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CASE NO.:

Appeal (crl.) 149-150 of 2002

PETITIONER:

Simon & Ors.

RESPONDENT:

State of Karnataka

DATE OF JUDGMENT: 29/01/2004

BENCH:

Y.K. Sabharwal & B.N. Agrawal.

JUDGMENT:

JUDGMENT

Y.K. Sabharwal, J.

The challenge in these appeals is to the conviction of the appellants

in relation to killings in occurrence which took place on 9th April, 1993. On

Police receiving information about the place of hiding of notorious criminal

Veerappan and his gang, a Police party headed by Superintendent of

Police, K. Gopalakrishnan (PW97), on 9th April, 1993, proceeded to nab

them. The party comprising of police personnel, forester watchers and

informants went in two buses. As a result of blasting of land mines that

had been laid, the bus which was in front exploded. The explosion

resulted in injuries to many and death of 22 persons. The incident took

place at about 11.00 a.m. For treatment, the injured were shifted to

hospital by transporting them in the second bus. After the explosion of the

land mines, there were exchange of fire also. The FIR was recorded at

2.45 p.m. on the date of the occurrence. The case was filed against 121

persons, 50 persons were arrested and prosecuted. The trial resulted in

conviction of the appellants who are four in number. The first appellant is

Simon (accused No.18), second appellant is Gnana Prakash (accused

No.30), the third is Madhiah (accused No.31) and the fourth is Bilavendra

(accused No.32). The remaining accused have been acquitted.

The Special Judge, TADA Court, Mysore, by the impugned judgment

and order, has convicted the appellants for offence under Sections 3, 4, 5

of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short

'the TADA Act'), Sections 143, 148, 307, 302, 332, 333, 324, 120(B) and

149 Indian Penal Code, Section 3 of the Explosive Substances Act and

Section 25 of the Indian Arms Act. In respect of the main offences, the

appellants have been sentenced to undergo rigourous imprisonment for life

besides fine and further imprisonment in default of payment of fine. The

lesser punishment has been inflicted for offences under the Indian Arms

Act and Explosive Substances Act.

These appeals have been filed under Section 19 of the TADA Act.

The prosecution to prove the case against the appellants has examined a

large number of witnesses and has produced various documents. We

have heard learned counsel for the parties and have perused the record.

Having regard to the evidence produced, the occurrence, its time

and place and the presence of the witnesses at the place of occurrence as

per case of the prosecution can neither be questioned nor has it been

questioned by counsel for the appellants. These facts have been fully

established. The main question that has been raised on behalf of the

appellants by their learned counsel is about the identity and presence of

the appellants at the place of occurrence. It has been vehemently

contended that the prosecution has not been able to establish beyond

reasonable doubt that the appellants were present at the place of

occurrence and were involved in the crime.

The FIR was recorded on the information of M. Ashok Kumar

(PW45) who was working in the Jungle Patrol as Inspector of Police in the

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task force of Tamil Nadu for nabbing Veerappan and his men. He was

travelling in the second bus which was at a distance of about 100 to 150 ft.

from the first bus. PW45 has deposed about the explosion of the first bus

as a result of land mine blast, the attempt to chase Veerappan and his

gang and opening of fire towards them. Number of persons who were

travelling in the second bus are prosecution witnesses who have identified

the appellants apart from those persons from the first bus who received

injuries but were lucky to survive.

The most important witness on whose testimony the result of these

appeals hinge to a large extent is PW97 \026 an occupant of the first bus and

one of few fortunate to survive. The prosecution heavily relies upon the

testimony of PW97. The trial Judge has believed the testimony of PW97.

Learned counsel for the appellants, however, contends that it is not safe to

base conviction on the testimony of this witness who is vitally interested in

securing the conviction of the appellants.

Many witnesses have deposed to have seen the appellants at the

place of occurrence. The contention urged by the learned counsel,

however, is that there are various contradictions and infirmities in the

depositions of these witnesses and, thus, the conviction of the appellants

is not liable to be sustained. It has been submitted that the identification

by these witnesses for the first time in court after nearly 8 years of the

incident is of no avail in the absence of test identification parade. The

contention is that not holding of test identification parade is fatal to the

case of the prosecution.

