Full Judgment Text
Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal Nos. 88-89 of 2019
(Arising out of SLP (Crl.) Nos.5422-5423 of 2013)
RAJU JAGDISH PASWAN .... Appellant(s)
Versus
THE STATE OF MAHARASHTRA ….Respondent(s)
J U D G M E N T
L. NAGESWARA RAO, J.
Leave granted.
1. The issue that arises in these Appeals is whether the death
penalty imposed on the Appellant is disproportionate to the
crime committed by him.
2. At 20.45 hrs on 21.06.2010, Hanmant Sheshrau Shirsat
gave a statement in the Miraj Rural Police Station that his
th
daughter who was 9 years old and studying in the 4 standard at
Shri Samarth Ashram School, Bedag was missing since 10.00 am.
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2019.01.22
17:10:30 IST
Reason:
He stated that he could not find his daughter when he went to
the school to bring her home at 5.15 pm on that day. He was
1
informed by her class teacher that his daughter did not come to
school. Shirsat started searching for his missing daughter.
Akash (PW-4), a boy residing behind Marguaai Temple and his
sister Pooja gave information that Shirsat’s daughter was taken
by a person wearing black pant and black shirt to the sugarcane
field ahead of Odya village. Shirsat accompanied the police in
the search for his daughter in the sugarcane field where they
found her school record book. On further inquires made in the
village, Sidram Sakharam Khade (PW-13) who owns a provision
store at Bedag informed that he spotted a person wearing black
clothes who came to his shop to buy tobacco. The villagers and
the police reached Balakrishna Poultry Farm and inquired about
the person wearing black clothes. It is relevant to state that
Shirsat is also working in Balakrishna Poultry Farm. The
Appellant initially denied any knowledge about the missing girl.
However, on further interrogation by the police, he revealed that
the girl was dragged to the nearby sugarcane field by closing her
mouth tightly to stop her from screaming. He forcibly raped her
and then pushed her into a nearby well. A search was
conducted to find the body from the well which was
2
unsuccessful. The police summoned an experienced diver Balu
Mahadeo Patil (PW-5) who took out the dead body from the well.
Shirsat identified the dead body to be that of his daughter. An
FIR was registered under Section 302, 376, 201 of the Indian
Penal Code, 1860 (hereinafter ‘IPC’). Postmortem was
conducted by PW-3 Dr. Sunil Patil and PW-9 Dr. Juber Momin.
They have stated in their evidence that froth was coming out of
the mouth of the deceased and there was nasal bleeding as well.
They found cutis anserina on both palms and sole of the feet.
They also found that the mucosa of vagina was congested and
redness present over mucosa of anus with congestion. There
was a recent complete rupture of hymen. Some sticky liquid was
coming out of the mouth of the deceased. All the injuries were
found to be ante-mortem. The Doctors deposed that there was
evidence of vaginal as well as anal intercourse. The cause of
death was stated to be drowning.
3. After examining the evidence on record, the trial court
convicted the Appellant under Sections 302, 376 (2) (f) and 201
IPC. The trial court considered the following aggravating and
3
mitigating circumstances before sentencing the Appellant :
“i. Accused was serving in the same factory where the victim's
father was serving and residing in the same factory premises.
ii. There is strong circumstance of accused knowing the school
timing of the victim and the fact that she used to go to school
alone, which is far away from factory premises.
iii. The road from village to factory has less traffic.
iv. The girl was taken from Marguaai Temple to the sugarcane
field. The distance is approximately 1 km.
v. The height of the sugarcane in the field can be seen from
the photographs on record. It makes the inside things not visible
from the road going nearby.
vi. Accused had natural as well as unnatural sexual intercourse
with the girl, which resulted in the girl becoming unconscious.
vii. Accused had pressed her mouth and nose in such a way
that froth had come out of her mouth and there was nasal
bleeding.
viii. Accused had then taken the girl in unconscious state to the
well at a distance of 150 sq.ft. away from the place of rape and
then thrown her into the well.
ix. The throwing of the girl in unconscious state in the well was
with knowledge or reasonably given knowledge that death will
occur. The said act was done in order to screen himself.
x. There was no enmity between informant accused.
xi. No reasonable ground has been shown for alleged false-
implication.
xii. The defence of false implication is unbelievable and
unsustainable. Informant was not any way connected to any
political party, who had conducted agitation against Bihari
persons.
xiii. The minor child was helpless when the accused committed
the cruel act.
xiv. The girl was aged 9 years only and was innocent.
xv. The girl was required to go through the torture as is evident
4
from medical evidence.
The mitigating circumstances are almost nil. If at all they are to
be searched then they are-
(i) Age of the accused is 22 years.
(ii) Case rests on circumstantial evidence.”
