI for 7 years under Section 397 IPC.

9.The High Court, as already indicated, vide judgment dated

27.07.2006 converted the sentence of death to life imprisonment

under Section 396 IPC and rest of the sentence on other heads

were confirmed.

10.Shri Sanjay Jain, learned counsel appearing for the appellant

(A2) submitted that the trial court and the High Court had

committed a grave error in convicting the accused persons.

Learned counsel challenged his conviction mainly on two grounds:

one on the ground of non-conducting the identification parade so

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far as accused No.2 is concerned and other on the ground of

recovery of alleged iron rod. Learned counsel submitted that A2

was arrested after ten years of incident and was not properly

identified by any of the witnesses. Learned counsel also

highlighted the contradictions in the evidence of PW1, PW2 and

PW15 and brought out the lacuna in the evidence of those

witnesses. It was pointed out that the identification parade was

conducted only in respect of A1 who is no more and so far as A2

is concerned, no identification parade was conducted. Further, it

was pointed out that the photograph of the appellant was shown

to PW 1 which was marked with the objection of the accused.

Further, learned counsel pointed out that none of the witnesses in

their deposition had stated that they could identify A2. Learned

counsel pointed out that it was the prosecution case that a rod

was used for committing the crime but was not recovered and the

one alleged to have recovered had nothing to do with the crime.

Learned counsel submitted that the prosecution miserably failed

to prove the case against the appellant beyond reasonable doubt

and that this is a fit case where this Court should have given the

benefit of doubt and the accused be acquitted.

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11.Shri C. Paramasivam, learned counsel appearing for the

State submitted that the High Court has rightly confirmed the

conviction of the appellant and reduced the sentence to life

imprisonment. Learned counsel submitted that there is no fixed

rule with regard to the period within which test identification

parade be held. Further, it was pointed out that no motive was

alleged against the prosecution for the delay in conducting test

identification parade. Learned counsel also submitted that even

in the absence of test identification parade, the identification of

accused persons by the witnesses in court is a substantive piece

of evidence. Further, it was also pointed out that the gang of

dacoits from Haryana and Rajasthan States used to come down to

state of Tamil Nadu and commits heinous crimes like dacoity and

murder and after arrest of those accused persons, several

undetected cases could be detected and few of the accused

persons have been convicted. Learned counsel submitted that

the trial court and the High Court have rightly convicted the

accused persons relying on the evidence of PW 1, PW 2, PW 5 and

PW 10.

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12.We are unhappy in the manner in which Sessions Court has

awarded death sentence in the instant case. The tests laid down

by this Court for determining the rarest of rare cases in Bachan

Singh v. State of Punjab (1980) 2 SCC 684 and Machhi Singh

& Ors. v. State of Punjab (1983) 3 SCC 470 and other related

decisions like Jagmohan Singh v. State of U.P. (1973) 1 SCC

20, were completely overlooked by the Sessions Court. The

Sessions Court had gone astray in referring to the views

expressed by the then Chief Justice of Madras in a lecture

delivered at Madurai, which advice according to the Sessions

Judge was taken note of by another learned Judge in delivering a

judgment in rowdy panchayat system. Sessions Judge has stated

that he took into consideration that judgment and the provision in

Section 396 of the Indian Penal Code to hold that the accused had

committed the murder and deserved death sentence. Further,

the trial court had also opined that the imposition of death

sentence under Section 396 IPC is the only weapon in the hands

of the judiciary under the prevailing law to help to eliminate the

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crime and the judgment of the trial court should be on that

ground.

13.It is apposite to refer to the special reasons which weighed

with the Sessions Judge to award the death sentence which reads

as follows:

“36.In this case, it has been decided by this court

to impose the maximum sentence of death to be

imposed on the accused No. 1 and 2, under Section 396

of the Indian Penal Code, under Section 354(3) of the

Criminal Procedure Code, the special reasons for

awarding such sentence to be given show that the case

is a case of rarest of rare cases. Therefore, this court

gives the following reasons:

(a)xxx xxx xxx

(b)Before the enactment of Criminal Procedure

Code, many years ago, civilization has come

into existence. From the rule of Kingdom to the

rule of people and the democracy and

constitution came into existence in many

countries. In these circumstances, the death

sentence is prevailing in all the countries in

different from and that sentence is imposed on

such criminal who deserves for the same. We

all know that more particularly in the court in

like America, the sentence like ‘lynching’ has

attained the legal form and given to the

deserving criminals and in Arab countries the

law provide for imposing sentence like

‘slashing’, ‘beheading’ taking the organ for

organ like ‘eye for eye’, ‘tooth for tooth’. The

above mentioned facts are the development of

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criminal jurisprudence. Therefore, this court is

of the opinion that it is proper to impose death

sentence to the accused in this case.

