Full Judgment Text
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PETITIONER:
EARABHADRAPPA ALIAS KRISHNAPPA
Vs.
RESPONDENT:
STATE OF KARNATAKA
DATE OF JUDGMENT11/03/1983
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
VENKATARAMIAH, E.S. (J)
CITATION:
1983 AIR 446 1983 SCR (2) 552
1983 SCC (2) 330 1983 SCALE (1)254
CITATOR INFO :
R 1985 SC1224 (4)
R 1988 SC1275 (20)
R 1989 SC 79 (10)
R 1989 SC1890 (31)
R 1991 SC 917 (8)
F 1992 SC2045 (20)
ACT:
A. Evidence-Circumstantial evidence-Nature of proof
required for conclusion of guilt and conviction.
B. Indian Evidence Act-Section 27, conditions
prerequisite, therefor- ’Fact’ and "Fact
discovered" explained.
C. Presumption under section 114 of the Indian
Evidence Act-Nature of presumption under
illustration (a) explained.
D. Sentencing and duty of the Court in appropriate
case of conviction- Interference with sentence in
criminal appeal by the Supreme Court-Binding
nature of Article 141 of the Constitution.
HEADNOTE:
The appellant, Earabhadrappa hailing from village
Mattakur, under the false name of Krishnappa and with a
false address obtained employment of service as a domestic
servant under PW 3 Makrappa, the husband of the deceased
Bachamma, who was found murdered by strangulation on the
night between March 21-22, 1979 after having been robbed of
her jewellery, clothes, etc. Based on circumstantial
evidence, the appellant, who was found missing right from
the early hours of the 22nd March, 1979 and who was
apprehended a year later on March 29, 1980, was charged with
and convicted for the offences under Sections 302, 392 IPC
respectively. He was sentenced to undergo rigorous
imprisonment for a term of 10 years under section 392 IPC
and to death under Section 302. In appeal, the High Court
confirmed both the conviction and sentences imposed upon
him. Hence the appeal by special leave. Dismissing the
appeal and modifying the sentence, the Court.
^
HELD: 1.1 To sustain a charge under s. 302 of the
Indian Penal Code,the mere fact that the accused made a
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statement leading to the discovery of the stolen articles
under s. 27 of the Evidence Act, by itself is not
sufficient. There must be something more to connect the
accused with the commission of the offence. The
circumstances relied upon by the prosecution in the instant
case led to no other inference than that of guilt of the
accused as murder and robbery are proved to have been
integral parts of one and the same transaction and therefore
the presumption arising under illustration (a) to s.-114 of
the Evidence Act is that not only the accused committed the
murder of the deceased but also committed robbery of her
gold ornaments which formed part of the same transaction.
The prosecution had led sufficient evidence to connect the
accused with the commission of the crime. [561 G-H]
553
1.2 For the applicability of s. 27 of the Evidence Act,
two conditions are pre-requisite, viz: (1) Information must
be such as has caused discovery of the fact, and (2) The
information must "relate distinctly" to the fact
discovered." Under s. 27, only so much of the information as
distinctly relates to the facts really thereby discovered is
admissible. The word "fact" means some concrete or material
fact to which the information directly relates. [549A, 550B-
C]
Pulukuri Kottayya v. Emperor, LR [1947] IA 65; Jaffer
Hussein Dastgir V. State of Maharashtra, [1970] 2 S.C.R.332,
referred to.