Whether the identification of an accused for the first time in court in

absence of any test identification parade can be made the basis of the

conviction depends upon the facts and circumstances of the case. No

hard and fast rule can be laid down. We have been taken through the

testimony of PW63 (Achutananda). The main criticism that has been

levelled by Mr. Gonsalves to the deposition of PW-63 who was working in

the Special Task Force and was travelling in the second bus and who

identified accused Nos.18, 30 and 31 is that these accused even as per

testimony of PW63 were pointed out to him at the place of occurrence by

another witness PW89 (Alageshan) who was working at the relevant time

as a Forest Guard and had claimed that he knew the accused. It is further

pointed out that PW63 does not claim that he knew these accused earlier.

Further submission of learned counsel is that at best PW63 only had the

opportunity of getting a fleeting glimpse of the accused from a distance

and that too when the accused were running away and the said glimpse

was also only of the side face. Similar criticism has been made of PW64

who identified accused Nos.30 and 31. This witness was travelling in the

first bus and had received injuries. PW65 who was travelling in the second

bus also identified accused Nos.18 and 31. He was also a member of the

Special Task Force. The learned counsel has on similar grounds assailed

the testimony of all the witnesses who have identified the appellants.

Appellant Simon has been identified by 16 witnesses, Gnana Prakash has

been identified by 4 witnesses, Madhiah has been identified by 9

witnesses and Bilavendra has been identified by one witness. We may,

however, note that it is not the quantity which matters but the quality of

witnesses that matters. Further, learned counsel for the appellants

submits that PW89 who at the relevant time was working as the Forest

Guard has wrongly identified all the appellants except Simon. It is

contended that this star witness of the prosecution who is alleged to have

pointed out and shown the appellants to the other witnesses who identified

them in court having himself wrongly identified all accused except Simon,

the testimony of other witnesses deserves to be discarded on this ground

itself and this is said to be fatal to the case of the prosecution. The

conviction, it is contended, based on identification of such witnesses

cannot be sustained.

We are unable to accept the contention that wrong identification by

one witness by itself would be fatal to the case of the prosecution. A case

is required to be decided on the examination of entire evidence. Mere

wrong identification by one of the eye-witnesses by itself cannot be fatal to

the case of the prosecution. There can be variety of reasons for wrong

identification. The witness may be won over. There may be loss of

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memory or any other reason. The wrong identification made by PW89 of

the accused other than that of Simon, without anything more, by itself

would not be fatal if the case of the prosecution on the basis of other

evidence adduced by it stands proved. At this stage, we may notice that

the FIR records that PW89 saw some persons running from the top of a

nearby hills and he identified them as Veerappan and his brother Arjuna,

Ayyandorai and about 10 others.

Firstly, let us examine the deposition of PW97. He was the

Superintendent of Police under whom the Police personnel and others

went to nab Veerappan and his gang. It has been proved from evidence

that earlier for nearly one and a half years from January 1990 to May 1991,

PW97 was working as a Superintendent of Police, Jungle Patrol, Head

Quarters at Mettur Dam. The Jungle Patrol was constituted to nab

Veerappan and his gang. In 1993 also he was Superintendent of Police in

the Task Force constituted for the specific purpose. The witness has given

detailed account as to how he received information about the hideout of

Veerappan and his gang, how accompanied with other Police Officers and

Foresters, he proceeded to the place of occurrence. PW97 was standing

on the front footboard of the first bus. The bus, as a result of the blast of

land mines, went into pieces but PW97 on being on footboard was thrown

out of the bus and, thus, survived. He fell into a small ditch and sitting

from the said place, he was able to see as to what happened to inmates of

the bus, some having sustained serious injuries and some having died. He

has further deposed that immediately Mahendran, Selvam and Mhonadas

who were also in first bus got up from there with small injuries and came to

him and they saw that few people on the northern side and firing towards

them. He has deposed to have seen the appellants, accused No.1 and

accused Arjunan and some other people coming towards them by firing.