(c)xxx xxx xxx

(d) xxx xxx xxx

(e)In this case, the accused came from a State

about 2000 k.m. from our State and they did not think

that the victims were also human like them but they

thought only about the wellbeing of their family and

their own life and committed the fear of death amongst

the common public of our State by committing robbery

and murder for about 11 years. Therefore, this court is

of the opinion that the death sentence that would be

imposed on them would create a fear amongst the

criminals who commit such crime and further this case

is a rarest of rare cases that call for the imposition of

death sentence.

(f)The honorable Chief Justice of High Court of

Madras, Justice A. P. Shah while delivering a lecture at

Madurai said strict laws should be enacted as regard to

Child abuse and the persons committing the crime

should be punished accordingly. This advise was taken

note of the honorable Justice Karpagavinayagm while

delivering a judgment on rowdy panchayat system. He

ordered that the government should enact suitable law

to eliminate this menace. Taking this judgment into

consideration and that there is a provision in Section

396 of the Indian Penal Code that the people involved

in dacoity can be imposed with death sentence, the

accused who have committed the murder without any

pity deserve to be imposed with the death sentence.

This court is also of the opinion that the imposition of

death sentence under Section 396 of the Indian Penal

Code is the only weapon in the hands of the judiciary

under the prevailing law to help to eliminate the crime.

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Accordingly this judgment should be. Therefore, this

court is of the view that the death sentence should be

imposed on the accused.”

(emphasis added)

14.We cannot countenance any of the reasons which weighed

with the Sessions Judge in awarding the death sentence. Reasons

stated in para 36(b) and (e) in awarding death sentence in this

case exposes the ignorance of the learned judge of the criminal

jurisprudence of this country.

15.Section 354(3) of the Code states whenever a Court awards

death sentence, it shall record special reasons. Going by the

current penological thought, imprisonment of life is the rule and

death sentence is an exception. The legislator’s intent behind

enacting Section 354(3) clearly demonstrates the concern of the

legislature. This principle has been highlighted in several

judgments of this Court apart from the judgments already

referred to. Reference may also be made to few of the judgments

of this Court, such as Ronal James v. State of Maharashtra ,

(1998) 3 SCC 625; Allauddin Mian v. State of Bihar , (1989) 3

SCC 5; Naresh Giri v. State of M.P., (2001) 9 SCC 615 etc. We

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are disturbed by the casual approach made by the Sessions Court

in awarding the death sentence. The ‘special reasons’ weighed

with the trial judge to say the least, was only one’s predilection or

inclination to award death sentence, purely judge-centric.

Learned judge has not discussed the aggravating or mitigating

circumstances of this case, the approach was purely ‘crime-

centric’.

16.We are really surprised to note the “special reasons” stated

by the trial judge in para 36(b) of the judgment. We fail to see

why we import the criminal jurisprudence of America or the Arab

countries to our system. Learned trial judge speaks of sentence

like “lynching” and described that it has attained legal form in

America. Lynching means kill someone for an alleged offence

without a legal trial, especially by hanging. Learned judge failed

to note that the constitutionality of death sentence came up for

consideration before the U.S. Supreme Court in William Henry

Furman v. State of Georgia 408 U.S. 238 (1972), which

involved three persons under death sentence, more than 600

prisoners on death row. Five Judges invalidated the death

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penalty, four dissented and the Court held that death penalty to

be cruel and unusual punishment in violation of the 8

th

and 14

th

amendments. Later in Gregg v. Georgia [ 428 U.S. 153

(1976)], the court laid down the concern expressed in Furman.

In the United States, some States have done away with death

sentence as well. The judges’ inclination to bring in alleged

system of lynching to India and to show it as special reason is

unfortunate and shows lack of exposure to criminal laws of this

country. Learned trial judge while showing special reasons

referred to law prevailing in Arab countries, like imposing

sentence of ‘slashning’ beheading, taking organ for organ like

“eye for eye”, “tooth for tooth” and says those are the

developments of criminal jurisprudence. Learned judge then says

that the accused persons in the present case also deserve death

sentence. Learned judge lost sight of the fact that the Criminal

Jurisprudence of this country or our society does not recognize

those types of barbaric sentences. We are surprised to see how

those factors have gone into one’s mind in awarding death

sentence.

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17.We are also not concerned with the question whether the

criminals have come from 20 km away or 2000 km away.

Learned judge says that they have come to “our state”, forgetting

the fact that there is nothing like ‘our state’ or ‘your state’. Such

parochial attitude shall not influence or sway a judicial mind.

Learned judge has further stated, since the accused persons had

come from a far away state, about 2000 km to “our state” for

committing robbery and murder, death sentence would be

imposed on them. Learned judge has adopted a very strange

reasoning, needs fine tuning and proper training..

18.Learned trial judge in para 36(f) has also referred to a

judgment of the High Court rendered by a learned Judge of the

High Court on “rowdy panchayat system”. Learned trial judge has

stated that he has taken into consideration that judgment also in

reaching the conclusion that death sentence be awarded. We are

not in a position to know how that judgment is relevant or

applicable in awarding death sentence. Learned trial judge has

also not given the citation of that judgment or has given any

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explanation, as to how that judgment is applicable to the case on

hand.

