Jammu & Kashmir High Court – Srinagar Bench
Mohammad Sadiq Mir (Alias) Sada Age 38 … vs State Of Jammu And Kashmir on 15 October, 2024
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
h475
HIGH COURT OF JAMMU & KASHMIRAND LADAKH
AT SRINAGAR
CRA No.4/2015
c/w
Cr. Ref No.1/2015
OWP No.1060/2016
Reserved on: 23.08.2024
Pronounced on:15.10.2024
1. Mohammad Sadiq Mir (Alias) Sada Age 38 Yrs.
S/O Abdul Rehman Mir
R/O Langate Kashmir
2. Jehangir Ansari Age 27 Yrs.
S/O Siraj-ud-din -
R/O Nawada District Jungoo West Bengal
3. Azhar Ahmad Mir (Alias) Billa) Age 23Yrs.
S/O Gh. Mohammad Mir
R/O Shatapora Langate Kashmir
4. Suresh Kumar Sasi (Alias Mouchi) Age.66Yrs.
S/O Sultan Ram Sasi
R/O Tmkoor Rajasthan at present Hakeeman Wali
Bang1a Basti Gandha Nalla Boot Polish Wali Jompdi
Amritsar Punjab
....Appellants(s)
Through:- Mr. Ateeb Kanth, Advocate
VERSUS
State of Jammu and Kashmir ......... .....Respondents(s)
Through:-Mr. Mubeen Wani, Dy. AG
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE M.A.CHOWDHARY, JUDGE
JUDGMENT
Sanjeev Kumar J
1. This appeal by four persons [“appellants”] is directed against
judgment dated 18th April, 2015 passed by the learned Sessions
Mohammad Altaf Bhat
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Judge (PDJ), Kupwara [“trial Court”] in file No.60/Session titled
State v. Mohamad Sadiq Mir alias Sada Choor and
others[“impugned judgment”], whereby the trial Court has
convicted all the appellants for offences punishable under Sections
341, 363, 376(2)(g), 302 and 34 RPC and order dated 24th April,
2015 passed by the trial Court, whereby they were sentenced to
death for commission of offence punishable under Sections
302/34 RPC as also to simple imprisonment of one month for
offence under Section 341/34 RPC and rigorous imprisonment of
seven years and ten years for offences punishable under Section
363/34 RPC and 376(G)/34 RPC respectively.
2. The trial Court after recording conviction and sentencing the
appellants as accused, in view of the quantum of sentence also
made a Criminal Reference, seeking confirmation of the same by
this Court.
3. Before we advert to the grounds of challenge urged by the learned
counsel for the appellants, we deem it necessary to set out material
facts culled out from the prosecution case, as was laid before the
trial Court.
3.1 As per the prosecution case, the occurrence in which a hapless
minor girl was gang raped and killed took place on 20th July,
2007. It is on the same day, the Police Station, Handwara,
received an information from reliable source that some unknown
Mohammad Altaf Bhat
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persons have raped a minor girl ‘X’ in orchards near Batapora
Wuder. The rape was committed upon her when she was on her
way from school to her home. The police was informed that the
person/persons involved in raping the girl had also killed her by
slitting her throat and that the dead body of the girl had been kept
in the bushes under the heaps of earth. On receipt of this
information, the police immediately swung into action and
registered FIR No.152/2007 in the Police Station and set the
investigation process in motion.
3.2 During investigation, the dead body of the girl ‘X’ was recovered
in presence of her heirs near water stream (Wyeth) at Batapora
Wuder. The police found that the dead body of ‘X’ had been
thrown in a small stream and kept hidden under gross and heaps
of earth. The dead body was recognized by PW-1, the brother of
‘X’ and PW-3 Latief Ahmad Shah. The site of occurrence was
sealed and the circumstantial evidence existing on spot was
collected. On examining the dead body of ‘X’, it was found that
the left side of her throat was slit and the blood had oozed out
from the wounds and coagulated. The blood had come down from
the left breast which, too, had coagulated. From the site of
occurrence, green gross and one Coca Cola bottle of 500 ml was
also seized. The police called the medical team, Magistrate and
FSL unit Kupwara on spot. The dead body of ‘X’ was taken for
postmortem and medical examination. Specimen of blood and
Mohammad Altaf Bhat
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blood soaked clay were obtained from the site of occurrence and
seized on spot. The undershirt of ‘X’, which was lying near the
slit wound and had absorbed a lot of blood and scarf (dupatta),
which was also having clots of blood as also a white trouser which
was torn and was having semen stains on it were also seized from
the spot and preserved. The requisite seizure memos were
prepared by the police on spot. With the help of photographer the
site of occurrence was photographed from different angles. The
medical team conducting postmortem found some sawdust on
nostrils, mouth and face of the deceased-‘X’, which was also
sealed in small jars. The hair samples from the private parts were
also obtained and sealed in small boxes. These samples were
picked up by Lady Doctor Fareeda and handed over to the police
for obtaining expert opinion. The dead body after postmortem was
handed over to the next of kin of the deceased.