He also ordered his people to fire at them. PW97 sustained injuries on the

left leg, left hand and on the face. Immediately after the occurrence, when

the accused went into the forest and the firing came to stop, the witness

was sent to the hospital for treatment. That was before the FIR was

recorded. Out of all the accused persons, he identified the four appellants.

It is also in evidence that he had seen the appellants earlier to this incident

as well.

We have critically examined the testimony of PW97. The contention

of the learned counsel for the appellants, however, is that PW97 would

have been completely shattered as a result of manifold injuries be received

because the bus in which he was travelling was hit by land mines and,

therefore, it is highly improbable that he would have seen the appellants.

There is no substance in the contention. None of the injuries, it may be

noticed, were such as would hamper the witness spotting and seeing the

accused. Moreover, it has to be borne in mind that PW97 was a senior

officer who had worked for nearly one and half years as in-charge of the

Task Force that had been constituted to nab Veerappan and his gang.

Regarding the witness being shattered and perplexed, he has explained

that he was perplexed for two or three minutes. He has deposed to have

seen the accused persons on earlier occasions as well. He has given valid

reasons for not apprehending them earlier. He had the opportunity to see

the accused from a close distance. The witness had in his possession

documents regarding the accused. If PW97 was to falsely implicate, he

would not identify the four appellants only and leave remaining accused.

There were 50 accused in all. Learned counsel also contends that

because of dust as a result of blast of land mines, it was not possible to

see the accused. Though PW97 has stated that after the blast there was

dust but, at the same time, he has also stated that the dust had cleared in

two minutes. He has further explained that the smoke that had emanated

as a result of the blast was not very thick. Despite lengthy cross-

examination, the testimony of PW97 could not be shaken. In our view, the

testimony of PW97 is reliable and trustworthy and can safely be made the

basis of conviction.

The next contention urged is that not holding of test identification

parade, identifying the accused is fatal to the case of the prosecution in the

present case. The submission is that by very nature, the identification of

the accused for the first time in court is a weak piece of evidence and

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cannot be made the basis of conviction. Reliance has been placed on

State of Maharashtra through CBI v. Sukhdev Singh alias Sukha &

Ors. [(1992) 3 SCC 700] in support of the contention that in absence of

test identification parade, it would be extremely risky to place implicit

reliance on identification made for the first time in court after a long lapse

of time. But it has to be kept in mind that this principle will apply to case of

total strangers. In this contention, it has to be kept in view that PW97

knew the accused as stated hereinbefore. The question of identification

arises when accused are not known. Since the appellants were known in

the manner above stated, the holding of a test identification parade, on the

facts of the case, would have been wholly unnecessary. Regarding the

contention about the names of the appellants not being mentioned in the

FIR, it has been explained that the FIR was not recorded on the

information of PW97. PW97 had already been shifted to the hospital

before recording FIR and, therefore, non-mentioning of the names of the

accused in the FIR is of no consequence. On facts of the case, the lapse

of the time between the date of the incident and the date of identification

by PW97 is also of no consequence. As already noticed, out of fifty

accused, PW97 deposed only about presence of four appellants who were

earlier known to him.

It cannot be said that the appellants were strangers to PW97 or that

this witness had only a fleeting glimpse of the side face of the appellants.

The criticism levelled in respect of other witnesses that they identified the

accused for the first time in court would not apply to PW97.