19.Learned trial judge has also opined that the imposition of

death sentence under Section 396 of the IPC is the only weapon

in the hands of judiciary under the prevailing law to help to

eliminate the crime. Judiciary has neither any weapon in its

hands nor uses it to eliminate crimes. Duty of the judge is to

decide cases which come before him in accordance with the

constitution and laws, following the settled judicial precedents. A

Judge is also part of the society where he lives and also conscious

of what is going on in the society. Judge has no weapon or sword.

Judge’s greatest strength is the trust and confidence of the

people, whom he serves. We may point out that clear reasoning

and analysis are the basic requirements in a judicial decision.

Judicial decision is being perceived by the parties and by the

society in general as being the result of a correct application of

the legal rules, proper evaluation of facts based on settled judicial

precedents and judge shall not do anything which will undermine

the faith of the people.

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20.We also fail to see how the reasons stated in para 36(f) be a

guiding factor to award death sentence. One of the Code of

Conduct recognized at the Bangalore Conference of the year 2001

reads as follows:

“A judge shall exercise the judicial function

independently on the basis of the judge’s assessment

of the facts and in accordance with a conscientious

understanding of the law, free of any extraneous

influences, inducement, pressures, threats or

interference, direct or indirect, from any quarter or for

any reason.”

21. Criminal Court while deciding criminal cases shall not be

guided or influenced by the views or opinions expressed by

Judges on a private platform. The views or opinions expressed by

the Judges, jurists, academicians, law teachers may be food for

thought. Even the discussions or deliberations made on the State

Judicial Academies or National Judicial Academy at Bhopal, only

update or open new vistas of knowledge of judicial officers.

Criminal Courts have to decide the cases before them examining

the relevant facts and evidence placed before them, applying

binding precedents. Judges or academicians opinions,

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predilection, fondness, inclination, proclivity on any subject,

however eminent they are, shall not influence a decision making

process, especially when judges are called upon to decide a

criminal case which rests only on the evidence adduced by the

prosecution as well as by the defence and guided by settled

judicial precedents. National Judicial Academy and State Judicial

Academies should educate our judicial officers in this regard so

that they will not commit such serious errors in future.

22.The High Court of Madras heard the Criminal Appeal No.

566/2006 filed by the accused Nos. 1 and 2, along with Referred

Trial 1 of 2006. The High Court, however, did not confirm the

death sentence awarded by the trial Court, but awarded life

sentence to both the accused persons. As already indicated, we

are, in this case, concerned only with the conviction and sentence

awarded on the 2

nd

accused, since 1

st

accused is no more.

23.We may indicate at the outset that the accused persons

were apprehended after a period of ten years from the date of the

incident and nine other accused persons are still absconding. The

incident had taken place on 07.06.1995 and the accused persons

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were arrested on 26.02.2005 from Rajasthan in connection with

some other case ie. Cr. No. 59 of 1996. The prosecution version

that A-2 finger prints tallied with ones lifted from the place of

occurrence in Cr. No. 59 of 1996. Further, it is also the

prosecution case that A2 made a disclosure and pursuant to that

iron rod (M.O. No.1) used 10 years back was recovered. An

identification parade was conducted so far as A1 is concerned on

20.10.2005, who is now no more. However, no identification

parade was conducted so far as A-2 is concerned. It has come out

in evidence that the photographs of A-2 was shown to PW 1 by

the police on 30.10.2005 and asked him to identify the accused

and on identification by PW 1, the accused was interrogated by

the police. In cross-examination, PW1 has stated as follows:

“Accused No.2 attacked me before I could see him

and make any enquiry. He assaulted me with a rod.

I could not see with which hand he assaulted me. It

is incorrect to suggest that the accused did not

assault me as stated by me.”

24.PW 1 also further stated in cross-examination as follows:

“There was light only after the neighbors switched on

the light. It was dark earlier. It is incorrect to suggest

that it is not possible to see the accused in the

darkness.”

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25.PW 2 – Lakshmi, wife of the deceased in her examination-in-

chief stated as follows:

“I opened my eyes and saw. When I saw, accused

Nos. 1 and 2 were present amongst the persons. I

fainted immediately. There was commotion in my

house.”

26.In cross-examination, she has stated as follows:

“In the police interrogation, I did not tell that the

accused Nos. 1 and 2 were present in the incident

that took place in my house.”

27.PW 5, brother of PW 1, in his examination-in-chief has stated

as follows:

“At that time accused Nos. 1 and 2 attacked me with

the rod. I fell down and fainted. When I regained

consciousness I was in the room of my father. My

father, my mother and younger brother sustained

injuries. I asked my mother to wake up my father.

Myself and my mother tried to wake up my father.

After that neighbors admitted us in the hospital. I

remember it was in the C.M.C. hospital. The accused

attacked me similar rod that is being showed to me by

you. Material object No. 1 is the rod.”