3.3 Apart from the aforesaid proceedings conducted by the police on
spot, the police also found a bag, hair clip, a watch and school
shoes of the deceased from the site of occurrence and its
surroundings. Besides, a wine bottle and some glass tumblers
were also recovered. These articles were found scattered near the
site of occurrence. The police saw two foot prints on spot, which
were photographed. With the assistance of FSL team, the
specimen samples of finger prints were obtained from the wine
bottle and the glass tumblers and sent to FSL for examination. The
Mohammad Altaf Bhat
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foot prints were also preserved by obtaining a mould and seized
by the police. The school bag which contained books of 8th class,
note books and two brogues of Uqaab Public School, Langate
was seized along with the articles contained therein.
3.4 During the postmortem, it was found by the medical team that
there was evidence of ‘X’ having been subjected to rape by more
than one person. The opinion prepared by the medical team was
submitted to the Investigating Officer after postmortem. From the
opinion of the medical team, it transpired that ‘X’, a school going
girl, had been subjected to rape by more than one person and with
a view to hiding their brutal act, the perpetrators of the crime had
killed her and kept her dead body hidden.
4. Since there was no eye witness to the crime, as such, the
investigation team rounded up some vagabonds of the area, with
previous criminal background for questioning. The persons, who
were rounded up by the police included some drug addicts and
two non-State subjects. During sustained investigation and
questioning, one of the appellants namely Sadiq Mir admitted his
complicity in the crime and disclosed to the police that he along
with appellants Azher Mir @ Billa, a carpenter namely, Jehangir
Bihari and a cobbler/(Mochi) Suresh had waylaid ‘X’ and dragged
her from the road towards the lower side towards Wuder. He
confessed that they dragged her through the maize fields and in
order to prevent her from raising hue and cry, appellant Jehangir
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gagged her mouth with his shirt. He also confessed before the
police that it was appellant-Jehangir, who committed rape upon
‘X’ followed by appellant- Azher, thereafter Suresh and he was
the last one. He further disclosed that they all were of the view
that in case their act of raping the minor girl would come to light,
it would be difficult for them to live in the society, they therefore,
in consultation with each other and in pursuance of the unanimous
decision taken by them took ‘X’ to nearby small stream where the
appellant-Jehangir slit her throat with his knife. Thereafter, they
covered the dead body with earth and put some grass so that the
dead body was not visible. They, after having finished their act,
returned through other route. He also made a disclosure statement
that the weapon of offence had been concealed by him in his
Raida type shop. On the disclosure of appellant-Sadiq Mir,
discovery memo was prepared and at his instance one knife
having blood stains on it was recovered. The image of the weapon
of offence was obtained on the recovery memo and the weapon of
offence after conducting photography and videography was
sealed. In view of the disclosure made by the appellant-Sadiq Mir,
Sections 341, 376(2)(g), 363 and 34 RPC were added on, against
the appellants. They were, accordingly, arrested and their relatives
informed accordingly.
4.1 As the prosecution case goes, wearing apparels, which the accused
were wearing on the date of occurrence were also seized and
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sealed. Except Appellant Sadiq Mir, other appellants had hidden
those clothes, which, on their disclosures, were recovered by the
police from their staying places/houses. Appellant-Suresh had kept
his clothes concealed under the stones lying in the courtyard of his
rented accommodation. The clothes, which the appellant-Sadiq
Mir was wearing, were also seized and planda prepared. The
chappal of all the fours appellants which included plastic chappal
of Sadiq Mir and Suresh were also seized and sealed. The leather
chappal of Jehangir and hawaie chappel of Azher Mir were also
seized and sent to FSL.
4.2 During the course of investigation, the appellants were also
subjected to medical examination. The doctors, who examined the
appellants, opined that there were scratches found on the bodies of
the appellants and these scratches had been suffered by the
appellant on the date of occurrence. Being sure about the
involvement of the appellants in the commission of offence, the
police separately interrogated all the appellants. During their
investigation, it came to be divulged that on 19 th July, 2007, the
appellants having hatched a conspiracy and with common
intention of committing the crime had decided to come to
Batapora Wuder on Friday when the movement of the people is
very less due to Friday prayer. They decided to have a party in the
Wuder and procure some girl for satisfying their sexual desire. It
was also decided by them beforehand that in case they found some
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resistance they would remove the same. The appellant Sadiq Mir
took his horse along with him towards the Wuder area and in that
garb examined the spot on that day. Thereafter the other three
appellants dragged ‘X’ from the road, gagged her mouth and took
her to the Wuder where they committed gruesome crime.
4.3 During investigation, one horse multi coloured belonging to the
appellant-Sadiq Mir was also seized and given on supardnama. An
Aaqnama (deed of disinheritance) in respect of appellant-Sadiq
Mir was produced before the police by his brother, in terms
whereof, the father of the appellant-Sadiq Mir had disinherited
him from his property because of his bad character and mis-deeds.
