Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1008-09 OF 2007
Ankush Maruti Shinde and others ....Appellants
Versus
State of Maharashtra ....Respondent
With
Criminal Appeal Nos. 881-882 of 2009
(Arising out of SLP (Crl.) Nos.8457-58 of 2008)
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Leave granted in SLP (Crl.) Nos.8457-58 of 2008 which have been
filed by the State of Maharashtra questioning alteration of death sentence to
life sentence.
2. These appeals are interlinked and are disposed of by this common
judgment. By the impugned judgment a Division Bench of the Bombay
High Court dispose of the reference made by learned Third Adhoc
Additional Sessions Judge, Nasik, under Section 366 of the Criminal
Procedure Code, 1973 (in short the ‘Code’) for confirmation of death
sentence. While upholding the conviction and the death sentence of accused
Nos.1, 2 & 4, the sentence in respect of the accused Nos. 3, 5 & 6 was
altered to life sentence with fine. Accused Nos. 1, 2 & 4 were also
convicted for offence punishable under Section 376(2)(g) of the Code and
sentenced to suffer rigorous imprisonment for 10 years. The order of
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conviction and sentence under Section 376(2)(g) in respect of accused
nos.3, 5 & 6 was set aside. The accused persons were convicted for offence
punishable under Section 307 read with Section 34 and sentenced to five
years’ imprisonment each. They were also convicted under Section 397 read
with Sections 395 & 396 IPC. The accused persons filed the criminal
appeals while the State has filed the appeals for alteration of the life
sentence to death and also challenged the acquittal of three of the accused
persons for offence punishable under Section 376 IPC.
3. Prosecution version in a nutshell is as follows:
On 5/6/2003 Trambak and all his family members as well as the guest
Bharat More were chitchatting after dinner and at about 10.30 p.m. seven to
eight unknown persons entered his hut and all of them were wearing
banyan and half pant and they started threatening the family members. They
demanded money as well as ornaments and Trambak took out Rs.3000/-
from his pocket and handed over to one of them. Some of the gang
members forcibly took away the mangalsutra as well as ear-tops and dorley
from the person of Vimalabai, ear-tops from the person of Savita and silver
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rings which were around her feet. From the person of Manoj, they removed
a silver chain and a wrist watch. Thereafter they went out of the hut and
consumed liquor. After some time they re-entered the hut with weapons
like knife, axe handle, sickle, spade with handle and yokpin etc., to rob the
house members and collect more money and ornaments etc. They started
beating the family members and Trambak was the first person who received
assault. Sandeep and other members of the family told the dacoits to take
away whatever they could collect from the house, but no family members
should be assaulted. At this stage Sandeep was assaulted and so also
Shrikant @ Bhurya, Bharat and Manoj. The dacoits did not spare
Vimalabai as well. They tied hands and legs of all the family members
except Manoj and Vimalabai. As a result of assault Manoj, Trambak,
Sandeep, Shrikant and Bharat became unconscious. Three of the dacoits
dragged Savita out of the hut and took her to the guava garden. Two of the
dacoits then picked up Vimalabai and dragged her towards the well. One of
them raped her near the well and then she was taken to the guava garden
where Savita was taken. Vimalabai was assaulted and brought back to the
hut. After some time, the three dacoits brought Savita back in naked
condition and with injuries on her body. When the dacoits had entered the
hut at about 10.30 p.m. the light bulb in the hut was burning and TV was
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on. The dacoits increased the volume of the tape recorder and after they
dropped Savita in the hut, they put on shoes and started walking on the
persons lying injured and they thought that all of them were dead.
Vimalabai (PW 8) lost her consciousness around 12 O'Clock in the night
and till then the dacoits were present in the hut and they left the hut under
the belief that all of the victims were dead. However, Manoj (PW1) and his
mother Vimalabai (PW 8) survived. They are the eye witnesses to the
prosecution case. On the basis of information given, investigation was
undertaken.