28.In cross-examination, PW 5 stated as follows:

“In the police enquiry I told that I did not know what

happened as I was sleeping. I do not remember

whether I told the doctor in the hospital at Valajah that

I was assaulted by unknown persons……………….In the

police interrogation, I did not tell that I had seen the

accused No. 1 and 2…………….”

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29.The investigation officer stated that he did not receive any

documents about the arrest of the appellant (A2) and he had not

mentioned in the final report about the crimes that had taken

place in other States.

30.We may indicate that in the instant case, FIR was registered

against unknown persons. A2, as already stated, was arrested

after ten years on 26.02.2005 in connection with some other

crime. We fail to see how PW1 and PW2 could identify A2 in the

court at this distance of time. They were guided by the

photographs repeatedly shown by the police.

31.Evidently, the witnesses did not know the accused earlier,

hence the accused could be identified only through a test

identification parade which was not done in this case, so far as A-

2 is concerned. In this connection, we may refer to the

judgment of this court in Mohd. Iqbal M. Shaikh v. State of

Maharashtra (1998) 4 SCC 494 wherein this Court held that:

“If the witness did not know the accused persons by

name but could only identify from their appearance

then a test identification parade was necessary, so

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that, the substantive evidence in court about the

identification, which is held after fairly a long period

could get corroboration from the identification

parade. But unfortunately the prosecution did not

take any steps in that regard and no test

identification parade had been held.”

32.This Court in Ravindra Alias Ravi Bansi Gohar v. State

of Maharashtra and Others (1998) 6 SCC 609 deprecated the

practice of showing the photographs for indentifying the culprits

and held as follows:

“The identification parade belongs to the

investigation stage and they serve to provide the

investigating authority with materials to assure

themselves if the investigation is proceeding on the

right lines. In other words, it is through these

identification parades that the investigating agency

is required to ascertain whether the persons whom

they suspect to have committed the offence were the

real culprits – and not by showing the suspects or

their photographs. Such being the purpose of

identification parades, the investigating agency, by

showing the photographs of the suspects whom they

intended to place in the TI parade, made it farcical.

If really the investigating agency was satisfied that

PWs 2 and 12 did know the appellants from before

and they were in fact amongst the miscreants, the

question of holding the TI parade in respect of them

for their identification could not have arisen.”

33.In Ravi alias Ravichandran v. State represented by

Inspector of Police (2007) 15 SCC 372, this Court held that:

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“A judgment of conviction can be arrived at even if

no test identification parade has been held. But

when a first information report has been lodged

against unknown persons, a test identification

parade in terms of Section 9 of the Evidence Act, is

held for the purpose of testing the veracity of the

witness in regard to his capability of identifying

persons who were unknown to him.”

34.Further, it is also held that:

“It was incumbent upon the prosecution to arrange a

test identification parade. Such test identification

parade was required to be held as early as possible

so as to exclude the possibility of the accused being

identified either at the police station or at some other

place by the witnesses concerned or with reference

to the photographs published in the newspaper. A

conviction should not be based on a vague

identification.”

35.A-2, it may be noted, was not named in the FIR, nor any

identification parade was conducted to identify him by the

witnesses. It is rather impossible to identify the accused person

when he is produced for the first time in the court i.e. after ten

years since he was unknown to the witnesses. We are of the view

that it is a glaring defect which goes to the root of the case since

none of the witnesses had properly identified the accused.

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36.We may notice that it is the case of prosecution that one rod

was also used for the murder of the deceased persons in this

case, but that rod was not recovered. One rod stated to have

been recovered at the instance of A2 could not be connected with

the crime. PW 5 in his examination-in-chief had stated that the

accused had attacked him with a similar rod that was being

shown to him which would indicate that the witness could not

conclusively connect the rod which was used for committing the

crime. Further, the rod was recovered after a period of ten years

of the incident and it is highly doubtful, whether it was used for

the commission of the offence. Further, the prosecution case is

that a rope was used for the strangulation causing death to Dr.

Mohan Kumar, but the rope was not recovered.

37.In Dwarkadas Gehanmal v. State of Gujarat (1999) 1

SCC 57, this Court has held that it is for the prosecution to prove

that the object recovered has nexus with the crime. This Court in

Mustkeem alias Sirajudeen v. State of Rajasthan (2011) 11

SCC 724 held, “what is admissible under Section 27 of the Act is

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the information leading to discovery and not any opinion formed

on it by the prosecution.” This Court held as follows:

“With regard to Section 27 of the Act, what is

important is discovery of the material object at the

disclosure of the accused but such disclosure alone

would not automatically lead to the conclusion that

the offence was also committed by the accused. In

fact, thereafter, burden lies on the prosecution to

establish a close link between discovery of the

material object and its use in the commission of the

offence. What is admissible under Section 27 of the

Act is the information leading to discovery and not

any opinion formed on it by the prosecution.”