It also came to light that appellant-Sadiq Mir had earlier also
attempted to commit rape some years back. There were three FIRs
already registered against him for different crimes. Similarly,
Ghulam Mohamad Mir, the father, was also fed up with the
activities of his son, appellant-Azher Mir. The appellant-Azher
Mir had also tried to molest PW-36 a few days before the
occurrence and the matter was under consideration of the locals
(Ahli Baradari). The appellant-Azher Mir was also facing charges
in FIR Nos.107 and 115 of 2005, pending trial before the
competent Court of law. In short, the police found that the
appellants-Mohd. Sadiq Mir and Azher Ahmad Mir were history-
sheeters and bad charactered persons. When the instant crime
came to light and the appellant-Azher Mir was found involved, his
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farther published in the daily newspaper “Mashrik” a news item,
under the title “Mairay Betay ko Phancy do”(hang my son). The
police conducted other part of the investigation and recorded the
statements of each witness to the circumstances and relevant facts
leading to the conclusion that the gruesome crime, which took
away the life of a minor girl ‘X’, was committed by the appellants
and none other.
4.4. The sawdust and some pieces of kailwood were seized from the
house of Abdul Gani Mir, where the appellant- Jahangir was
doing carpentry work, for expert opinion. The blood groups of all
the appellants were also taken. The pubic hairs of the appellants
were obtained by the doctors and the same were sealed by affixing
a ring on them. After preparing the planda these were sent to FSL,
Srinagar for opinion. The appellants also took blood samples from
the appellants in presence of the Magistrate for conducting DNA
profiling. This was one with the help of medical team. These
blood samples obtained from the appellants along with the seized
blood soaked under-shirt and the torn trouser of ‘X’ were sent to
FSL Chandigarh for DNA profiling and expert opinion.
4.5 From the opinion of the FSL, Srinagar, it was proved that the
sawdust which had been collected from the eyes, nostrils and
mouth of ‘X’ by the medical team and the sawdust which was
picked up from the shirt of appellant-Jehangir Mir as also obtained
from the house of Gani Mir were similar in characteristics and was
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of the same type. The blood found on the weapon of offence and
the blood found on the scarf and the clay picked up from the spot
of occurrence was found human blood having “B” Group. The
pubic hair, which were obtained during postmortem by the
medical team from the private parts of the deceased, were found
matching with the pubic hairs of appellant No.1 Mohd. Sadiq Mir.
The chappals and moulds were also found similar and matching
with the left chappal of appellant-Suresh Kumar and right foot
chappal of appellant-Mohd. Sadiq Mir. After obtaining the expert
opinion, the Investigating Team found the offence against the
appellants proved. Accordingly, Final Report enlisting 87
witnesses was laid before the trial Court. Since opinion to be
obtained from FSL, Srinagar and FSL Chandigarh took some time,
as such, on obtaining such opinion, supplementary challan was
also produced.
5. The trial Court took cognizance of the challan and on 26 th
December, 2007 framed charges against the appellants for
commission of offences punishable under Sections 302, 376(2)(g),
363, 341 and 34 RPC. The charges were read over and explained
to the appellants in the Court. The appellants pleaded not guilty to
the charges and claimed to be tried.
6. With a view to proving the charges against the appellants, the
prosecution examined several witnesses to different circumstances
including the medical and FSL experts, who had rendered their
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opinion on different aspects during the course of investigation. On
the basis of oral as well as scientific evidence brought on record
by the prosecution and having regard to the defense set up by the
appellants spelt out through DW-Showkat Ahmad and DW-Mohd.
Sultan Mir, the trial Court was of the opinion that the prosecution
had succeeded in proving following circumstances:-
1. Age of the victim
It was concluded by the trial Court that on the date ofoccurrence, the ‘X’ was a minor below the age of 15 years. The
conclusion was arrived at by the trial Court on the basis of
testimonies of PW-55 and PW-64, as also the documentary
evidence on record in the shape of school record of the
deceased wherein the date of birth of the victim was recorded
as 15.03.1994.
2. Date, Place and time of occurrence
The trial court found that there was sufficient evidence to hold
that the site of occurrence was near Wuder Batapora link road
and the crime was seemingly committed between 1 pm to 4 pm
on 20.07.2007. The trial Court has relied upon the evidence of
PWs-78, 79, 84, 63, 64, 65 and 66 to come to such conclusion.
3. Gang rape and murder of deceased
On the basis of evidence on record, the trial Court also
concluded that it was clearly established that ‘X’ was gang
raped by the appellants and thereafter murdered. The
Mohammad trial
Altaf Bhat
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12 CRA No.4/2015Court placed strong reliance upon finding of Dr. Fareeda (PW-
66) to base its finding in this regard. The trial court found that
it was evident from the opinion of the medical team and the
statements of the concerned doctors recorded in the Court that
the deceased had been subjected to rape multiple times which
was apparent from the multiple bruises and abrasions on the
private parts, medial sides of thighs. The doctor also found the
perineum torn, ecchymosed and bruised vagina. It was also
clearly proved and demonstrated by the medical evidence that
the deceased ‘X’ was done to death by the appellants by
slitting her throat.