4. By holding that the Appellant does not deserve any leniency
in view of the heinous crime committed by him, the trial court
sentenced the Appellant to be hanged by neck till his death for
an offence under Section 302 IPC. The Appellant was also
convicted for an offence punishable under Section 376(2)(f)
of IPC and sentenced for life and under Section 201 IPC for an
imprisonment of 7 years.
5. The trial court made a reference to the High Court for
confirmation of the death sentence awarded to the Appellant in
accordance with Section 366 CrPC. After re-appreciation of the
evidence on record, the High Court affirmed the conviction of the
Appellant under Sections 302, 376 (2)(f) and 201 IPC. The High
Court held that the Appellant was responsible for the horrendous
crime of rape and murder of a 9 year old girl. The High Court
observed that the Appellant threw the victim in the well while
5
she was still alive and the victim died due to drowning. By
observing that the Appellant did not show any compunction,
regret or remorse after committing a gruesome and heinous act
on a hapless child, the High Court was of the opinion that no
leniency could be shown to the Appellant. A detailed
examination of the aggravating and mitigating circumstances
was carried out by the High Court before confirming the sentence
of death imposed by the trial court for an offence under Section
302 IPC.
6. Notice was issued in this case on 08.07.2013 limited to the
sentence. We have heard the learned counsel for the Appellant
and the State on the justifiability of the sentence of death.
The learned counsel for the Appellant took us through the
evidence on record to support his submission that the entire case
rests on circumstantial evidence and the circumstances proved
do not warrant death penalty.
7. The maintenance of peace, order and security is one of the
oldest functions of the civil society. The imposition of penal
sanctions on those who have infringed the rules by which a
6
society has bound itself are a matter of legitimate interest to the
1
members of the society. Punishment is the just desert of an
offender. The society punishes not because it has the moral
right to give offenders what they deserve, but also because
punishment will yield social useful consequences: the protection
of society by incapacitating criminals, the rehabilitation of past
2
offenders, or the deterrence of potential wrongdoers.
The purposes of criminal sentencing have traditionally been said
to be retribution, deterrence and rehabilitation. To these there
may now perhaps be added: incapacitation (i.e. putting it out of
the power of the offender to commit further offences) and the
3
maintenance of public confidence.
8. The punishment prescribed under Section 302 IPC for
committing a murder is death or imprisonment for life. This
4
Court in Jagmohan Singh v. State of Uttar Pradesh turned
down the challenge to Section 302 IPC which prescribes the
sentence of death for murder. It became necessary for this Court
1 Tom Bingham, The Business of Judging Selected Essays & Speeches (Oxford United Press,
2005), p. 299
2 Bruce W. Gilchrist, “Disproportionality in Sentences of Imprisonment “, Columbia Law Review,
Vol. 79, No.6 (Oct., 1979), pp. 1119-1167
3 Tom Bingham, The Business of Judging Selected Essays & Speeches (Oxford United Press,
2005), p. 302
4 (1973) 1 SCC 20
7
to reconsider the validity of Section 302 IPC in view of certain
findings of Justice V.R. Krishna Iyer, speaking for the majority in
5
Rajendra Prasad v. State of U.P. being contrary to the
judgment of the Constitution Bench in Jagmohan’s case (supra).
6
This Court in Bachan Singh v. State of Punjab concluded that
Section 302 providing death penalty for the offence of murder is
constitutional. Another question regarding the sentencing
procedure provided in Section 354(3) of the Code of Criminal
Procedure, 1973 (CrPC) being unconstitutional in view of the
unguided and untrammelled discretion of the court was considered
in Bachan Singh’s case (supra). According to Section 354(3)
CrPC, when the conviction is for an offence punishable with death
or, in the alternative with imprisonment for life or imprisonment for
a term of years, the judgment shall state the reasons for the
sentence awarded, and, in the case of sentence of death, the
special reasons for such sentence. It was held that imprisonment
for life shall be the normal punishment for murder according to the
changed legislative policy after introduction of Section 354(3) CrPC
and death sentence an exception. It was further held that the
sentencing discretion conferred on the courts cannot be said to be
5 (1979) 3 SCC 646
6 (1980) 2 SCC 684
8
untrammelled or unguided. The discretion has to be exercised
judiciously in accordance with well-recognized principles
crystallised by judicial decisions after balancing all the aggravating
and mitigating circumstances. What is the relative weight to be
given to the aggravating and mitigating factors depends on the
facts and circumstances of the case. More often than not, the
aggravating and mitigating factors are so intertwined that it is
7
difficult to give a separate treatment to each of them. A planned
murder involving extreme brutality or exceptional depravity and the
murder of any member of the armed forces or police force or a
public servant were a few circumstances which were categorized as
aggravating. The age of the accused, possibility of reformation and
rehabilitation of the accused, probability that the accused would
not indulge in a criminal act in future, the extreme mental or
emotional disturbance due to which the offence was committed,
the duress or domination of another person under which the
accused committed the offence and the mental unsoundness or
incapacity were listed as some of the mitigating circumstances.