38.In this case, the prosecution could not prove that the rod

recovered has any nexus with the crime alleged to have been

committed by A-2. We are of the view that the prosecution,

therefore, could not establish the guilt of the second accused

beyond reasonable doubt. The High Court, therefore, committed

a gross error in awarding life sentence to A2.

39.This appeal is, therefore, allowed and the conviction and

sentence awarded to A-2 is set aside. We are informed that the

accused has already served the jail sentence for more than eight

years now. A-2 is, therefore, set at liberty, unless he is wanted in

any other case.

Page 25 25

…………………………………..J.

(K.S. Radhakrishnan)

…………………………………..J.

(Dipak Misra)

New Delhi,

December 11, 2012

Page 26 26

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 143 OF 2007

OMA @ Omprakash & Anr. ... Appellants

Versus

State of Tamil Nadu ...Respondent

J U D G M E N T

Dipak Misra, J.

I respectfully concur with the conclusion and views

expressed by my learned Brother Radhakrishnan, J. However,

with regard to the ratiocination made by the learned Sessions

Judge while imposing the death sentence, I propose to record my

Page 27 27

views in addition especially in the context of the reasons which

have already been reproduced by my learned brother.

2. Article 141 of the Constitution of India stipulates that the

law declared by the Supreme Court shall be binding on all Courts

within the territory of India. The reasons ascribed by the learned

trial Judge are required to be tested on the bedrock of precedents

in their conceptual and perceptual eventuality.

3.In Bachan Singh v. State of Punjab

1

, the majority, after

deliberating many an aspect, came to hold that the provision

under Section 302 of the Indian Penal Code which provides for

imposition of death penalty neither violates the letter nor the

ethos and Article 19 of the Constitution. Testing the said

provision on the anvil of Articles 14 and 21 of the Constitution, it

reaffirmed the view taken by this Court in Jagmohan Singh v.

State of U.P.

2

and held that death penalty does not violate

Articles 14, 19 and 21 of the Constitution.

4.The majority proceeded to answer the question whether the

Court can lay down standards or norms restricting the area of

imposition of death penalty to narrow the categories of murders

1

(1980) 2 SCC 684

2

(1973) 1 SCC 20

Page 28 28

and, in that context, it opined that standardisation of the

sentencing process would tend to sacrifice at the altar of blind

uniformity, in fact, indeed there is a real danger of such

mechanical standardisation degenerating into a bed of

procrustean cruelty. Thereafter, the Bench proceeded to state

thus:-

“As Judges, we have to resist the temptation to

substitute our own value-choices for the will of the

people. Since substituted judicial “made-to-order”

standards, howsoever painstakingly made, do not

bear the people's imprimatur, they may not have the

same authenticity and efficacy as the silent zones

and green belts designedly marked out and left open

by Parliament in its legislative planning for fair play

of judicial discretion to take care of the variable,

unpredictable circumstances of the individual cases,

relevant to individualised sentencing. When Judges,

acting individually or collectively, in their benign

anxiety to do what they think is morally good for the

people, take upon themselves the responsibility of

setting down social norms of conduct, there is every

danger, despite their effort to make a rational guess

of the notions of right and wrong prevailing in the

community at large and despite their intention to

abide by the dictates of mere reason, that they

might write their own peculiar view or personal

predilection into the law, sincerely mistaking that

changeling for what they perceive to be the

Page 29 29

community ethic. The perception of “community”

standards or ethics may vary from Judge to Judge.”

[Emphasis added]

5.The majority referred to the decision in Gurbaksh Singh

Sibbia v. State of Punjab

3

and stated that the observations

made therein aptly applied to the desirability and feasibility of

laying down standards in the area of sentencing discretion. In the

case of Gurbaksh Singh (supra), the Constitution Bench had

observed thus:-

“Judges have to decide cases as they come before

them, mindful of the need to keep passions and

prejudices out of their decisions.”

6.After stating broad guidelines relating to the mitigating

circumstances, the majority ultimately ruled thus:-

“Judges should never be bloodthirsty. Hanging of

murderers has never been too good for them. Facts

and Figures, albeit incomplete, furnished by the

Union of India, show that in the past, courts have

inflicted the extreme penalty with extreme

infrequency — a fact which attests to the caution and

compassion which they have always brought to bear

on the exercise of their sentencing discretion in so

grave a matter. It is, therefore, imperative to voice

the concern that courts, aided by the broad

illustrative guide-lines indicated by us, will discharge

3

(1980) 2 SCC 565

Page 30 30

the onerous function with evermore scrupulous care

and humane concern, directed along the highroad of

legislative policy outlined in Section 354(3) viz. that

for persons convicted of murder, life imprisonment is

the rule and death sentence an exception. A real and

abiding concern for the dignity of human life

postulates resistance to taking a life through law's

instrumentality. That ought not to be done save in

the rarest of rare cases when the alternative option

is unquestionably foreclosed.”