2.1 The nature of presumption under illustration (a) to
s. 114 of the Evidence Act from recent and unexplained
possession must depend upon the nature of the evidence
adduced. As to the meaning of "recent possession", it was
observed: No fixed time limit can be laid down to determine
whether possession is recent or otherwise and each case must
be judged on its own facts. The question as to what amounts
to recent possession sufficient to justify the presumption
of guilt varies according as the stolen article is or is not
calculated to pass readily from hand to hand. The fact that
a period of one year had elapsed between the commission of
the crime and the recovery of the ornaments on a statement
made by the accused leading to their discovery under s. 27
of the Evidence Act immediately upon his being apprehended
by the police, cannot be said to be too long particularly
when the accused had been absconding during that period and
the stolen articles were such as were not likely to pass
readily from hand to hand. There was no lapse of time
between the date of his arrest and the recovery of the
stolen property. The accused had no satisfactory explanation
to offer for his possession thereof. On the contrary, he
denied that the stolen property was recovered by him. The
false denial by itself is an incriminating circumstance. [56
H, 562 A-E]
3. In Bachan singh V. State of Punjab, [1980] 2 SCC
684, the Supreme Court, moved by compassionate sentiments of
human feelings has ruled that sentence of death should not
be passed except in the "rarest of rare" cases. The result
now is that capital punishment is seldom employed even
though it may be a crime against the society and the
brutality of the crime shocks judicial conscience. The test
laid down in Bachan Singh’s case is unfortunately not
fulfilled in the instant case. That being so, the Court is
constrained to commute the sentence of death passed on the
appellant into one for imprisonment for life. [562 F-H, 563
A]
Observation of Dissent
[A sentence or pattern of sentence which fails to take
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due account of the gravity of the offence can seriously
undermine respect for law. It is the duty of the court to
impose a proper punishment depending upon the degree of
criminality and desirability to impose such punishment as a
measure of social necessity as a means of deterring other
potential offenders. Failure to impose death sentence in
such grave cases where it is a crime against society-
particularly in cases of murders committed with extreme
brutality will bring to naught the sentence of death
provided under Section 302 of the Penal Code.] [563 A-B]
554
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
669 of 1982.
Appeal by Special leave from the judgment and order
dated the 29th October, 1981 of the Karnataka High Court in
Crl. Appeal No. 241 of 1981
B.D. Sharma (A.C) for the Appellant.
M. Veerappa and Ashok Kumar Sharma for the Respondent.
The Judgment of the Court was delivered by
SEN, J. Appellant Earabhadrappa @ Krishnappa is under
sentence of death and this appeal by special leave is
directed against the judgment of the High Court of Karnataka
dated October 29, 1981. The Sessions Judge, Kolar by his
judgment dated March 21, 1981 convicted the appellant under
s. 302 of the Indian Penal Code for having committed the
murder of one Smt. Bachamma, wife of P.W. 3 Makrappa and
sentenced him to death. On reference, the High Court has
upheld the conviction of the appellant under s. 302 of the
Indian Penal Code and confirmed the death sentence passed on
him. The appellant has also been convicted by the learned
Sessions Judge under s. 302 of the Indian Penal Code for
having robbed the deceased of her gold ornaments and clothes
and sentenced him to undergo rigorous imprisonment for a
term of 10 years.
Upon the evidence presented at the trial it transpired
that on the night between March 21 and 22, 1979 the deceased
Smt. Bachamma was throttled to death at her house in village
Mallur and relieved of her gold ornaments. On the night in
question, the deceased Smt. Bachamma as usual served dinner
to the family members. After taking his meals, P.W.3 went
upstairs to his bed-room, her mother-in-law P.W.2 Smt.
Bayamma went to the ’Kana’ to keep a vigil while the
deceased slept in the hall adjoining the kitchen and her son
P.W.4 G.M. Parkash slept in the courtyard of the house. The
appellant who had recently been employed as a servant by
P.W. 3 slept in a room on the ground floor where the silk
cocoons used to be reared and kept. On the 22nd morning at
about 6 a.m when P.W.4 went to wake up his mother he found
that she was lying dead and he therefore went upstairs and
called his father P.W.3. They saw that the deceased had been
strangulated to death and relieved of her ornament. Her gold
mangalsutra and gold-rope chain were missing so also the
gold nose-ring and gold ear-rings. On
555
the right side of the bed was lying the screw of the missing
gold nose-ring. There was also lying a towel (M.O. 1)
which had been given by P.W. 3 to the appellant for his use,
and apparently the deceased has been strangulated with the
towel. The iron safe and almirah kept in the hall were found
open and bunch of keys which the deceased carried with her
was found missing. All the jewellery and cash of Rs. 1700/-
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kept in the iron safe and six silk sarees kept in the
almirah were also found missing. There was a search made for
the appellant but he was not to be found either in the house
or in the village and he had therefore absconded with the
jewellery and valuables.