4. Seizures made during investigation of the case
The trial court found the seizures made during investigation in
respect of dead body, grass lying on spot blood-soaked clay,
plain clay, wearing apparels i.e. under-shirt, frock, dupatta and
trouser of the deceased, wrist watch, school bag with books,
Coca Cola bottle, half filled wine bottle, shoes of the deceased
and seizure of moulds, proved. The trial Court also clarified
that all the seizures had not been made by the police on the
date of occurrence i.e. 20.07.2007 and some had been made on
21st of July, 2007. The trial Court has, on the basis of evidence
on record, opined that the prosecution had sufficiently
explained as to why all seizures could not be made on the date
of occurrence and also that the site of occurrence was properly
preserved during intervening night of 20th and 21stMohammad
July, Altaf
2007.
Bhat
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5. Seizure of moulds from the spot of occurrence
It was held by the trial Court that the moulds had been obtained
by the investigation team through experts from FSL and the
same were seized on 21st July, 2007 in the presence of
Executive Magistrate. There were more than ten attesting
witnesses in EXPW-6/2 to prove that foot print impression
were obtained and properly sealed in presence of the Executive
Magistrate. It was also found established that the moulds which
were picked up and sealed in the presence of the Executive
Magistrate were forwarded to the FSL for opinion. It was also
found established that the chappal of all the four accused were
seized when these were in the feet of the appellants. In this
regard the trial court relied upon the evidence of PW-18 and
PW-19, PW-6, PW-7, PW-9 and PW-71. The Trial Court also
placed strong reliance upon statement of PW-76 Mr.
H.C.Bhagat, Deputy Director, FSL, who in his statement
before the Court had clearly deposed that he had found
similarities in the design pattern of the sole etc. of the moulds
and seized chappal belonging to the appellants. The trial Court,
thus, concluded that the foot prints which were found on the
spot were by the chappals worn by the appellants on the date of
occurrence.
6. Evidence regarding presence of accused on spot.
On the basis of evidence of PW-27, PW-28, PW-29, PW-30,
PW-31, PW-31, PW-32, PW-33, PW-34 and PW-35 and others
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it was sufficiently proved that on the date of occurrence and a
day before i.e. 19th July, 2007, the appellants were found in and
around the place of occurrence.
7. Identification Parade
The trial Court, on the basis of evidence on record, also
concluded that the identity of the appellants was sufficiently
established. The trial Court has, though found some
discrepancies and irregularities in the conduct of identification
parade, yet has concluded that many of the witnesses examined
by the prosecution in this regard were already knowing the
appellants.
8. Arrest of the accused
There is not much dispute on the arrest of the accused, which
was made by the police on 22nd July, 2007 through different
arrest memos, which also stand sufficiently proved before the
trial Court.
9. Seizure of sawdust and pubic hair from the dead body of
‘X’
On the basis of evidence of medical team and the experts of the
FSL, the trial Court concluded that the sawdust, which was
picked up by the medical team from nostrils, eyes and mouth
of the deceased and the sawdust which was picked up from the
shirt of the appellant-Jehangir and from the house of Gani Mir
was similar in characteristics. This is how, the trial Court has
held that the appellant-Jehangir was connected with
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commission of crime. So far as, pubic hair recovered from the
body of the deceased are concerned, the trial Court has found,
on the basis of opinion of the experts, that the same were
human pubic hairs similar in characteristics with public hair
plucked from the appellant-Suresh. This is how, as per the trial
Court, complicity of appellant-Suresh with the commission of
crime has been established.
10. Seizure of weapon of offence
The trial Court has concluded that the weapon of offence i.e.
knife which was used by the appellants for committing the
murder of ‘X’ was recovered from a place only known to the
appellant Mohd. Sadiq Mir and the same was recovered at the
instance and on the basis of disclosure statement made by
Mohd. Sadiq Mir, in custody of the police. The disclosure
statement, as per the trial Court, was sufficiently proved by the
evidence of PW-72 and PW-11. The recovery of the weapon of
offence, which was witnesses by PWs-10, 11, 12, 71 and 72
has also been sufficiently proved by the testimonies of the said
witnesses. Besides, there is also photography and videography
of the entire process of recovery.
11. FSL report regarding blood found on the weapon of
offence and its matching with the blood found on spot on
the grass, clay and under-shirt of the deceased.
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The trial Court has also found established that the blood found
on the weapon of offence and the blood that was found on spot
on the grass, clay and under-shirt of ‘X’ was human blood of
group “B”, which clearly establishes that the throat of the
deceased was slit by the appellants by use of weapon of
offence recovered at the instance of appellant- Mohd. Sadiq
Mir. The trial court has relied upon the evidence of FSL expert
PW-75.
