Full Judgment Text
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PETITIONER:
AMRUTLAL SOMESWAR JOSHI
Vs.
RESPONDENT:
STATE OF MAHARASHTRA (II)
DATE OF JUDGMENT10/08/1994
BENCH:
REDDY, K. JAYACHANDRA (J)
BENCH:
REDDY, K. JAYACHANDRA (J)
PUNCHHI, M.M.
CITATION:
1994 AIR 2516 1994 SCC (6) 186
JT 1994 (5) 25 1994 SCALE (3)721
ACT:
HEADNOTE:
JUDGMENT:
The Judgment of the Court was delivered by
K. JAYACHANDRA REDDY, J.- Amrutlal Someshwar Joshi, the
petitioner in this review petition is the appellant in
Criminal Appeal No. 87 of 1994 which has been dismissed by
us on 10-8-1994. The appellant has been convicted by the
trial court under Section 302 IPC and sentenced to death.
The same has been confirmed by the High Court. We heard
Criminal Appeal No. 87 of 1994 filed by him in this Court at
length and ultimately dismissed the same holding that the
appellant killed three persons including a child aged about
three years in a brutal and diabolical manner with a view to
commit robbery. We also held that the motive was heinous
and the crime committed was a cold-blooded, brutal and
diabolical one and that his case fell within the category of
"rarest of rare cases". Accordingly we confirmed the
judgments of the courts below awarding death sentence to the
petitioner herein. Hence the present review petition has
been filed seeking review of our judgment dated 10-8-1994 in
Criminal Appeal No. 87 of 1994.
2. In the meanwhile a separate petition dated 22-8-1994 to
review the judgment in Criminal Appeal No. 87 of 1994 sent
by the convicted accused from jail is received which is not
separately numbered. In this review petition as well as the
regular review petition filed through counsel, some points
regarding appreciation of evidence by this Court have been
raised. We have examined these points and we see no merit
in any of them. It may be mentioned here that all the
relevant evidence has been considered in detail and
thereafter we reached the conclusion that the said items of
evidence considered by us by themselves are sufficient to
bring home the guilt to the accused and we accordingly
confirmed the concurrent findings of the courts below.
There is no need to consider each one of them again in these
review petitions. We may incidentally mention here that in
the petition sent from jail the convicted accused has given
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his age as 25 years. He, however, has not raised any point
regarding his age stating that it should be taken as a
mitigating circumstance. Learned counsel for the
petitioner, however, mainly concentrated on the age of the
convicted accused on the date of commission
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of the offence in support of his plea that the young age
should be treated as a mitigating circumstance in the matter
of awarding death sentence.
3. Since this is a case of death sentence, we have heard
the learned counsel for the petitioner as well as learned
counsel for the State. Learned counsel for the petitioner
submitted that the petitioner on the date of occurrence i.e.
4-8-1987 was only 17 years old and therefore having regard
to his age, death sentence ought not to have been awarded.
In support of this submission strong reliance is placed on a
judgment of this Court in Harnam v. State of U. PI, which
was followed in Raisul v. State of U. p 2 In Harnam case’,
Justice P.N. Bhagwati, as he then was, having held that the
crime committed by the appellant was most reprehensible and
heinous disclosing brutality and callousness to human life,
yet having noted that the appellant was of 16 years of age
at the time of commission of crime, however, held that a
murderer who is below 18 years of age at the time of
commission of the offence should be considered to be "too
young" and that "he would be entitled to the clemency of
penal justice and it would not be appropriate to impose the
extreme penalty of death on him". In Raisul case2, Justice
P.N. Bhagwati, who spoke for the Bench in a short judgment
following the judgment in Harnam case1, again held that the
appellant Raisul was below 18 years of age at the time of
commission of the offence and therefore death sentence
should not have been imposed on him.
4. The learned counsel for the petitioner, in the instant
case, submitted that the age of the accused is one of the
mitigating circumstances and that if the accused is young he
shall not be sentenced to death. In this context the
learned counsel also placed reliance on the judgments of
this Court in Bachan Singh v. State of Punjab3 and Shankar @
Gauri Shankar v. State Of T.N.4 It may be mentioned here
that in Bachan Singh case3, a Constitution Bench of this
Court mentioned some aggravating circumstances warranting
the imposition of death sentence and also mentioned some
mitigating circumstances and age of the accused was
mentioned to be one such mitigating circumstance. It was
also observed by this Court that: (SCC p. 75 1, para 209)
"There are numerous other circumstances
justifying the passing of the lighter
sentence; as there are countervailing
circumstances of aggravation. ’We cannot
obviously feed into a judicial computer all
such situations since they are astrological
imponderables in an imperfect and undulating
society.’ "
In Machhi Singh v. State of Punjab5, a Bench of three Judges
of this Court having noted the principles laid down in
Bachan Singh case3 observed thus: (SCC p. 489, paras 39, 40)
1 (1976) 1 SCC 163 1975 SCC (Cri) 794
2 (1976) 4 SCC 301 1976 SCC (Cri) 613
3 (1980) 2 SCC 684: 1980 SCC (Cri) 580
4 (1994) 4 SCC 478 : 1994 SCC (Cri) 1252: JT (1994) 3 SC 54
5 (1983) 3 SCC 470: 1983 SCC (Cri) 681
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"In order to apply these guidelines inter alia
the following questions may be asked and
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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?