Relying upon Budhsen & Anr. v. State of U.P. [(1970) 2 SCC 128],

it was contended that evidence as to identification deserves to be

subjected to a close and careful scrutiny by the court. The decision in

Shaikh Umar Ahmed Shaikh & Anr. v. State of Maharashtra [(1998) 5

SCC 103] was relied for the proposition that when the accused were

already shown to the witnesses, their identification in court by witnesses

was meaningless and such identification lost all its value and could not be

made the basis for rendering conviction. The legal position on the aspect

of identification is well settled. Under Section 9 of the Indian Evidence Act,

1872, the identity of the accused persons is a relevant fact. We have no

difficulty in accepting the contention that evidence of mere identification of

an accused person at the trial for the first time is from its very nature

inherently of a weak character. The purpose of a prior test identification is

to test and strengthen the trustworthiness of that evidence. Courts

generally look for corroboration of the sole testimony of the witnesses in

court so as to fix the identity of the accused who are strangers to them in

the form of earlier identification proceedings. This rule of prudence,

however, is subject to exceptions, when, for example, the court is

impressed by a particular witness on whose testimony it can safely rely,

without such or other corroboration. It has also to be borne in mind that

the aspect of identification parade belongs to the stage of investigation,

and there is no provision in the Code of Criminal Procedure which obliges

the investigating agency to hold, or confers a right upon the accused to

claim a test identification parade. Mere failure to hold a test identification

parade would not make inadmissible the evidence of identification in court.

What weight is to be attached to such identification is a matter for the

courts of fact to examine. In appropriate cases, it may accept the evidence

of identification even without insisting on corroboration {see Malkhansingh

& Ors. v. State of M.P. [(2003) 5 SCC 746]}. These well settled

principles, however, have no applicability to facts of the instant case. This

is a case where appellants were known to PW97 and he has identified

them in court and other witnesses, as we would presently notice,

corroborated the testimony of PW97, though, in our view, conviction could

be sustained on the sole testimony of PW97.

With reference to PWs63, 65 and 66 and other similar witnesses

who have deposed to have seen the appellants at the place of occurrence,

it was contended that basically the principles that the accused were

unknown to these witnesses shall apply and not that they had known and

seen the accused at the place of occurrence. The basis of this submission

is that these accused were not known to the witnesses except PW89 who

is said to have shown the accused to the aforesaid witnesses. There is

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considerable amount of substance in the submission of the learned

counsel but its effect and applicability to the facts of the case is a different

matter. We have no hesitation in accepting the contention that if the

conviction was based on the testimony of PWs63, 65 and 66 and other

such witnesses who saw the accused for the first time on date of

occurrence, it would have required corroboration. But the conviction of the

appellants is not based on the testimony of these witnesses. It is based on

the testimony of PW97 and aforesaid witnesses have lent corroborative

support.

We have noticed hereinbefore number of witnesses who identified

each of the appellants in court. Referring to the testimony of PWs 63 to

67, 72 and 73, contention urged is that the entire area was engulfed with

dust and nothing could be seen as a result of the blast of land mines; the

first vehicle was shattered in pieces and thrown upto height of 20-30 ft. and

that the assailants ran away after the blast and there was no firing after

blasting of land mines which shows that the assailants were not seen at all.

It is not possible to accept the contention that after the blast of land mines,

there was no fire. The firing from both side after the blast of land mines

stands proved from the testimony of PWs63, 64, 65 and 66. PW63

deposed that 'at the same time we were hearing the firing sound, then we

also started firing to that direction and followed'. The witness also

deposed that he had fired 16 rounds and that there was entry in the ledger

for having the fire arm and for returning it. Likewise, PW64 deposed that

he heard firing sound and returned back the firing. PW65 deposed that

while firing was coming from the side of hillock, he instructed 15 policemen

to also fire. To the similar effect is the testimony of PW66. Regarding the

contention that the area being engulfed with the dust and nothing could be

seen, we have already referred to the testimony of PW97 that such

condition prevailed only for about two minutes. It is correct that the first

vehicle was shattered in pieces as a result of land mines but, at the same

time, PW97, as a result of being on the footboard of the bus, was thrown in

a ditch from where he had ample opportunity to see the appellants after

the blast of the land mines. The presence of these witnesses at the place

of occurrence cannot be doubted. Under these circumstances, we are

unable to accept the aforenoticed contention of the learned counsel.