Intelligence report received by P.W. 26 Abdul Mazeed,
Circle Inspector of Police who had taken over the
investigation from P.W. 25 Sreenivasa Rao, Station officer
Shidalaghatta on 28 March 1980 revealed that the appellant
was seen moving in Hosakote and Anekal Taluks and
accordingly P.W. 26 along with his staff searched for the
appellant in both the taluks but he could not be found, and
therefore he encamped at Anekal on that day. On March 29,
1980 he got definite information that the appellant was seen
in village Hosahally in Hosakote Taluk and was able to
apprehend him at that village at about 2 p,m. On being taken
into custody, the appellant made a statement Ex. P-35
leading to the discovery of the ornaments and clothes
belonging to the deceased from several places. He first led
P.W. 26 to the house of his sister P.W. 8 Smt. Yallamma in
village Gudisagarapelly leading to the recovery of four silk
sarees (M. Os. 11 to 14) which were seized under seizure
memo Ex. P-4. From that place, he took him to village
Mattakur, from where he hails, to the house of one Dasappa
leading to the recovery of the screw of the missing gold
nose-ring (M.O. 5) which was seized under seizure memo Ex.
P-7. Thereafter, he took P.W. 26 to the house of P.W. 12
Guruvareddy leading to the recovery of a silk saree (M.O.15)
which was seized under seizure memo Ex. P-5 and then to the
house of P.W. 13 Narayanareddy leading to the recovery of
the gold chain (M.O. 6) and a pair of gold bangles (M.OS. 7
& 8) which were seized under seizure memo Ex. P-6. The very
day he took P.W. 26 to the house of P.W. 15 Chinnamma in
Village Sollepura leading to the recovery of a silk saree
(M.O.10) which was seized under seizure memo Ex. P-8. On the
next day i.e. on the 30th the appellant took P.W. 26 to the
house of P.W. 21 Ramachari in village Hosur who led them to
the shop of P.W. 22 Palaniyachar leading to the recovery of
a pair of gold earrings (M.Os. 3 & 4) and a gold ingot (M.O.
9)
556
which were seized under seizure memo Ex. P-15. The seized
articles have all been identified by P.W. 3 Makrappa and his
mother P.W. 2 Smt. Bayamma and son P.W. 4. G.M. Prakash as
belonging to the deceased.
The appellant abjured his guilt and denied the
commission of the alleged offence stating that he had been
falsely implicated. He also denied that he ever made the
statement Ex. P-35 or that the stolen articles were
recovered as a direct consequence to such statement.
In cases in which the evidence is purely of a
circumstantial nature, the facts and circumstances from
which the conclusion of guilt is sought to be drawn must be
fully established beyond any reasonable doubt and the fact
and circumstances should not only be consistent with the
guilt of the accused but they must be in their effect as to
be entirely incompatible with the innocence of the accused
and must exclude every reasonable hypothesis consistent with
his innocence. The chain of circumstances brought out by the
prosecution are these:
1. The appellant who hails from village Mattakur was
a stranger to village Mallur ostensibly in search
of employment. He falsely stated his name to be
Krishnappa and gave a wrong address stating that
he belonged to a nearby village. The securing of
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employment by giving out false name and wrong
address shows that he had some oblique motive in
his mind. He obtained employment with p.w. 3 and
gained his confidence and was allowed to sleep in
a room on the ground floor where the silk cocoons
were kept. He thus became familiar with the places
where the inmates of the house used to sleep and
where the jewellery, cash and other valuable
belongings used to be kept i.e. in the iron safe
and almirah kept in the hall adjoining the
kitchen.
2. It appears that the appellant had pre-planned the
commission of robbery. Earlier in the evening he
went to P.W. 6 Narayanappa and borrowed Rs. 2 and
thereafter went to the toddy shop of P.W. 7 Smt.
Anasuyamma and took liquor. On the night in
question he reached the ’kana’ at about 9 p.m.
557
and was reprimanded by P.W. 2 for being late. Upon
reaching the house he went upstairs in an
inebriated state and told P.W. 3 that he no longer
wanted to serve and he should settle his accounts.
P.W. 3 told him to come in the morning and take
his wages. It therefore appears that the appellant
had made up his mind to leave the village.
3. On the next morning i.e. on the 22nd at about 6
a.m. it was discovered that the deceased Smt.