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 Allauddin Mian v. State of Bihar6 this Court after
referring to Bachan Singh case3 observed thus: (SCC p. 22,
para 12)
"That is why this Court in Bachan Singh case3
observed that when the question of choice of
sentence is under consideration the Court must
not only took to the crime and the victim but
also the circumstances of the criminal and the
impact of the crime on the community."
5. Neither in Bachan Singh case3 decided by a Constitution
Bench nor in Machhi Singh case5 nor in Allauddin Mian case6,
which are later in point of time, there is any reference to
Harnam case1 or Raisul case2 nor is there any indication in
those three later cases that a person aged about 18 years of
age on the date of commission of the offence should under no
circumstances be sentenced to death. We are only referring
to this aspect to show that there is no inflexible rule that
a criminal aged about 17 or 18 years should never be
sentenced to death irrespective of other circumstances,
however aggravating they may be.
6. Learned counsel for the petitioner, however, submitted
that the view taken in Harnam case1 or Raisul case2
certainly comes to the rescue of the petitioner who was aged
only about 17 years at the time of commission of the
offence. Assuming for argument sake that this Court in
these two cases has laid down that the accused who is under
18 years of age should not be sentenced to death, still the
important question to be considered in this case is whether
the petitioner was aged only 17 years on the date of
commission of the offence as is being claimed. The date of
the occurrence in this case was 4-8-1987. The accused-
petitioner when examined under Section 313 CrPC on 26-8-1992
gave his age to be about 22 years. Relying on this, the
learned counsel submitted that the age of the petitioner on
4-8-1987 i.e. the date of commission of the offence, was
only about 17 years and therefore death sentence should not
have been imposed. The trial court after having convicted
the petitioner under Sections 302 and 394 IPC examined the
accused on the next day on the point of sentence after
explaining the sum
6 (1989) 3 SCC 5: (1989 SCC (Cri) 490: AIR 1989 SC 1456
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and substance of the reasoning of its judgment. The accused
stated that justice has not been done to him and that
considering his young age, the court should show him
sympathy. The learned trial Judge also heard the advocate
for the accused on the point of sentence who stated that
when the offence was committed, the accused was of 17 years
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of age. The public prosecutor contended that the accused
was not 17 years of age at the time of commission of offence
placing reliance on a true copy of the school leaving
certificate of the accused in which his date of birth was
mentioned as 1-5-1967. The learned trial Judge held that
the accused was not of 17 years of age relying on the said
certificate. It is very pertinent to note that nobody
questioned the authenticity of the said certificate. The
learned trial Judge after elaborate discussion on the
question of sentence and also on the question of age
ultimately held that this is a case where death sentence
alone would meet the ends of justice. Before the High
Court, on question of sentence, the learned counsel for the
accused urged that the accused was a young man of about 20
years of age. The High Court, however, having taken all the
circumstances and findings of the court below into
consideration, by its judgment dated 26-10-1993 dismissed
the appeal and confirmed the death sentence. We are unable
to understand as to how the petitioner who gave his age as
22 years on 26-8-1992 when examined under Section 313 CrPC
could be of 20 years of age in the year 1993 when the High
Court heard the appeal. Likewise in the special leave
petition filed in this Court on 27-1-1994 the age of the
petitioner is given as 20 years. Strangely in the review
petition dated 22-8-1994 sent by the convicted accused from
jail, which is also attested by the Jail Superintendent, he
has given his age as 25 years. If one goes by this age,
then he would have almost completed 18 years on the date of
commission of the offence. We are only pointing out these
aspects only to show that the age as such given by the
accused or by his advocates at various stages differently is
of no consequence and cannot be given any weight. Even
before the High Court, the authenticity of the date of birth
of the appellant as given in the school leaving certificate
has not been questioned. Consequently the statement of the
accused regarding his age cannot be the criteria to hold
that he was below 18 years of age on the date of commission
of the offence. Learned counsel for the petitioner,
however, submitted that the accused has not been questioned
separately with reference to the date of birth given in the
school leaving certificate and therefore that cannot be
acted upon. We see no force in this submission. It is only
after the conclusion of the trial and after rendering the
judgment, the accused as per the provisions of CrPC was
questioned in the matter of awarding of sentence. When
there was a vague statement regarding age, the prosecution
produced the school leaving certificate and the same was
placed on record and the authenticity of the same has never
been in doubt. Learned counsel, however, further submitted
that the accused can be medically examined at this stage.
Under the above circumstances, we do not think that this
exercise has to be undertaken by this Court at this stage
when the authenticity of the school leaving certificate has
never been in doubt. The date of birth given in the said
certificate is 1-5-1967 and the petitioner was aged more
than 20 years
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on the date of commission of the offence. Therefore the
petitioner’s case does not come within the principle laid
down in Harnam case1 which has been followed in Raisul
case2.
7. Having given our earnest consideration to the questions
raised, we see absolutely no grounds to reduce the sentence
to imprisonment for life on the grounds urged by the learned
counsel. Accordingly the review petitions are dismissed.
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