Another contention urged is that though PWs63 to 66 and other

similar witnesses have deposed to have seen the appellants at the place of

occurrence about 8 years back, but none of them including PW97 could

identify them, except by going near them in the court hall. It was pointed

out that the evidence of these witnesses shows that each of the witness

had to go close to the accused and then alone it was possible to identify

them. We find no substance in the contention. The reason for going near

the accused was that out of a large number of 50 accused present in the

court, only the four appellants were identified and it was proper to identify

them by going near them. It is quite difficult to identify an accused from a

distance in a court hall by pointing out a finger towards the accused by the

witness when the accused are large in number. It is in this context that the

trial court has recorded that after going near the accused, the witness has

identified them. It does not mean that testimony of witnesses in court

becomes doubtful on their having identified the accused after going near

them. Regarding the contention that the accused were shown to the

witnesses, we may only note that no such suggestion was given to the

investigating officer during the course of cross-examination. It further

deserves to be noticed that though the evidence commenced on 7th

February, 2001, such complaint was made to the court for the first time on

15th March, 2001 by which time a large number of witnesses had already

been examined.

There is no merit in any of the contention urged on behalf of the

appellants. The trial court has rightly convicted the appellants. For main

offences, the appellants have been sentenced to undergo rigorous

imprisonment for life. Considering the number of killings and brutal

manner thereof, we had issued notice to the appellants to show cause why

the punishment be not enhanced from life imprisonment to death penalty.

We have heard learned counsel for the parties on that question.

Facts in brief may be recapitulated to examine the question of

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sentence. There was a reign of terror in the area. Even Police had to

move about with escort party. The crime has been committed in a brutal

manner by use of land mines. The blast of mines has resulted in 22

persons losing their lives and many receiving grievous injuries.

The trial court held that it is a rarest of the rare case for imposing

capital punishment. At the same time, it has been further held that the

appellants do not deserve the said punishment for the reasons that it is not

the case of prosecution that the accused had started their carrier as

criminals and developed such notoriety; and that it was accused No.1,

Veerappan, who alone started his criminal activity which reached such

notoriety that by creating terror in the mind of the people he took

inhabitants from surrounding areas to his assistance and compelled them

to fall in his line. The trial court has also observed that it appears that

these accused are some such people joining the gang of Veerappan

involved in the criminal act as directed by him.

True, the grant of life imprisonment is the rule and death penalty an

exception in rarest of rare cases by stating 'special reasons' for awarding it

but, at the same time, it is also true that the punishment awarded must

commensurate with the crime committed by the accused. It is also true

that ordinarily the sentence is not enhanced by the Appellate Court unless

it is such a gross case that nothing but maximum sentence stipulated in

law deserves to be awarded.

We are conscious of the fact that the power to enhance death

sentence from life should be very rarely exercised and only for strongest

possible reasons and not only because the appellate court is of that view.

The question of enhancement of sentence to award death penalty can,

however, be considered where the facts are such that to award any

punishment less than maximum would shock the conscious of the court.

The fact of dismissal of special leave petition filed by the State seeking

enhancement of sentence on the ground of limitation does not take away

the power of this Court to make an order enhancing the sentence in these

appeals if the facts call for such an order being made.

The court has to consider the nature of the crime as well as the

accused. The trial court has rightly come to a definite conclusion that the

case falls in the category of rarest of rare cases for imposing capital

punishment. The reasons given by the trial court for not awarding it have

been stated above. In support of the reason stated by the trial court that it

appears that the first accused Veerappan compelled the appellants to join

his gang, learned counsel for the appellants contends that if a crime is

committed under duress, it would be a mitigating circumstance for not

awarding death penalty. In support of the contention learned counsel

relies upon a decision of House of Lords in Director of Public

Prosecutions for Northern Ireland v. Lynch [1975 Appeal Cases 653]

stating at page 695 "So contemporarily aware a written on the criminal law

as Professor Glanville Williams, Criminal Law, 2nd ed. (1961) p.751 quotes

the phrase "coactus volui" as descriptive of the mental state of an actor

under duress according to our criminal law. I hope, indeed, to have

demonstrated that duress is not inconsistent with act and will, the will being

deflected not destroyed; so that the intention conflicts with the wish. The

actor under duress has performed an act which is capable of full legal

effect : if he is to have relief it should be discretionary. Translated into

terms of the criminal law, he is guilty of the crime, but he may at discretion

be relieved against its potential penal consequences when it comes to

sentencing."