12. Opinion of the Doctor with regard to weapon of offence i.e.
knife Mark-G
The trial Court has also found that the incised wound caused
on the neck of the deceased ‘X’ could be caused with the
weapon of offence recovered and seized at the instance of and
on the disclosure made by the appellant-Mohd. Sadiq Mir. The
trial Court relied upon the opinion given by the doctor in the
certificate issued by him to the effect that the weapon (desi
shark) which was a sharp edged weapon could cause injury i.e.
incised wound mentioned in the postmortem report. This is
how the trial Court found the weapon of offence recovered on
the disclosure of and at the instance of the appellant-Mohd.
Sadiq Mir connected with and responsible for inflicting incised
wound on the neck of the deceased ‘X’.
13. Seizure of wearing clothes of the accused and confession
made by them
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The trial Court also found established the fact that the clothes
worn by appellant-Suresh Kumar were found hidden
underneath the stones at his instance and on the disclosure
made by the said appellant. Similarly, in respect of appellant-
Azher Ahmed Mir also the clothes were recovered in the
similar manner. The trial Court has also held proved the
disclosure statement made by Jehangir and the recovery of
wearing clothes at his instance. The appellant-Mohd. Sadiq Mir
was, however, found wearing same clothes as he was wearing
on the date of occurrence. The trial Court, on the basis of these
disclosure statements and on the recovery and seizure of the
wearing clothes of the appellants, also concluded that the
conduct exhibited by the appellants in hiding wearing clothes
to avoid detection of evidence was relevant under Section 8 of
the Evidence Act and was, thus, a corroborative piece of
evidence.
14. Arrest of accused and medical examination.
On the basis of evidence on record, the trial Court has also
found that the marks, scratches, bite marks, abrasion etc
detailed in the certificate(s) on the different body parts of the
appellants was also a relevant fact, worth consideration as it
was related to the effect of occurrence and, therefore,
admissible under Section 7 of the Evidence Act. The trial
Court has reproduced the certificates issued by the doctor, who
examined the appellants to arrive at such conclusion.
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15. Seizure of blood from accused for DNA profiling.
The trial Court has also found that the blood samples from the
appellants were taken in the presence of Executive Magistrate,
doctor and other five witnesses. These blood samples were
picked up for DNA profiling and were forwarded to FSL
Central Laboratory, Chandigarh for examination. As per the
opinion of the expert in the FSL Central Laboratory,
Chandigarh, Dr. Sanjiv, Assistant Director, FSL Chandigarh,
who disclosed before the trial Court and proved the certificates,
the blood samples of Suresh Kumar and Jehangir have
matched 100% whereas in the reference blood samples of
appellants Azher and Mohd. Sadiq Mir matched upto 80% with
the stains on the salwar of the deceased ‘X’. The trial Court
has, thus, concluded that the matching of blood samples of the
appellants with the stains on salwar in the DNA profiling and
examination is a strong circumstance connecting the appellants
with the commission of gruesome rape and murder of the
deceased ‘X’.
16. Evidence regarding potency of the accused.
Indisputably, the evidence on record clearly proposes that all
the four appellants were medically fit and were capable of
performing sexual act. This is so certified by the doctor, who
examined them. The trial Court has found this fact also proved
beyond reasonable doubt.
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7. The trial Court, relying upon the aforesaid chain of circumstances
and having regard to the total denial of the appellants in their
examinations recorded under Section 342 Cr.P.C., came to the
conclusion that the chain of circumstances to sustain the charge
has been fully established and the proved circumstances clearly
demonstrate that the gruesome rape and murder has been
committed by the appellant and nobody else.
8. The trial Court brushed aside minor contradictions appearing in
the statements of the witnesses as were sought to be exploited by
the defence counsel at the time of arguments. It was, thus,
concluded by the trial Court that the prosecution had succeeded to
establish beyond any reasonable doubt that the appellants alone
had kidnapped the minor near Batpora Wuder road on 20.07.2007
with common intention to commit gang rape. They not only
kidnapped and gang raped the minor girl but after satisfying their
lust, they also committed gruesome murder of the hapless minor.
The trial Court, thus, held the case set up by the prosecution
against the appellants proved beyond any reasonable doubt and
convicted all of them for the offences punishable under Sections
341, 363, 376(2)(g), 302 and 34 RPC.
9. The appellants are aggrieved of and have called in question the
judgment of conviction and order of sentence passed by the trial
Court, inter alia, on the following grounds:-
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i) That the trial Court has failed to appreciate that the
prosecution evidence is highly inconsistent, improbable
and unnatural. The trial Court has not appreciated in
correct perspective the testimony of PWs-34 and 35, who
had seen the Deceased ‘X’ near the place of occurrence
between 1 pm to 2 pm on the fateful day. The witnesses
aforesaid deposed in the Court that when they saw the
deceased ‘X’ they did not see any of the four appellants.