The clothes from the dead bodies of five deceased persons as well as
the clothes on the person of Manoj and Vimalabai were seized. From the
spot some weapons like wooden handle, spade with handle, yokpin and
sickle were also seized. The seized articles were sent for chemical analysis
and CA reports from Exhibit 58 to Exhibit 72 were received. In view of the
gravity of the incidence, the police machinery was obviously under
tremendous pressure and it sought assistance from the neighbouring districts
like Ahmednagar, Aurangabad, Jalgaon and Dhule etc. The first
breakthrough came on 23/6/2003 when accused nos.1 and 2 came to be
arrested under arrest panchanamas (Exhibits 44 and 45) by the Crime
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Branch. The police during the course of investigation also got information
that some other accused were also involved in a separate crime registered
with the police station at Bhokardhan in Jalna district on 19/6/2003 and the
police,, therefore, filed an application before the competent Court seeking
transfer of the accused in Crime No.74 of 2003 registered with the
Bhokardhan police station and finally accused nos.3 to 5 came to be arrested
on 27.6.2003 under arrest panchanamas (Exhibits 53, 54 and 55) after their
custody was transferred from the police station at Bhokardhan. On the arrest
of accused nos.1 to 5 their clothes were seized and they were subjected to
medical examination. Dr. Satish Vasant Shimpi (PW 16) examined accused
nos.3, 4 and 5 on 27/6/2003 and issued medical certificates at Exhibits 133
to 135. Of these three accused, accused No.4 - Raju Mhasu Shinde was seen
to have sustained injuries within three weeks. Accused nos.1 and 2 were
examined by Dr.Vilas Patil (PW 24) on 23/6/2003. Both the accused were
seen to have sustained injuries within three weeks and the medical
certificates were issued at Exhibits 195 and 196. During the course of
investigation and it is evident that the statement of Sunita wife of Raja
Shinde was recorded at Exhibit 77A in the presence of Ibrahim Wazir
Shaikh (PW 7) on 25/6/2003. Test identification parade of the accused nos.1
to 5 was held on 25/7/2003 in the jail premises and Manoj (PW 1) identified
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the five accused as the unknown persons who had entered their hut and
assaulted the family members Vimalabai (PW8) also identified Accused
Nos. l, 3, 4 and 5 as the unknown persons who had entered the hut and
assaulted the family members. She however, could not identify accused
No.2 Raja Appa Shind. Accused no.6 came to be arrested on 7/10/2004 and
his TI parade was held on 9/10/2004. Both PW 1 and PW 8 identified the
said accused as one of the unknown persons who entered their hut and
assaulted the family members. The test identification report at Exhibit 120
was proved through the evidence of the Special Executive Magistrate,
Ramesh Sonawane (PW 13).
The Trial Court convicted the accused persons as noted above.
Because of the award of death sentence, reference was made to the High
Court. Accused persons also filed appeals. Basic question related to
evidence relating to Test Identification Parade (in short ‘TI Parade’). High
Court found the same to be credible.
4. The basic question raised by learned counsel for the accused-
appellant is that T I Parade as held and so called dying declarations have no
relevance.
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5. Learned counsel for the State on the other hand supported the
judgments of the trial court as confirmed by the High Court. In the appeals
filed by the State it is submitted that no plausible reason has been indicated
not to award death sentence in respect of accused persons whose TI Parade
was held.
6. It is to be noted that TI Parade of A1 to A5 was held on 25.7.2003.
PW1 had identified all the five accused persons, PW 8 had identified A1,
A3, A4 and A5. Subsequently A6 was arrested on 7.10.2004 and the TI
Parade was held immediately thereafter where PWs 1& 8 identified him. It
is to be noted that first TI Parade was held on 25.7.2003 in the jail premises
where all the five accused persons were made to stand in a queue in the
parade hall. PW 25 who was the Magistrate and conducted the TI Parade
clearly stated that he found the dummies to be acceptable and respectable
persons selected by the police was assessed by him and found to be reliable.
In his explanation report Ext.229 he has clearly stated that no police
personnel or any of the employees of the jail was allowed to stand in the
parade hall when each of the witnesses was brought for identification of the
accused. He has further stated that the accused persons were asked to
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change their clothes on every time and the accused could not be seen any of
the witnesses prior to such witnesses being called for identifying the
accused. As rightly observed by the trial court and the High Court, in the
cross examination of PW 25 nothing material has been brought out to
discredit his evidence.
7. If potholes were to be ferreted out from the proceedings of the
Magistrate holding such parades possibly no T I Parade can escape from one
or two lapses. If a scrutiny is made from that angle alone and the result of
the parade is treated as vitiated every TI Parade would become unusable. T
I Parades are not primarily meant for the Court. They are meant for
investigation purposes. The object of conducting TI Parade is two fold.