Lynch says that it shall be remembered that if someone is forced at

a gunpoint either to be inactive or do something positive he was so doing

because the instinct and perhaps the duty of self-preservation is powerful

and natural, the law would be censorious, inhuman if did not recognize the

appalling plight of a person who perhaps suddenly finds his life in jeopardy

unless he submits and obeys as it was said that where there have been

threats of the nature that have compelled a person to act in a particular

way and he is only acting in furtherance because of that the approach

should be to excuse that person.

The Lynch came up for consideration by House of Lords in Regina

v. Howe etc. [1987 Appeal Cases 417]. In Howe's case after noticing

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that prior to Lynch there was heavy pre-ponderous of authority against the

availability of the defence of duress in case of murder, the prior law has

been restored and, thus, Lynch case stands overruled. The Howe's case

has been noticed with approval by House of Lords in Regina v. Gotts

[1992 Appeal Cases 412]. In this decision, it was held that the defence of

duress is not available to a charge of murder.

Reliance has also been placed by Mr. Gonsalves on a decision of

this Court in Major R.S. Budhwar v. Union of India & Ors. [1996

CRL.L.J. 2862]\027a case in which sentence of death was commuted and

imprisonment of life imposed. In the said case Commanding Officer and

Second-in-Command in Army were murdered. Holding that murders were

diabolically planned and committed in cold blood, but it was by exploiting

the religious feelings of the accused who had initially declined to commit

the offence but ultimately succumbed to the threat, command and

influence of their superiors. Another mitigating factor found in favour of

accused was that Major Budhwar, who along with another Officer (since

dead) masterminded the two murders were awarded life imprisonment

whereas the appellants who carried out their orders had been sentenced to

death. Yet, another factor which weighed in favour of the accused was

their post murder repentance. The accused not only surrendered before

the authorities within two days but also spoke out the truth in their

confessional statements. Since none of these mitigating circumstances

had been taken into consideration by the High Court which was obliged to

consider both the aggravating and mitigating circumstances, this Court

balancing the two, imposed life imprisonment instead of death penalty.

In State of Rajasthan & Anr. v. Kartar Singh & Anr. [(1970) 2

SCC 61] instead of death sentence, life imprisonment was imposed as on

facts it was held that the part played by the accused was secondary.

Similarly in Kannan and Anr. v. State of Tamil Nadu [(1982) 2 SCC 350]

the sentence of imprisonment for life was substituted for the sentence of

death finding that the accused were really 'junior partners' in the

perpetration of the crimes. Their appearance on the scene was itself at a

late stage and they were instruments in the hand of and under the

domination of their fellow accused.

In Ronny alias Ronald James Alwaris & Ors. v. State of

Maharashtra [(1998) 3 SCC 625] instead of death, life imprisonment was

inflicted noticing that it was not possible, on the facts of the case, to predict

as to who played which part and, therefore, it was not possible to say

whose case falls within the rarest of rare cases category.

In Bachan Singh etc. v. State of Punjab etc. [(1980) 2 SCC 684]

rejecting the challenge to the constitutional validity of awarding death

penalty and holding that death penalty should not be imposed except in

rarest of rare cases, some of the mitigating and aggravating circumstances

required to be kept in view while considering the aspect of sentence have

been noticed. The question of sentence is to be decided on well-settled

and recognized legal principles balancing all circumstances in relation to

the crime and the criminal. The decision in Rajendra Prasad etc.etc. v.