7.In Machhi Singh and Others v. State of Punjab

4

, a

three-Judge Bench explained the concept of rarest of rare cases

by stating that the reasons why the community as a whole does

not endorse the humanistic approach reflected in “death

sentence-in-no-case” doctrine are not far to seek. In the first

place, the very humanistic edifice is constructed on the

foundation of “reverence for life” principle. When a member of

the community violates this very principle by killing another

member, the society may not feel itself bound by the shackles of

this doctrine. Secondly, it has to be realized that every member of

the community is able to live with safety without his or her own

life being endangered because of the protective arm of the

community and on account of the rule of law enforced by it. The

4

(1983) 3 SCC 470

Page 31 31

very existence of the rule of law and the fear of being brought to

book operates as a deterrent for those who have no scruples in

killing others if it suits their ends. Every member of the

community owes a debt to the community for this protection.

8.After stating about the feeling of the community and its

desire for self preservation, the Court observed that the

community may well withdraw the protection by sanctioning the

death penalty. Thereafter, it ruled thus:-

“But the community will not do so in every case. It

may do so “in rarest of rare cases” when its

collective conscience is so shocked that it will expect

the holders of the judicial power centre to inflict

death penalty irrespective of their personal opinion

as regards desirability or otherwise of retaining death

penalty.”

9.Emphasis was laid on certain aspects, namely, manner of

commission of murder, motive for commission of murder, anti

social or socially abhorrent nature of the crime, magnitude of

crime and personality of the victim of murder. After so stating,

the propositions emerged from Bachan Singh (supra) were

culled out which are as follows:-

Page 32 32

“(i) The extreme penalty of death need not be

inflicted except in gravest cases of extreme

culpability.

(ii) Before opting for the death penalty the

circumstances of the ‘offender’ also require to be

taken into consideration along with the

circumstances of the ‘crime’.

(iii) Life imprisonment is the rule and death sentence

is an exception. In other words death sentence must

be imposed only when life imprisonment appears to

be an altogether inadequate punishment having

regard to the relevant circumstances of the crime,

and provided, and only provided, the option to

impose sentence of imprisonment for life cannot be

conscientiously exercised having regard to the

nature and circumstances of the crime and all the

relevant circumstances.

(iv) A balance sheet of aggravating and mitigating

circumstances has to be drawn up and in doing so

the mitigating circumstances have to be accorded

full weightage and a just balance has to be struck

between the aggravating and the mitigating

circumstances before the option is exercised.”

10.Thereafter, the Court stated that to apply the said

guidelines, the following questions are required to be asked and

answered:-

Page 33 33

“(a) Is there something uncommon about the crime

which renders sentence of imprisonment for life

inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that

there is no alternative but to impose death sentence

even after according maximum weightage to the

mitigating circumstances which speak in favour of

the offender?”

11.In Lehna v. State of Haryana

5

a three-Judge Bench, after

referring to the pronouncements in Bachan Singh (supra) and

Machhi Singh (supra), ruled under what circumstances the

collective conscience of the community is likely to be shocked.

We may fruitfully quota a passage from the same:-

“A convict hovers between life and death when the

question of gravity of the offence and award of

adequate sentence comes up for consideration.

Mankind has shifted from the state of nature towards

a civilized society and it is no longer the physical

opinion of the majority that takes away the liberty of

a citizen by convicting him and making him suffer a

sentence of imprisonment. Award of punishment

following conviction at a trial in a system wedded to

the rule of law is the outcome of cool deliberation in

the court room after adequate hearing is afforded to

the parties, accusations are brought against the

accused, the prosecuted is given an opportunity of

5

(2002) 3 SCC 76

Page 34 34

meeting the accusations by establishing his

innocence. It is the outcome of cool deliberations

and the screening of the material by the informed

man i.e. the Judge that leads to determination of the

lis.

The principle of proportion between crime and

punishment is a principle of just desert that serves as

the foundation of every criminal sentence that is

justifiable. As a principle of criminal justice it is

hardly less familiar or less important than the

principle that only the guilty ought to be punished.

Indeed, the requirement that punishment not be

disproportionately great, which is a corollary of just

desert, is dictated by the same principle that does

not allow punishment of the innocent, for any

punishment in excess of what is deserved for the

criminal conduct is punishment without guilt.”