First is to enable the witnesses to satisfy themselves that the prisoner whom
they suspect is really the one who was seen by them in connection with the
commission of the crime. Second is to satisfy the investigating authorities
that the suspect is the real person whom the witnesses had seen in
connection with the said occurrence.
8. PWs. 1 & 8 are the two eye witnesses to the occurrence. Few
discrepancies of trivial and minor nature cannot be a reason to discard their
evidence.
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9. In Amitsingh Bhikamsing Thakur v. State of Maharashtra [2007(2)
SCC 310] it was observed as follows:
“14. It is trite to say that the substantive evidence is the evidence of
identification in Court. Apart from the clear provisions of Section 9 of the
Indian Evidence Act, 1872 (in short the ‘Evidence Act’) the position in law
is well settled by a catena of decisions of this Court. The facts, which
establish the identity of the accused persons, are relevant under Section 9 of
the Evidence Act. As a general rule, the substantive evidence of a witness is
the statement made in Court. The evidence of mere identification of the
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, therefore, is
to test and strengthen the trustworthiness of that evidence. It is accordingly
considered a safe rule of prudence to generally look for corroboration of the
sworn testimony of witnesses in Court as to 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. The identification parades belong
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to the stage of investigation, and there is no provision in the Code which
obliges the investigating agency to hold or confers a right upon the accused
to claim, a test identification parade. They do not constitute substantive
evidence and these parades are essentially governed by Section 162 of the
Code. Failure to hold a test identification parade would not make
inadmissible the evidence of identification in Court. The weight to be
attached to such identification should be a matter for the Courts of fact. In
appropriate cases it may accept the evidence of identification even without
insisting on corroboration.”
11. The evidence of PWs 1 & 8 have been analysed in great detail of the
trial court and the High Court to find their evidence to be cogent and
credible. Apart from that, the evidence of medical officer PWs. 9 & 15
clearly established the allegation of rape. It is stated that Savita had
suffered bleeding injury on her private part and her hymen was ruptured.
She was found to be of the age of 15 years and Vimalabai stated that she
(Savita) was dragged out of hut by three accused and was brought back
naked and dead by the very same accused and thrown in the hut.
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12. The injuries externally noted on the body of Savita provide further
sustenance to the prosecution version that she was subjected by sexual
assault by the accused when she would fall a victim to their hunger of flesh
and the empowerment exercised by all of them, multiple blows were given
on and around her skull. Injuries were sustained by PWs. 1 & 8. It is to be
noted that Manoj (PW1) regained his consciousness around 7.30 am while
Vimlabai (PW 8) regained consciousness at about 9.30 on 6.6.2003. It is
clear from the evidence that had the medical treatment not been provided,
both of them would have died. They had suffered grievous injuries and
were under medical treatment for 1 and 1½ months. They had suffered
several injuries which were caused by blunt and hard objects.
13. It was vehemently urged by learned counsel for the accused
appellants that this is not a case to be fall under the rarest of rare category.
14. The law regulates a social interests, arbitrates conflicting claims and
demands. Security of persons and property of the people is an essential
function of the State. It could be achieved through instrumentality of
criminal law. Undoubtedly, there is a cross cultural conflict where living
law must find answer to the new challenges and the courts are required to
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mould the sentencing system to meet the challenges. The contagion of
lawlessness would undermine social order and lay it in ruins. Protection of
society and stamping out criminal proclivity must be the object of law
which must be achieved by imposing appropriate sentence. Therefore, law
as a corner-stone of the edifice of “order” should meet the challenges
confronting the society. Friedman in his “Law in Changing Society” stated
that, “State of criminal law continues to be – as it should be – a decisive
reflection of social consciousness of society”. Therefore, in operating the
sentencing system, law should adopt the corrective machinery or the
deterrence based on factual matrix. By deft modulation sentencing process
be stern where it should be, and tempered with mercy where it warrants to
be. The facts and given circumstances in each case, the nature of the crime,
the manner in which it was planned and committed, the motive for
commission of the crime, the conduct of the accused, the nature of weapons
used and all other attending circumstances are relevant facts which would
enter into the area of consideration. For instance a murder committed due to
deep-seated mutual and personal rivalry may not call for penalty of death.
But an organised crime or mass murders of innocent people would call for
imposition of death sentence as deterrence. In Mahesh v. State of M.P.