State of Uttar Pradesh & Anr. [(1979) 3 SCC 646] wherein it was held

that after the enactment of Section 354(3), CrPC 'murder most foul' is not

the test and the shocking nature of crime or number of murders committed

is also not the criterion and that the focus had completely shifted from the

crime to the criminal was overruled in Bachan Singh's case. In Bachan

Singh's case, it was emphasized that for ascertaining the existence or

absence of 'special reasons', the court must pay due regard both to the

crime and the criminal. What is the relative weight to be given to the

aggravating and mitigating factors, depends on the facts and

circumstances of the particular case. More often than not, these two

aspects are so intertwined that it is difficult to give a separate treatment to

each of other. In many cases, the extremely cruel or beastly manner of the

commission of murder is itself a demonstrated index of the depraved

character of the perpetrator. That is why, it is not desirable to consider the

circumstances of the crime and the circumstances of the criminal in two

separate watertight compartments. The Constitution Bench said that

though all murders are cruel but cruelty may vary in its degree of culpability

and it is only then the culpability assumes the proportion of extreme

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

In Bachan Singh's case, some of the aggravating circumstances in

which the Court may impose penalty of death in its discretion noticed are :-

(a) if the murder has been committed after previous planning

and involves extreme brutality; or

(b) if the murder involves exception depravity; or

(c) if the murder is of a member of any of the armed forces of

the Union or of a member of any police force or of any

public servant and was committed\027

(i) while such member of public servant was on duty;

or

(ii) in consequence of anything done or attempted to

be done by such member or public servant in the

lawful discharge of his duty as such member or

public servant whether at the time of murder he

was such member or public servant, as the case

may be, or had ceased to be such member or

public servant; or

(d) if the murder is of a person who had acted in the lawful

discharge of his duty under Section 43 of the Code of

Criminal Procedure, 1973, or who had rendered assistance

to a magistrate or a police officer demanding his aid or

requiring his assistance under Section 37 and Section 129

of the said Code.

Some of the mitigating circumstances, the court shall take into

account in the exercise of its discretion that are noticed in Bachan Singh's

case are:-

(i) That the offence was committed under the influence of

extreme mental or emotional disturbance.

(ii) That age of the accused. If the accused is young or old,

he shall not be sentenced to death

(iii) The probability that the accused would not commit criminal

acts of violence as would constitute a continuing threat to

society.

(iv) The probability that the accused can be reformed and

rehabilitated.

The State shall by evidence prove that the accused does

not satisfy the conditions (iii) and (iv) above.

(v) That in the facts and circumstances of the case the

accused believed that he was morally justified in

committing the offence.

(vi) That the accused acted under the duress or domination of

another person.

(vii) That the condition of the accused showed that he was

mentally defective and that the said defect impaired his

capacity to appreciate the criminality of his conduct.

None of the aforesaid circumstances can be taken into

consideration in isolation. The circumstance of duress or domination of

another person is required to be taken into consideration as a relevant

circumstance but that has to be considered on the facts of a particular

case while considering and balancing all other aggravating and

mitigating circumstances. That alone is not the determining factor.

In Machhi Singh & Ors. v. State of Punjab [(1983) 3 SCC 470)

this Court has observed that one of the categories of rarest of rare case

may be when the collective conscience of the community is so shocked

that it will expect the holders of the judicial power center to inflict death

penalty irrespective of their personal opinion as regards desirability or

otherwise of retaining death penalty. The community may entertain such a

sentiment when the crime is committed in an extremely brutal, grotesque,

diabolical, revolting or dastardly manner so as to arouse intense and

extreme indignation of the community. Further, when the crime is

enormous in proportion. For instance, when multiple murders say of all or

almost all the members of a family or a large number of persons of a

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particular caste, community or locality are committed. It was observed that

in order to apply the guidelines, inter alia, the following questions may be

asked and answered:-

"(a) Is there something uncommon about the crime

which renders sentence of imprisonment for life

inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that

there is no alternative but to impose death

sentence even after according maximum

weightage to the mitigating circumstances which

speak in favour of the offender?"

The Court further said :

"If upon taking an overall global view of all the

circumstances in the light of the aforesaid proposition

and taking into account the answers to the questions

posed hereinabove, the circumstances of the case are

such that death sentence is warranted, the court would

proceed to do so."