Bachamma had been strangulated to death. The gold
ornaments on her person and in the iron safe had
been stolen. There was a search made for the
appellant but he was not to be found anywhere.
Near the dead body of the deceased was lying the
blood-stained towel (M.O. 1) given by P.W. 3 to
the appellant for his use with which the deceased
had apparently been strangulated. The appellant
had therefore absconded from the scene of
occurrence after committing the murder and
robbery.
4. After the appellant had suddenly disappeared from
the house of P.W. 3 with the gold ornaments and
other valuables, there was a frantic search made
by P.W. 25, Sreenivasa Rao and P.W. 26 Abdul
Mazeed at various places and he was absconding
till March 29, 1980 until he was apprehended by
P.W. 26 at village Hosahally in Hosakote taluk at
about 2 p.m. On being arrested after a year of the
incident on March 29, 1980, the appellant made the
statement Ex. P-35 leading to the recovery of some
of the stolen gold ornaments of the deceased and
her six silk sarees from different places and they
have all been identified by P.Ws. 2, 3 and 4 as
belonging to the deceased.
5. The appellant falsely denied the recoveries and
could offer no explanation for his possession of
the stolen articles.
6. It appears from the prosecution evidence that
after the commission of the murder and robbery,
the appellant had with him the incriminating
articles and
558
taken them to his native place Mattakur where he
disposed them of to several persons. The testimony
of P.W. 26 reveals that in consequence of the
information given by the appellant he recovered
the missing screw of the gold nose ring (M.O.5)
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from one Dasappa in village Mattakur, that of
P.W,12 Guruvareddy that appellant had sold to him
the silk saree (M.O.15) for Rs. 150/-, and that of
P.W.13 Narayanareddy discloses that the appellant
had sold to him a gold rope chain (M.O.6) and a
pair of gold bangles (M.Os. 7&8) for Rs. 2000/-,
The testimony of P.W.8, Smt, Yallamma, sister of
the appellant, hailing from village
Gudisagarapally show that the appellant had given
her four silk sarees (M.Os.11 to 14), and that of
P.W.15 Smt. Chinnamma of village Sollepura, who
was known to the appellant from before, shows that
the appellant gave her the silk saree for Re. 1/-
when she refused to take his gratis. The testimony
of P.W. 21 Ramachari of village Hosur shows that
appellant brought with him a pair of gold ear-
rings and a gold ingot and wanted to sell them
saying that he was hard-pressed. This witness took
him to P.W. 22 Palaniyachar and the appellant sold
the gold ingot (M.O.9) for Rs. 330/-and a pair of
gold ear-rings (M.Os. 3&4) for Rs. 500/-.
From this evidence it is apparent that the appellant
while he was absconding moved from place to place trying to
dispose of the stolen property to various persons.
The learned Sessions Judge as well as the High Court
have come to the conclusion that the circumstances alleged
have been fully proved and they are consistent only with the
hypothesis of the guilt of the accused. We are inclined to
agree both with their conclusion and the reasoning. The
chain of circumstances set out above establishes the guilt
of the appellant beyond all reasonable doubt
There is no controversy that the statement made by the
appellant Ex. P-35 is admissible under s. 27 of the Evidence
Act. Under s. 27 only so much of the information as
distinctly relates to the facts really thereby discovered is
admissible. The word ’fact’ means some concrete or material
fact to which the information directly relates. As
559
explained by Sir John Beaumont in Pulukuri Kottaya v.
Emperor (1):
"It is fallacious to treat the ’fact discovered’ within
the section as equivalent to the object produced: the
fact discovered embraces the place from which the
object is produced, and the knowledge of the accused as
to this, and the information given must relate
distinctly to this fact".
For the applicability of s. 27 therefore two conditions
are prerequisite, namely (1) the information must be such as
has caused discovery of the fact; and (2) the information
must ’relate distinctly’ to the fact discovered. In the
present case, there was a suggestion during the trial that
P.W. 26 had prior knowledge from other sources that the
incriminating articles were concealed at certain places and
that statement Ex. P-35 was prepared after the recoveries
had been made and therefore there was no ’fact discovered’
within the meaning of s. 27 of the Evidence Act. We need not
dilate on the question because there was no suggestion made
to P.W. 26 during his cross- examination that he had known
the places where the incriminating articles were kept. That
being so, the statement made by the appellant Ex. P-35 is
clearly admissible in evidence.