They also stated that they were ready to identify one
person they had seen on the date of occurrence, however,
both of them died.
ii) That the reliance placed by the trial Court on the
provisions of Section 27 of the Evidence Act Svt., 1997
to hold proved the fact that the weapon of offence
recovered at the instance of and on the disclosure made
by the appellant-Mohd. Sadiq Mir was totally out of
place. Neither the disclosure statement was recorded in
the manner required by law nor was the same proved
before the Court. There is noting that has come on record,
which would show that the weapon of offence was
recovered from the place which was only known to the
appellant -Mohd. Sadiq Mir and nobody else could have
access thereto.
Mohammad Altaf Bhat
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iii) That the trial Court has also failed to appreciate that in
their testimony before the trial Court, PW-11 and PW-12
clearly deposed that they had not seen any blood stain on
the knife, as such, it was totally improbable rather
impossible for the FSL to find Group-B blood stains on
the weapon of offence. It is, thus, clear that the weapon,
which was sent to the FSL was not the same as was
recovered at the instance of appellant-Mohd. Sadiq Mir.
iv) That the wearing apparels of appellant Nos. 2, 3 and 4
were not seized in accordance with law rather they were
collected from their respective homes.
v) That the trial Court has attached undue weightage to the
postmortem report and has wrongly concluded that the
injuries found on the deceased could have been caused by
the weapon of offence recovered at the instance of
appellant No.1.
vi) That the trial Court has also failed to appreciate that no
footprints from the chappal were picked up by the
investigating team and only mould of the chappal were
picked up for forensic examination. In the absence of
clear and cogent evidence that the moulds were actually
of the chappal belonging to the accused and recovered at
their instance and disclosure, it was not appropriate for
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the trial Court to connect the appellants with the moulds
of chappal allegedly found on the place of occurrence.
vii) That the trial Court has erroneously placed reliance upon
the testimony of PWs-64, 65 and 66, who have stated that
the sawdust was recovered from the eyes, nostrils and
mouth of the deceased. The trial Court did not take into
account the fact that why the prosecution did not get
ascertained the presence of sawdust in the lungs. The
appellant No.2 was a carpenter by profession and had he
been the perpetrator of the crime there would have been
every likelihood of sawdust being found on and around
the dead body of the deceased ‘X’. This aspect of
evidence has escaped attention of the trial Court.
viii) That the trial Court has also failed to appreciate the
evidence of PW-75, which does not make it clear as to
whether the pubic hair recovered from the dead body was
female pubic hair or male pubic hair. Except stating that
the pubic hair recovered from the dead body was human
hair, nothing more is stated by the said witness and,
therefore, it creates reasonable doubt that the hair
recovered from the dead body was probably the hair of
the deceased ‘X’.
ix) That the trial Court has also brushed aside the proved fact
that the fingerprints obtained from the objects which
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include some glasses, bag, empty plastic bottle and hair
pin did not match with the fingerprints of any of the
accused which clearly reflects that none of the appellants
were present on the spot from where the dead body was
recovered.
x) That the trial Court also did not take note of the
contradictions between the evidence of PW-85 Dr.
Sanjiv, Assistant Director, FSL Chandigarh and PW-75
Dr. Shahul Ahmad Kant, Scientific Assistant, FSL
Srinagar with regard to the salwar having blood stains on
it. It is submitted that PW-85 Dr. Sanjiv has not
explained as to how Blood samples of all the four
appellants matched with the stains on salwar of the
deceased ‘X’ recovered from the place of occurrence. The
time lag between the date of occurrence and examination
of reference samples viz-a-viz the stains on the salwar for
DNA examination also strikes at the credibility of the
report of the FSL Chandigarh proved by PW-85 Dr.
Sanjiv.
xi) That the trial Court has also failed to appreciate that as
per the testimony of PW-66, dead and alive spermatozoa
were found present in the vagina of the deceased ‘X’
whereas as per the medical jurisprudence, life of
spermatozoa is upto 12 hours. If statement of PW-66 is to
be believed then the crime took place around
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and postmortem was conducted at 7 pm. In that event
how was it possible that dead and alive spermatozoa was
still present in the vagina of the deceased ‘X’.
xii) That the trial court has also failed to consider the plea of
alibi in terms of Section 11 of the Evidence Act. The
defence witnesses produced by them deposed that on the
date of occurrence they had seen the appellant No.2
working as carpenter upto 7 pm and, therefore, could not
have been expected to be at the place of occurrence
between 1 to 2 pm, as is the case of the prosecution.
xiii) That the sentence of death awarded by the trial Court to
the appellants is highly excessive and harsh, particularly
in view of the fact that the appellants have been convicted
on the basis of circumstantial evidence and not on the
basis of direct evidence. The possibility of human error in
the case of circumstantial evidence cannot be completely
ruled out and, therefore, it is not safe to send somebody
to gallows on the basis of such evidence.