In Krishna Mochi & Ors. v. State of Bihar [(2002) 5 SCC 81], a

three Judge Bench of this Court (to which one of us B.N. Agrawal, J. was a

member), having regard to the law laid down in Bachan Singh and

Machhi Singh cases, and considering the case in hand where pursuant to

the conspiracy hatched up, the militants from different groups went to

different localities in police uniforms armed with fire arms and explosive

substances, broke open the doors of the house of members of a particular

community and also set fire to their houses, came to the conclusion that

there cannot be any amount of doubt that the villagers were done to death

in extremely diabolical, revolting and ghastly manner and it affected the

normal tempo of life in locality. The crime was not only dastardly but also

enormous in proportion as 35 persons were massacred. Considering the

balance-sheet of aggravating and mitigating circumstances it was held that

the culpability of the accused persons assumes the proportion of extreme

depravity that the special reasons can legitimately be said to exist within

the meaning of Section 354(4) of the Code of Criminal Procedure and it

would be a mockery of justice if extreme penalty is not imposed.

In Devender Pal Singh v. State of NCT of Delhi and Anr. [(2002)

5 SCC 234] a decision of this Court by a Bench of three Judges in which

one of us (B.N. Agrawal, J.) was a member, it was said that 'Terrorist', who

are sometimes described as 'death merchants' have no respect for human

life and innocent people lose their lives because of mindless killing by

them and any compassion for such person would frustrate the purpose of

enactment of TADA and would amount to misplaced and unwarranted

sympathy.

Now, the factors in the present case which are relied upon as

mitigating factors by learned counsel for the appellants that there was no

administration in the area and that it had totally collapsed and at that time

no police officer could have proceeded beyond Hanur towards MM Hills

without police escorts and as many as eight vehicles were required to

escort one vehicle and further that each escort party consisted of minimum

three platoons; each platoon containing thirty-three persons; no summons

could be served in many villages; no government official could move freely

in that area, are all factors which, in our view, are aggravating

circumstances against the appellants instead of being mitigating

circumstances in their favour. The factors show the nature of crime and

the criminals. There is nothing to show that the appellants joined

Veerappan on account of these factors. It is evident that aforesaid factors

cannot be handy work of one person. In absence of any evidence, it

cannot be said that persons/accused responsible for aforesaid state of

affairs in the area because of these criminal activities, joined and

continued the said criminal activity on account of any duress, domination

or compulsion. Further it may be one of the mitigating factors but had to

be considered in the light of all circumstances. The accused are

responsible for such a situation. In a pre-meditated planned manner land

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mines were laid enroute the police party. There were firing also after the

blast of landmines. The appellants are members of notorious gang. Their

prime target is police personnel of the State and the Special Task Force

constituted to stop their activities with a view to terrorise the people. The

appellants are members of the gang led by A-I. They do not deserve any

sympathetic consideration. There is no evidence or foundation for the

conclusion that they acted under the duress of Accused No.1.

The facts of the present case do not show that the appellants were

compelled to fall in line with the criminal activity of accused No.1 or that

they joined his group on account of any duress or compulsion. The

manner in which the crime was committed clearly shows that any person

can contemplate the disastrous effect of blasting of landmines. It is

evident that the crime was diabolically planned. The appellants are threat

and grave danger to society at large. They must have anticipated that

their activity would result in elimination of large number of lives. As a

result of criminal activities, the normal life of those living in the area has

been totally shattered. It would be mockery of justice if extreme

punishment is not imposed. Thus, having given anxious consideration to

all the circumstances aggravating and mitigating, in our view, there can

hardly be a more appropriate case than the present one to award

maximum sentence. We have to perform this onerous duty for self-

preservation, i.e., preservation of persons who are living and working in

the area where appellants and their group operate.

In view of the aforesaid, while dismissing the appeals and confirming

the conviction of the appellants, we enhance the sentence of each of them

from life imprisonment to death penalty.