In Jaffer Hussein Dastgir v. State of Maharasetra, (2)
the portion of the statement with reference to which this
question arose read as follows:
"I will point out one Gaddi alias Ramsingh of Delhi at
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Bombay Central Railway Station at III Class Waiting
Hall to whom I have given a Packet containing diamonds
of different sizes more than 200 in number."
The only question for decision in that case before the
Court was whether the aforesaid statement made by the
accused was admissible in evidence by virtue of s. 27 of the
Evidence Act, the diamonds having been found with the person
named. In the facts of that case the Court came to the
conclusion that the police had already known that the
diamonds were with the person named by the accused with the
result that there was no fact discovered by the police as a
result of the statement made by the accused. However, it was
held clearly that, but for such knowledge of the police, the
aforesaid statement of the accused would have been
admissible in evidence.
560
In the present case, some of the material portions in
the statement Ex. P-35 which distinctly relate to the fact
discovered read:
"If I am taken to Gudisagarapally, I shall get the four
silk sarees."
At village Gudisagarapally the appellant took P.W. 26
to the house of his sister P.W. 8 Smt. Yallamma who produced
four silk sarees (M.Os. 11 to 14) which were seized under
seizure memo Ex. P-4. P.W. 8 Smt. Yallamma states that she
is the sister of the appellant and that he had given to her
the four silk sarees. It was suggested that the police had
not only planted P.W. 8 as a sister of the appellant but
also the four silk sarees in question, but there is no basis
for this assertion. Then the statement Ex. P-35 recites:
"If I am taken to native place Mattakur, I shall get
one gold nose ring without screw .. one silk saree.....
one gold rope chain and one pair of gold ear rings."
At village Mattakur from where he hails, the appellant
took P.W. 26 to the house of one Dasappa leading to the
recovery of the screw of the missing gold nose ring (M.O. 5)
which was seized under seizure memo Ex. P-7. Thereafter, he
took P.W. 26 to the house of P.W. 12 Guruvareddy leading to
the recovery of a silk saree (M.O. 15) which was seized
under seizure memo Ex. P-5. He then took P.W. 26 to the
house of P.W. 13 Narayanareddy leading to the recovery of a
gold rope chain (M.O. 6) and a pair of gold bangles (MOs.
7&8) which were seized under seizure memo Ex. P-6. The
prosecution could not examine Dasappa because he was dead
during the trial. P.W. 12 stated that the appellant had sold
him a silk saree for Rs. 150 while P.W. 13 stated that he
had sold him a gold rope chain and a pair of gold bangles
for Rs. 2000/-. The statement Ex. P-35 contains similar
recitals leading to the recovery of the other incriminating
articles, viz (1) A silk saree (M.O.10) given by the
appellant to P.W. 15 Smt. Chinnamma of village Sollepura
whom he knew from before, for a token price of Re. 1/ -; (2)
A pair of gold ear rings (M.Os. 3&4) and a gold ingot
(M.O.9) from P.W. 22 Palaniyachar which he had purchased
from the appellant for Rs. 830.
Apart from the question of sentence, two other
contentions are raised, namely: (1) There is no proper
identification that the seized ornaments belonged to the
deceased Smt. Bachamma; and (2) the presumption arising
under illustration (a) to s. 114 of the Evidence
561
Act, looking to the long lapse of time between the
commission of murder and robbery and the discovery of the
stolen articles, should be that the appellant was merely a
receiver of the stolen articles and therefore guilty of an
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offence punishable under s. 411 of the Indian Penal Code and
not that he was guilty of culpable homicide amounting to
murder punishable under s. 302 as well. We are afraid, none
of these contentions can prevail.
Our attention was drawn to the testimony of P.W. 13
Narayanareddy who, during his cross-examination, stated that
ornaments similar to the gold rope chain and the pair of
gold bangles were available everywhere and that other
ornaments were also in his house. From this it is sought to
be argued that the seized ornaments cannot be treated to be
stolen property as they are ordinary ornaments in common
use. Nothing really turns on this because P.W. 2 Smt.