1o. Mr. Ateeb Kanth, learned counsel appearing for the appellants has
vehemently argued for the acquittal of the appellants on the
grounds taken by him in the memo of appeal. He took us through
the entire evidence to persuade us to take a view that the
circumstantial evidence brought on record by the prosecution was
not sufficient to connect the appellants with the commission of
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offences, which they have been charged for. He submits that the
circumstances relied upon by the trial Court have not been firmly
established and there are so many missing links in the chain which
put the entire prosecution story implicating the appellants in
serious doubt. He would argue that the prosecution has neither
been able to prove the presence of the appellants at or near the
place of occurrence at the time of commission of crime nor has it
pressed into service the ‘last seen theory’ specifically. The time
gap between the alleged presence of the appellants in and around
the area where the offence took place and time of occurrence is so
large as would admit the possibility of person or persons other
than the appellants intervening in between and committing the
offence. He submits that the medical evidence lacks coherence
and consistency and, therefore, cannot be made sole basis for
connecting the appellants with the commission of crime. The
DNA profiling is inconclusive and cannot be taken as a
circumstance having been firmly established.
11. He would further argue that the manner in which the alleged
weapon of offence has been recovered is also far from satisfactory
and it would not be safe to rely on such fact even with the aid of
Section 27 of the Evidence Act. He submits that neither the
disclosure made has been sufficiently proved nor has the weapon
of offence been recovered from a place which was only known to
the one of the appellants i.e. appellant-Mohd. Sadiq Mir. The
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Raida shop belonging to appellant-Mohd. Sadiq Mir was already
sealed and was under the lock and key of the police and therefore,
the police had every opportunity to plant the weapon of offence,
which was later on recovered on the alleged disclosure made by
the appellant-Mohd. Sadiq Mir. He also pointed out several
contradictions in the statements of the witnesses to make good his
point that the evidence on record does not inspire any confidence
and falls short of proving the case against the appellants beyond
reasonable doubt.
12. On the point of sentence, Mr. Ateeb Kanth learned counsel for the
appellants would argue that indisputably there is no direct
evidence against the appellants in the case and the appellants have
been convicted on the basis of circumstantial evidence. Even if,
one were to consider that the prosecution has proved some of the
circumstances linking the appellants with the commission of the
offences, yet on the basis of such evidence, it is not safe to deprive
four human beings of their lives. In a case rested solely on the
circumstantial evidence, the error of judgment by a human being
cannot be ruled out. He would, therefore, submit that the sentence
of death penalty imposed on the appellants is a sentence extremely
harsh and excessive and in the event Court does not agree with the
appellants seeking acquittal, he would pray for converting death
penalty into life imprisonment.
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13. Per contra, Mr. Mubeen Wani, learned Deputy Advocate General
appearing for the State, would support the judgment of the trial
Court and submits that the circumstances which connect the
appellants with the commission of crime have been firmly
established leading to only one hypothesis that the crime has been
committed by the appellants and appellants alone and none else.
He would submit that the evidence on record clearly points
towards the guilt of the appellants, who have not only gang raped
a hapless school going minor girl but have, with a view to
eliminate the evidence, committed her murder. He would submit
that the appellants deserve maximum punishment and the trial
Court committed no illegality in awarding death penalty to the
appellants. He would further argue that the manner in which the
gruesome crime has been committed, the appellants do not
deserve any leniency. Their execution would send a right signal to
the depraved minds who have no respect for life of the others and
can go to any extent to satisfy their lust.
14. Having heard learned counsel for the parties and perused the
material on record, we are of the considered opinion that the
evidence on record is sufficient to connect the appellants with the
commission of offence they are charged for.
15. We are aware that there is no direct evidence to the commission of
offence and the entire case of the prosecution rests on the
circumstantial evidence. It needs no emphasis that the
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circumstantial evidence plays a significant role in criminal
prosecution. Unlike direct evidence, which directly proves a fact
such as eye witness testimony, the circumstantial evidence
requires strong inference. It is now trite law that circumstantial
evidence can be sufficient for conviction, if it excludes every
reasonable hypothesis except that of guilt. The law does not make
any distinction between direct and circumstantial evidence and
both are potentially adequate in proving the facts. The note of
caution is that such evidence must be consistent with the
hypothesis of guilt and/or inconsistent with innocence and it must
exclude other reasonable hypothesis. Such evidence would be
sufficient to support conviction, if any rational fact finder could
have found essential elements of the crime established beyond
reasonable doubt.
16. In the recent times the scientific evidence like DNA profiling,
digital evidence which are type of circumstantial evidence has
gained significant prominence. With the progress made by the
science, the scientific investigation, as of late, has become
increasingly reliable and dependable. Most of the crimes are
committed secretly and without having been watched by anybody.