Every relevant circumstance relating to the crime as well as the
criminal has to be considered before imposing a sentence of death
7 Bachan Singh (supra) ¶197, 201
9
under Section 302 IPC. This Court in Bachan Singh’s case (supra)
ultimately concluded that life imprisonment is the rule and death
sentence is an exception for persons convicted of murder. Taking a
life through law’s instrumentality can be done only in the rarest of
rare cases when the alternative option is unquestionably
8
foreclosed. The application of the rule of the rarest of
rare in Bachan Singh (supra) was considered by this Court in
9
Machhi Singh & Ors. v. State of Punjab . It was held that the
manner and motive for commission of murder, magnitude of the
crime, anti-social or abhorrent nature of the crime and the
personality of the victim of murder are certain factors which have
to be taken into account for deciding whether a case would fall in
the category of the rarest of rare cases.
9. The Appellant dragged a girl of nine years into a sugarcane
field, raped her and dumped her in a well. The cause of death
according to the medical evidence was signs of recent sexual
intercourse with death due to drowning. There is no doubt that
the murder involves exceptional depravity which is one of the
aggravating circumstances. The manner of commission of the
8 Ibid.¶209
9 (1983) 3 SCC 470, ¶¶ 33-37
10
crime is extremely brutal. However, we are of the considered
opinion that the Appellant does not deserve the sentence of death
in view of the following mitigating circumstances:
a) On a thorough examination of the offence, we are unable
to accept the prosecution version that the murder was
committed in a pre-planned manner.
b) The Appellant was a young man aged 22 years at the
time of commission of the offence.
c) There is no evidence produced by the prosecution that
the Appellant has the propensity of committing further crimes,
causing a continuing threat to the society.
d) The State did not bring on record any evidence to show
that the Appellant cannot be reformed and rehabilitated.
10. In view of the above, we are unable to agree with the courts
below that the sentence of death is appropriate in this case.
Applying the guidelines laid down by this Court for sentencing an
accused convicted of murder and being mindful that a death
sentence can be imposed only when the alternative option is
unquestionably foreclosed, we are of the opinion that this case
does not fall within the rarest of rare cases.
11. Punishment should be proportionate to the offence. A savage
sentence is an anathema to the civilised jurisprudence
11
10 11
of Article 21. In Solem v. Helm , the U.S. Supreme Court held
that the general principle of proportionality was applicable to a
sentence of imprisonment. Helm was sentenced under the
Recidivist Statute of South Dakota to undergo imprisonment for life
without possibility of parole after being found guilty of uttering a
“no account” check for US $ 100. The gravity of the offence and
the harshness of the penalty was one of the criteria to be taken into
account by the court in its proportionality analysis. Sentence of life
imprisonment awarded to Helm was found to be disproportionate to
th
the crime and hence prohibited under the 8 Amendment to the
U.S. Constitution. Imposition of capital punishment for rape of an
adult woman was found to be ‘grossly disproportionate’ and a
violation of the ‘cruel and unusual punishments’ clause in Coker v.
12
Georgia . In another case, the sentence of death penalty on a
participant in a felony which resulted in murder, without any inquiry
into the participant’s intention to kill, was held to be violative of the
th
8 Amendment to the U.S. Constitution because of
13
disproportionality. The U.S. Supreme Court treated this line of
authority as an aspect of the death penalty jurisprudence rather
10 (1983) 2 SCC 277, at 284
11 463 U.S. 277 (1983)
12 433 U.S. 584 (1977)
13 Enmund v. Florida 458 U.S. 782 (1982)
12
th
than a generalizable aspect of the 8 Amendment to the
14
U.S. Constitution. Justice Scalia who delivered the plurality opinion
15
in Harmelin v. Michigan reasserted that the proportionality
review is applicable to cases involving death sentence. The
principle of proportionality has been recognized by this Court in
16
Vikram Singh @ Vicky v. Union of India wherein it was stated
that punishment must be proportionate to the nature and gravity of
offences.
12. Though imprisonment for life is a sentence for the rest of the
convict’s life, in practice, it amounted to 12 years imprisonment
prior to the introduction of Section 433-A, CrPC. After the insertion
of Section 433-A, CrPC, imprisonment for life works out to 14 years.