Bayamma, mother-in-law of the deceased, her husband P.W. 13
Makarappa and son P.W. 4 G.M. Prakash have categorically
stated that the seized ornaments belonged to the deceased
Smt. Bachamma. There is no reason why the testimony of these
witnesses should not be relied upon particularly when P.W. 2
Smt. Baymma was not cross-examined at all as regards her
identification of the seized ornaments and clothes as
belonging to the deceased. Even if the seized ornaments
could be treated to be ornaments in common use, this witness
could never make a mistake in identifying the seized six
silk sarees (M.Os. 10 to 15). It is a matter of common
knowledge that ladies have an uncanny sense of identifying
their own belongings, particularly articles of personal use
in the family. That apart, the description of the silk
sarees in question shows that they were expensive sarees
with distinctive designs. There is no merit in the
contention that the testimony of these witnesses as regards
the identity of the seized articles to be stolen property
cannot be relied upon for want of prior test identification.
There is no such legal requirement.
This is a case where murder and robbery are proved to
have been integral parts of one and the same transaction and
therefore the presumption arising under illustration (a) to
s. 114 of the Evidence Act is that not only the appellant
committed the murder of the deceased but also committed
robbery of her gold ornaments which form part of the same
transaction. The prosecution has led sufficient evidence to
connect the appellant with the commission of the crime. The
sudden disappearance of the appellant from the house of
P.W.3 on the morning of March 22, 1979 when
562
it was discovered that the deceased had been strangulated to
death and relieved of her gold ornaments, coupled with the
circumstance that he was absconding for a period of over one
year till he was apprehended by P.W. 26 at village Hosahally
on March 29, 1980, taken with the circumstance that he made
the statement Ex. P-35 immediately upon his arrest leading
to the discovery of the stolen articles, must necessarily
raise the inference that the appellant alone and no one else
was guilty of having committed the murder of the deceased
and robbery of her gold ornaments. The appellant had no
satisfactory explanation to offer for his possession of the
stolen property. On the contrary, he denied that the stolen
property was recovered from him. The false denial by itself
is an incriminating circumstance. The nature of presumption
under illustration (a) to s. 114 must depend upon the nature
of the evidence adduced. No fixed time limit can be laid
down to determine whether possession is recent or otherwise
and each case must be judged on its own facts. The question
as to what amounts to recent possession sufficient to
justify the presumption of guilt varies according as the
stolen article is or is not calculated to pass readily from
hand to hand. If the stolen articles were such as were not
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likely to pass readily from hand to hand, the period of one
year that elapsed cannot be said to be too long particulary
when the appellant had been absconding during that period.
There was no lapse of time between the date of his arrest
and the recovery of the stolen property.
Finally, there remains the question of sentence, it was
cruel hand of destiny that the deceased Smt. Bachamma met a
violent end by being strangulated to death by the appellant
who betrayed the trust of his master p.w. 3 and committed
her pre-planned cold-blooded murder for greed in achieving
his object of committing robbery of the gold ornaments on
her person and in ransacking the iron safe and the almirah
kept in her bedroom on the fateful night. The appellant was
guilty of a heinous crime and deserves the extreme penalty.
But we are bound by the rule laid down in Bachan Singh v.
State of Punjab (1) where the Court moved by compassionate
sentiments of human feelings has ruled that sentence of
death should not be passed except in the ’rarest of the
rare’ cases. The result now is that capital punishment is
seldom employed even though it may be a crime against the
society and the brutality of the crime shocks the judicial
563
conscience. A sentence or pattern of sentence with fails to
take due account of the gravity of the offence can seriously
undermine respect for law. It is the duty of the Court to
impose a proper punishment depending upon the degree of
criminality and desirability to impose such punishment as a
measure of social necessity as a means of deterring other
potential offenders. Failure to impose a death sentence in
such grave cases where it is a crime against the society
particularly in cases of murders committed with extreme
brutality-will bring to naught the sentence of death
provided by s. 302 of the Indian Penal Code. The test laid
down in Bachan Singh’s case (supra) is unfortunately not
fulfilled in the instant case. Left with no other
alternative, we are constrained to commute the sentence of
death passed on the appellant into one for imprisonment for
life.
Subject to this modification in the sentence, the
appeal fails and is dismissed.
S. R. Appeal dismissed.
564