[Emphasis added]

12.In Haresh Mohandas Rajput v State of Maharshtra

6

,

the Bench referred to the principles in Bachan Singh (supra) and

Machhi Singh (supra) and proceeded to state as follows:-

“The rarest of the rare case” comes when a convict

would be a menace and threat to the harmonious

and peaceful coexistence of the society. The crime

may be heinous or brutal but may not be in the

category of “the rarest of the rare case”. There must

be no reason to believe that the accused cannot be

reformed or rehabilitated and that he is likely to

6

(2011) 12 SCC 56

Page 35 35

continue criminal acts of violence as would constitute

a continuing threat to the society. The accused may

be a menace to the society and would continue to be

so, threatening its peaceful and harmonious

coexistence. The manner in which the crime is

committed must be such that it may result in intense

and extreme indignation of the community and shock

the collective conscience of the society. Where an

accused does not act on any spur-of-the-moment

provocation and indulges himself in a deliberately

planned crime and meticulously executes it, the

death sentence may be the most appropriate

punishment for such a ghastly crime. The death

sentence may be warranted where the victims are

innocent children and helpless women. Thus, in case

the crime is committed in a most cruel and inhuman

manner which is an extremely brutal, grotesque,

diabolical, revolting and dastardly manner, where his

act affects the entire moral fibre of the society e.g.

crime committed for power or political ambition or

indulging in organised criminal activities, death

sentence should be awarded. (See C. Muniappan v.

State of T.N.

7

, Dara Singh v. Republic of India

8

,

Surendra Koli v. State of U.P.

9

, Mohd. Mannan v.

State of Bihar

10

and Sudam v. State of

Maharashtra

11

.)”

13.In Sham Alias Kishore Bhaskarrao Matkari v. State of

Maharashtra

12

, while dealing with the justifiability of imposition

7

(2010) 9 SCC 567

8

(2011) 2 SCC 490

9

(2011) 4 SCC 80

10

(2011) 5 SCC 509

11

(2011) 7 SCC 125

12

(2011) 10 SCC 389

Page 36 36

of death penalty, the Court took note of the aggravating and

mitigating circumstances and eventually opined that though the

appellant therein caused death of three persons, he had no pre-

plan to do away with the family of his brother and the quarrel

started due to the land dispute and, in fact, on the fateful night,

he was sleeping with the other victims in the same house and in

those circumstances and other material placed clearly showed

that he had no pre-plan or predetermination to eliminate the

family of his brother. The Bench also took note of his antecedents

and did not agree with the view expressed by the High Court

which had enhanced the sentence from life to death on the

ground that it was a rarest of the rare case where extreme

penalty of death was called for.

14.Recently, in Mohammed Ajmal Mohammad Amir Kasab

alias Abu Mujahid v. State of Maharashtra

13

, the Court

referred to the earlier decisions and taking note of the terrorist

attack from across the border, the magnitude of unprecedented

enormity on all scales, the conspiracy behind the attack, the

preparation and training for the execution, and more importantly,

13

(2012) 9 SCC 1

Page 37 37

its traumatizing effect, opined that it was the rarest of rare case

to come before this Court since the birth of Republic. The Bench,

in that context, expressed thus:-

“Putting the matter once again quite simply, in this

country death as a penalty has been held to be

constitutionally valid, though it is indeed to be

awarded in the “rarest of rare cases when the

alternative option (of life sentence) is unquestionably

foreclosed”. Now, as long as the death penalty

remains on the statute book as punishment for

certain offences, including “waging war” and murder,

it logically follows that there must be some cases,

howsoever rare or one in a million, that would call for

inflicting that penalty. That being the position we fail

to see what case would attract the death penalty, if

not the case of the appellant. To hold back the death

penalty in this case would amount to obdurately

declaring that this Court rejects death as lawful

penalty even though it is on the statute book and

held valid by the Constitutional Benches of this

Court.”

15.We have referred to the aforesaid decisions to highlight that

this Court, on number of occasions, has dealt with under what

circumstances death penalty could be imposed and what are the

mitigating factors not to impose such punishment. Illustrative

guidelines have been provided, and, needless to say, it would

Page 38 38

depend upon the facts of each case. No strait-jacket scale can be

provided as has been said in number of pronouncements.

16.As is obvious from the reasoning of the learned Sessions

Judge, he has referred to the prevalence of death sentence in

certain countries and observed that in certain countries where law

provides “slashing”, “beheading”, “taking the organ for organ”

like ‘eye for eye’, ‘tooth for tooth’ to the accused, it shows the

growth of criminal jurisprudence. That apart, he had referred to

the speech of the then learned Chief Justice of the High Court, and

it is clearly demonstrable that the same has influenced his

appreciation, analysis and perception. Being influenced by the

erroneous notions of law and speech of the learned Chief Justice,

may be understanding it totally out of context, his passion and

prejudices have dominated over his reasoning faculties and the

result, as I perceive, is devastating.

17.In Hindustan Times Ltd. v. Union of India and Others

14

,

a two-Judge Bench of this Court referred to an article On Writing

Judgments, by Justice Michael Kirby of Australia

15

wherein it has

been highlighted, apart from any facet that the legal profession is

14

(1998) 2 SCC 242

15

* [(1990) (Vol. 64. Australian Law Journal, p. 691)]

Page 39 39

entitled to have, it demonstrated that the Judge has the correct

principles in mind, has properly applied them and is entitled to

examine the body of the judgment for the learning and precedent

that they provide and further reassurance of the quality of the

judiciary which is the centre-piece of our administration of justice.