17
In Swamy Shraddananda’s case , it was held that the court is
empowered to substitute a death sentence by life imprisonment of
a term in excess of 14 years and further directed that the convict
must not be released from the prison for the rest of his life or for
the actual term specified in the order, as the case may be. While
not endorsing the death sentence that was imposed on Swamy
Shraddananda, this Court found that since life imprisonment,
14 Rummel v. Estelle, 445 U.S. 263 (1980)
15 501 U.S. 957 (1991)
16 (2015) 9 SCC 502, ¶52.1
17 Swamy Shraddananda @ Murali v. State of Karnataka (2008) 13 SCC 767.
13
subject to remission, normally worked out to 14 years, it would be
grossly disproportionate and inadequate. The view expressed in
Swamy Shraddananda’s case (supra) was upheld in Union of
18
India v. Sriharan and Others by a Constitution Bench.
13. Though we have already expressed our view that the
Appellant does not deserve to be put to death, he is not entitled to
be released on completion of 14 years while serving life
imprisonment. The brutal sexual assault by the Appellant on the
hapless victim of nine years and the grotesque murder of the girl
compels us to hold that the release of the Appellant on completion
of 14 years of imprisonment would not be in the interest of the
society. Considering the gravity of the offence and the manner in
which it was done, we are of the opinion that the Appellant
deserves to be incarcerated for a period of 30 years. To arrive at
this conclusion, we have taken into consideration the opinion of
19
this Court in similar cases - Tattu Lodhi v. State of M.P. ,
20 21
Selvam v. State , Rajkumar v. State of MP , Neel Kumar @
22
Anil Kumar v. State of Haryana , Anil @ Antony v. State of
18 (2016) 7 SCC 1
19 ( 2016) 9 SCC 675 (25 yrs)
20 (2014) 12 SCC 274 (30 yrs)
21 (2014) 5 SCC 353 (30 yrs)
22 (2012) 5 SCC 766 (30 yrs)
14
23
Maharashtra .
14. In the case of Rajendra Prasad (supra), the Court had
suggested as follows:
“114. Social defence against murderers is best insured in the
short run by caging them but in the long run, the real run, by
transformation through re-orientation of the inner man by many
methods including neuro-techniques of which we have a rich
legacy. If the prison system will talk the native language, we have
the yogic treasure to experiment with on high-strung, high-risk
murder merchants. Neuroscience stands on the threshold of
astounding discoveries. Yoga, in its many forms, seems to hold
splendid answers. Meditational technology as a tool of
criminology is a nascent-ancient methodology. The State must
experiment. It is cheaper to hang than to heal, but Indian life —
any human life — is too dear to be swung dead save in extreme
circumstances.”
Taking note of the above suggestion, we asked
Mr. Katneshwarkar, learned counsel for the State of Maharashtra, as
to what steps were taken by the State for reformation and
rehabilitation of the prisoners. An affidavit signed by the Deputy
Inspector General of Prisons (Headquarters), Maharashtra was
circulated on 27.11.2018 in which it was stated that Circulars were
issued to all the Jail Superintendents to start Yoga and meditation
classes for improvement of physical and mental health of the
inmates in the penitentiaries. It was also stated that the
Maharashtra Prison Department has started a programme namely
23 (2014) 4 SCC 69 (30 yrs)
15
“Prerna Path” for which persons like Shri Ram Dev Baba and others
were invited to Yerwada Central Prison, Pune for motivating the
prisoners to participate in the programmes of Yoga. It was further
stated that the Department was encouraging the prisoners to
participate in Yoga and meditation and was even giving to prisoners
who excelled in Yoga.
15. In spite of our direction, the Government of India did not file
an affidavit regarding the status of rehabilitation of prisoners in Jails
in this country. As there was no response from the Government of
India, we did our own research to find out about the reform and
rehabilitation measures. An All India Model Prison Manual
Committee was constituted in the month of November, 2000 under
the Chairmanship of Director General of Bureau of Police Research
and Development (BPR&D) to prepare a Model Prison Law for the
superintendence and management of prisons in India in order to
maintain uniformity in the working of prisons throughout the
country. The Model Prison Manual of 2016 (“2016 Manual”) which
was approved by the Ministry of Home Affairs refers to the
education of prisoners which is vital for the overall development of
prisoners. Para 14.06 of the Chapter 14 in the 2016 Manual deals
with the nature of educational programmes which includes physical
16
education such as Yoga, health/hygiene education, moral and
spiritual education among others. We do not have any material on
record about how many States have adopted the 2016 Manual.
We direct the States to consider implementing the reformative and
rehabilitation programmes contained in the 2016 Manual.
In addition, it is open to the States to adopt any other correctional
measures.
16. Accordingly, the Appeals are partly allowed and the sentence
of death is set aside. The Appellant shall suffer an imprisonment
for a period of 30 years without remission.
..….……….............................J.
[S.A.BOBDE]
….....................................…...J
[L. NAGESWARA RAO]
.….........................................J
[R. SUBHASH REDDY]
New Delhi,
January 17, 2019.
17