(1987) 2 SCR 710), this Court while refusing to reduce the death sentence
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observed thus:
“It will be a mockery of justice to permit the
accused to escape the extreme penalty of law when faced
with such evidence and such cruel acts. To give the
lesser punishment for the accused would be to render the
justicing system of the country suspect. The common
man will lose faith in courts. In such cases, he
understands and appreciates the language of deterrence
more than the reformative jargon.”
15. Therefore, undue sympathy to impose inadequate sentence would do
more harm to the justice system to undermine the public confidence in the
efficacy of law and society could not long endure under such serious
threats. It is, therefore, the duty of every court to award proper sentence
having regard to the nature of the offence and the manner in which it was
executed or committed etc. This position was illuminatingly stated by this
Court in Sevaka Perumal etc. v. State of Tamil Naidu (AIR 1991 SC 1463).
16. The criminal law adheres in general to the principle of proportionality
in prescribing liability according to the culpability of each kind of criminal
conduct. It ordinarily allows some significant discretion to the Judge in
arriving at a sentence in each case, presumably to permit sentences that
reflect more subtle considerations of culpability that are raised by the
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special facts of each case. Judges in essence affirm that punishment ought
always to fit the crime; yet in practice sentences are determined largely by
other considerations. Sometimes it is the correctional needs of the
perpetrator that are offered to justify a sentence. Sometimes the desirability
of keeping him out of circulation, and sometimes even the tragic results of
his crime. Inevitably these considerations cause a departure from just desert
as the basis of punishment and create cases of apparent injustice that are
serious and widespread.
17. Proportion between crime and punishment is a goal respected in
principle, and in spite of errant notions, it remains a strong influence in the
determination of sentences. The practice of punishing all serious crimes
with equal severity is now unknown in civilized societies, but such a radical
departure from the principle of proportionality has disappeared from the law
only in recent times. Even now for a single grave infraction drastic
sentences are imposed. Anything less than a penalty of greatest severity for
any serious crime is thought then to be a measure of toleration that is
unwarranted and unwise. But in fact, quite apart from those considerations
that make punishment unjustifiable when it is out of proportion to the crime,
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uniformly disproportionate punishment has some very undesirable practical
consequences.
18. After giving due consideration to the facts and circumstances of each
case, for deciding just and appropriate sentence to be awarded for an
offence, the aggravating and mitigating factors and circumstances in which
a crime has been committed are to be delicately balanced on the basis of
really relevant circumstances in a dispassionate manner by the Court. Such
act of balancing is indeed a difficult task. It has been very aptly indicated in
Dennis Councle McGautha v. State of Callifornia: 402 US 183: 28 L.D. 2d
711 that no formula of a foolproof nature is possible that would provide a
reasonable criterion in determining a just and appropriate punishment in the
infinite variety of circumstances that may affect the gravity of the crime. In
the absence of any foolproof formula which may provide any basis for
reasonable criteria to correctly assess various circumstances germane to the
consideration of gravity of crime, the discretionary judgment in the facts of
each case, is the only way in which such judgment may be equitably
distinguished.
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19. In Jashubha Bharatsinh Gohil v. State of Gujarat (1994 (4) SCC 353),
it has been held by this Court that in the matter of death sentence, the Courts
are required to answer new challenges and mould the sentencing system to
meet these challenges. The object should be to protect the society and to
deter the criminal in achieving the avowed object to law by imposing
appropriate sentence. It is expected that the Courts would operate the
sentencing system so as to impose such sentence which reflects the
conscience of the society and the sentencing process has to be stern where it
should be. Even though the principles were indicated in the background of
death sentence and life sentence, the logic applies to all cases where
appropriate sentence is the issue.
20. Imposition of sentence without considering its effect on the social
order in many cases may be in reality a futile exercise. The social impact of
the crime, e.g. where it relates to offences against women, dacoity,
kidnapping, misappropriation of public money, treason and other offences
involving moral turpitude or moral delinquency which have great impact on
social order, and public interest, cannot be lost sight of and per se require
exemplary treatment. Any liberal attitude by imposing meager sentences or
taking too sympathetic view merely on account of lapse of time in respect of
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such offences will be result-wise counter productive in the long run and
against societal interest which needs to be cared for and strengthened by
string of deterrence inbuilt in the sentencing system.