Thus, the fundamental requirement is that a Judge presiding over

a criminal trial has the sacrosanct duty to demonstrate that he

applies the correct principles of law to the facts regard being had

to the precedents in the field. A Judge trying a criminal case has

a sacred duty to appreciate the evidence in a seemly manner and

is not to be governed by any kind of individual philosophy,

abstract concepts, conjectures and surmises and should never be

influenced by some observations or speeches made in certain

quarters of the society but not in binding judicial precedents. He

should entirely ostracise prejudice and bias. The bias need not be

personal but may be an opinionated bias.

18. It is his obligation to understand and appreciate the case of

the prosecution and the plea of the defense in proper perspective,

address to the points involved for determination and consider the

material and evidence brought on record to substantiate the

Page 40 40

allegations and record his reasons with sobriety sans emotion. He

must constantly keep in mind that every citizen of this country is

entitled to a fair trial and further if a conviction is recorded it has

to be based on the guided parameters of law. And, more

importantly, when sentence is imposed, it has to be based on

sound legal principles, regard being had to the command of the

statute, nature of the offence, collective cry and anguish of the

victims and, above all, the “collective conscience” and doctrine of

proportionality. Neither his vanity nor his pride of learning in

other fields should influence his decision or imposition of

sentence. He must practise the conscience of intellectual honesty

and deal with the matter with all the experience and humility at

his command. He should remind himself that some learning does

not educate a man and definitely not a Judge. The learning has to

be applied with conviction which is based on proper rationale and

without forgetting that human nature has imperfect expression

when founded bereft of legal principle. He should not usher in his

individual satisfaction but adjudge on objective parameters failing

which the whole exercise is likely to be named “monstrous

Page 41 41

legalism”. In this context, I may profitably reproduce the

profound saying of Sir P. Sidney :-

“In forming a judgment, lay your hearts void of fore-

taken opinions; else, whatsoever is done or said will

be measured by a wrong rule; like them who have

the jaundice, to whom everything appeareth

yellow.”

19.In this context, I may usefully refer to the pronouncement in

State of W. B. Others v. Shivanand Pathak and Others

16

,

wherein the High Court had affirmed the death sentence imposed

by the learned Sessions Judge. The High Court had commenced

the judgment with the expression that it was one of the most

sensational trials of the recent years and the murder is a

diabolical one because the innocent persons have been killed by

the police officers who were supposed to be the protectors of law-

abiding citizens. Commenting on the said expression, this Court

observed thus:-

“We are constrained to observe that the High Court

has not kept in view the several decisions of this

Court and has not examined the circumstances

proved while considering the question of sentence

but on the other hand, have been swayed away with

16

(1998) 5 SCC 513

Page 42 42

the fact that the trial is a sensational one, and

therefore, the officials must be awarded the extreme

penalty of death. We do not find that it is a correct

appreciation of the law on the subject dealing with

the award of death penalty, even if a conviction

under Sections 302/34 IPC is sustained. The learned

Sessions Judge also came to the conclusion that the

case can be treated to be the rarest of rare cases as

police officials on whose shoulders the safety of

citizens lies and being the protectors of the society

are accused for killing of three civilians without any

provocation and resistance.”

[Underlining is ours]

From the aforesaid, it is graphically clear that a judge, while

imposing sentence, should not be swayed away with any kind of

sensational aspect and individual predilections. If it is done, the

same would tantamount to entering into an area of emotional

labyrinth or arena of mercurial syllogism.

20.In the case at hand, as is perceptible, the learned trial Judge

has primarily been guided by some kind of notion and connected

them with civilized world and democracy which, in my considered

opinion, should not have been at all referred to. He should

remember the language of Article 302 of IPC and the precedents

that govern the field for imposition of death penalty. In that

event, the perception might have been wrong but it could not

Page 43 43

have been said that it is based on some kind of personal

philosophy. Thus, the view expressed does not sustain the

concept of law and rather, on the contrary, exhibits a sanctuary of

errors. Speeches or deliberations in any academic sphere are not

to be taken recourse to unless they are in consonance with

binding precedents. A speech sometimes may reflect a personal

expression, a desire and, where a view may not be appositely

governed by words, is likely to confuse the hearers. It is a matter

of great remorse that the learned trial Judge had ventured to

enter into such kind of adventure. It can be stated with certitude

that in a criminal trial, while recording the sentence, he should

have been guided and governed by established principles and not

by personal notions or even ideas of eminent personalities

Binding judgments should be the Bible of a Judge and there

should not be any deviation. I have said so, so that the trial Court

judges are appositely guided and refrain themselves from

engaging in innovative creativity or “borrowed creativity” which

has no sanction in Law.

21.Consequently, the appeal stands allowed, the judgment of

conviction and order of sentence are set aside and the appellant

Page 44 44

is directed to be set at liberty forthwith unless he is required to be

detained in any other case.

……………………………… .J.

[Dipak Misra]

New Delhi;

December 11, 2012.