21. In Dhananjoy Chatterjee v. State of W.B. (1994 (2) SCC 220), this
Court has observed that shockingly large number of criminals go
unpunished thereby increasingly, encouraging the criminals and in the
ultimate making justice suffer by weakening the system’s creditability. The
imposition of appropriate punishment is the manner in which the Court
responds to the society’s cry for justice against the criminal. Justice
demands that Courts should impose punishment befitting the crime so that
the Courts reflect public abhorrence of the crime. The Court must not only
keep in view the rights of the criminal but also the rights of the victim of the
crime and the society at large while considering the imposition of
appropriate punishment.
22. Similar view has also been expressed in Ravji v. State of Rajasthan,
(1996 (2) SCC 175). It has been held in the said case that it is the nature and
gravity of the crime but not the criminal, which are germane for
consideration of appropriate punishment in a criminal trial. The Court will
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be failing in its duty if appropriate punishment is not awarded for a crime
which has been committed not only against the individual victim but also
against the society to which the criminal and victim belong. The
punishment to be awarded for a crime must not be irrelevant but it should
conform to and be consistent with the atrocity and brutality with which the
crime has been perpetrated, the enormity of the crime warranting public
abhorrence and it should “respond to the society’s cry for justice against the
criminal”. If for extremely heinous crime of murder perpetrated in a very
brutal manner without any provocation, most deterrent punishment is not
given, the case of deterrent punishment will lose its relevance.
23. These aspects have been elaborated in State of M.P. v. Munna
Choubey [2005 (2) SCC 712].
24. In Bachan Singh v. State of Punjab [1980 (2) SCC 684] a
Constitution Bench of this Court at para 132 summed up the position as
follows: (SCC p.729)
“132. To sum up, the question whether or not death
penalty serves any penological purpose is a difficult,
complex and intractable issue. It has evoked strong,
divergent views. For the purpose of testing the
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constitutionality of the impugned provision as to death
penalty in Section 302, Penal Code on the ground of
reasonableness in the light of Articles 19 and 21 of the
Constitution, it is not necessary for us to express any
categorical opinion, one way or the other, as to which of
these two antithetical views, held by the Abolitionists
and Retentionists, is correct. It is sufficient to say that
the very fact that persons of reason, learning and light
are rationally and deeply divided in their opinion on this
issue, is a ground among others, for rejecting the
petitioners’ argument that retention of death penalty in
the impugned provision, is totally devoid of reason and
purpose. If, notwithstanding the view of the Abolitionists
to the contrary, a very large segment of people, the world
over, including sociologists, legislators, jurists, judges
and administrators still firmly believe in the worth and
necessity of capital punishment for the protection of
society, if in the perspective of prevailing crime
conditions in India, contemporary public opinion
channelised through the people’s representatives in
Parliament, has repeatedly in the last three decades,
rejected all attempts, including the one made recently, to
abolish or specifically restrict the area of death penalty,
if death penalty is still a recognised legal sanction for
murder or some types of murder in most of the civilised
countries in the world, if the framers of the Indian
Constitution were fully aware — as we shall presently
show they were — of the existence of death penalty as
punishment for murder, under the Indian Penal Code, if
the 35th Report and subsequent reports of the Law
Commission suggesting retention of death penalty, and
recommending revision of the Criminal Procedure Code
and the insertion of the new Sections 235(2) and 354(3)
in that Code providing for pre-sentence hearing and
sentencing procedure on conviction for murder and other
capital offences were before Parliament and presumably
considered by it when in 1972-73 it took up revision of
the Code of 1898 and replaced it by the Code of
Criminal Procedure, 1973, it is not possible to hold that
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the provision of death penalty as an alternative
punishment for murder, in Section 302, Penal Code is
unreasonable and not in the public interest. We would,
therefore, conclude that the impugned provision in
Section 302, violates neither the letter nor the ethos of
Article 19."
25. Similarly, in Machhi Singh v. State of Punjab [1983 (3) SCC 470] in
para 38 the position was summed up as follows: (SCC p. 489)
“38. In this background the guidelines indicated in
Bachan Singh's case (supra) will have to be culled out
and applied to the facts of each individual case where the
question of imposing of death sentence arises. The
following propositions emerge from Bachan Singh's case
(supra):
( 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
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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."
26. The position was again reiterated in Devender Pal Singh v. State of
NCT of Delhi [2002 (5) SCC 234 ] : (SCC p. 271, para 58)
“58. From Bachan Singh's case (supra) and Machhi
Singh's case (supra) the principle culled out is that when
the collective conscience of the community 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, the same can be awarded. It was
observed:
The community may entertain such sentiment in
the following circumstances:
( 1 ) When the murder is committed in an extremely
brutal, grotesque, diabolical, revolting, or
dastardly manner so as to arouse intense and
extreme indignation of the community.
( 2 ) When the murder is committed for a motive
which evinces total depravity and meanness; e.g.
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murder by hired assassin for money or reward; or
cold-blooded murder for gains of a person vis-à-
vis whom the murderer is in a dominating position
or in a position of trust; or murder is committed in
the course for betrayal of the motherland.
( 3 ) When murder of a member of a Scheduled
Caste or minority community, etc. is committed
not for personal reasons but in circumstances
which arouse social wrath; or in cases of ‘bride
burning’ or ‘dowry deaths’ or when murder is
committed in order to remarry for the sake of
extracting dowry once again or to marry another
woman on account of infatuation.
( 4 ) 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 particular caste,
community, or locality, are committed.
( 5 ) When the victim of murder is an innocent
child, or a helpless woman or old or infirm person
or a person vis-à-vis whom the murderer is in a
dominating position, or a public figure generally
loved and respected by the community.”
27. If upon taking an overall global view of all the circumstances in the
light of the aforesaid propositions and taking into account the answers to the
questions posed by way of the test for the rarest of rare cases, the
circumstances of the case are such that death sentence is warranted, the
court would proceed to do so.
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28. What is culled out from the decisions noted above is that while
deciding the question as to whether the extreme penalty of death sentence is
to be awarded, a balance sheet of aggravating and mitigating circumstances
has to be drawn up.
29. Lord Justice Denning, Master of the Rolls of the Court of Appeals in
England said to the Royal Commission on Capital Punishment in 1950:
"Punishment is the way in which society expresses its
denunciation of wrong doing; and, in order to maintain
respect for the law, it is essential that the punishment
inflicted for grave crimes should adequately reflect the
revulsion felt by the great majority of citizens for them.
It is a mistake to consider the objects of punishments as
being a deterrent or reformative or preventive and
nothing else... The truth is that some crimes are so
outrageous that society insists on adequate punishment,
because the wrong doer deserves it, irrespective of
whether it is a deterrent or not."
In J.J. Rousseau's The Social Contract written in 1762,
he says the following:
Again, every rogue who criminously attacks social rights
becomes, by his wrong, a rebel and a traitor to his
fatherland. By contravening its laws, he ceases to be one
of its citizens: he even wages war against it. In such
circumstances, the State and he cannot both be saved:
one or the other must perish. In killing the criminal, we
destroy not so much a citizen as an enemy. The trial and
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judgments are proofs that he broken the Social Contract,
and so is no longer a member of the State.
30. The case at hand falls in the rarest of rare category. The depraved acts
of the accused call for only one sentence that is death sentence.
31. The above position was highlighted in Bantu v. The State of U.P.
[2008(10) SCALE 336]
32. The murders were not only cruel, brutal but were diabolic. The High
Court has held that those who were guilty of rape and murder deserve death
sentence, while those who were convicted for murder only were to be
awarded life sentence. The High Court noted that the whole incident is
extremely revolting, it shocks the collective conscience of the community
and the aggravating circumstances have outweighed the mitigating
circumstances in the case of accused persons 1, 2 & 4; but held that in the
case of others it was to be altered to life sentence. The High Court itself
noticed that five members of a family were brutally murdered, they were not
known to the accused and there was no animosity towards them. Four of the
witnesses were of tender age, they were defenseless and the attack was
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without any provocation. Some of them were so young that they could not
resist any attack by the accused. A minor girl of about fifteen years was
dragged in the open field, gang raped and done to death. There can be no
doubt that the case at hand falls under the rarest of rare category. There was
no reason to adopt a different yardstick for A2, A3 and A5. In fact, A3 was
the main person. He assaulted PW1 and took the money from the deceased.
33. Above being the position, the appeal filed by the accused persons
deserves dismissal, which we direct and the State’s appeal deserves to be
allowed. A2, A3 and A5 are also awarded death sentence. In essence all
the six accused persons deserve death sentence.
…………………………………..J.
(Dr. ARIJIT PASASYAT)
…………………………………..J.
(Dr. MUKUNDAKAM SHARMA)
New Delhi,
April 30, 2009
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