The detection of such crimes would, thus, depend entirely on the
circumstantial evidence. To say that the circumstantial evidence is
a weak evidence is now a thing of past. What, however, is
required by the Court analyzing the circumstantial evidence,
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brought on record by the prosecution, is to be doubly sure, that the
circumstances from which the conclusion of guilt is to be drawn
are fully established and all the facts so established lead to the
hypothesis consistent with the guilt of the accused and excludes
every hypothesis except the one proposed to be proved. To put it
succinctly, there must be a chain of circumstances, so complete in
itself, as not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused. The legal position in
this regard is very succinctly laid down by a Three-Judge Bench
judgment of the Supreme Court in the case of Hanumant v. State
of M.P., AIR 1952 SC 342, which has become locus classicus on
the point. The relevant excerpt of the judgment is reproduced
hereunder:-
” It is well to remember that in cases where the evidence in of a
circumstantial nature, the circumstances from which the
conclusion of guilt is to be drawn should in the first instance be
fully established, and all the facts so established should be
consistent only with the hypothesis of the guilt of the accused.
Again, the circumstances should be of a conclusive nature and
pendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other words,
there must be a chain of evidence so far complete as not to leave
any reasonable ground for a conclusion consistent with the
innocence of the accused and it must be such as to show that
within all human probability the act must have been done by the
accused.”
17. In Venkatesan v. State of Tamil Nadu, (2008) 8 SCC 456,
another Three-Judge Bench of Hon’ble the Supreme Court
discussed and re-stated the principles for founding conviction on
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the basis of circumstantial evidence. Surveying the case law on the
subject, in particular, the judgment of Supreme Court in the case
of Hanumant (supra) and Sharad Birdhichand Sarda v. State of
Maharashtra, (1984) 4 SCC 116, the Apex Court reiterated the
settled position that the conviction can be based solely on
circumstantial evidence but it should be tested by the touch stone
of law laid down in the case of Hanumant (supra) and followed
consistently in series of judgments by Hon’ble the Supreme Court.
18. This Court has elaborately discussed the tests which are required
to be satisfied before guilt of accused is held proved by
circumstantial evidence in the judgment rendered in the case of
Kamlesh Kumar v. State of J&K, (Criminal Appeal No. CRA No.
18/2017 decided on 23.03.2022). What is held by this Court in the
said case in paragraph No. 15 to 23 reads thus:-
“15. Before we delve further into the facts and circumstances
of the instant case, we need to understand what the
circumstantial evidence exactly is. The word “circumstantial”
itself implies that what is evident directly from the
circumstances in any particular case, even though, the
evidence itself is not direct, as is well said that a witness may
lie but not the circumstances. It is, therefore, not in dispute
that many a times circumstantial evidence becomes the only
source for convicting a person. Chief Justice M Momir in the
book “Textbook on The Law of Evidence” at page 13 very
elegantly differentiates between direct and circumstantial
evidence and points out that: English text writers divide the
evidence into (a) direct or positive evidence and (b) indirect
or circumstantial evidence. In this sense direct evidence is
that which goes expressly to the very point in question and
proves it, if believed, without aid from inference or deductive
reasoning, e.g., eye witness to a murder is direct evidence.
The circumstantial evidence does not prove the point in
question directly, but establishes it only by inferences. Thus,
if there is no eye witness to a murder, the fact that A had the
motive to murder B or that A was seen running away with a
blood stained knife from B‟s room where B was found dead
immediately after B‟s cries were heard would be
circumstantial evidence as against A. Mohammad Altaf Bhat
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16. Similarly, G.S.Pande, a retired Professor of Law from
Lucknow University has explained the concept of
circumstantial evidence in the following words:-
“Circumstantial evidence is that which relates to
various circumstances which are associated with the
real point in issue in such a way as to help the Court
in coming to a conclusion about the existence or non-
existence of the fact in issue. It is often said that a
witness may tell a lie but circumstances cannot. It is
an exaggeration of its importance though it contains a
grain of truth insofar as circumstances have no
volition and they cannot have interest and motive
which inspire a human being to give false evidence.
However, circumstances can also mislead the Court.
Sometimes they can also be manipulated by human
agency.”
17. What is said by Prof. G.S.Pande reproduced herein must
serve as a note of caution for all Courts that they must, before
arriving at any judgment, take into consideration the crucial
fact that circumstantial evidence is not manipulated by any
human agency, which includes the police or other authority
investigating the case. Should they fail to take into account
this important aspect of circumstantial evidence, there is
every likelihood of an innocent person being wrongly sent to
gallows or jail, as the case may be for no fault except that
circumstances implicate him in any particular case.
18. While appreciating the evidence on record in particular
the circumstantial evidence, we need to keep in mind the
cardinal principal of criminal jurisprudence that accused is
presumed to be innocent till proven guilty and the burden to
establish the guilt of the accused is on the person or authority
that brings out charge against him. It is for the prosecution to
prove its case by leading evidence beyond any reasonable
doubt. The evidentiary value of the circumstantial evidence
acquires immense importance in the absence of direct
evidence in any given particular case. The circumstantial
evidence essentially means establishment of a fact from
which some other fact is inferred. It deals with a fact on
which an inference is to be founded, as there could be
fallibility of inference, as such, it is not considered best type
of evidence.
19. At this point, we would like to refer what was pointed by
Sir Alfred Wills in his book on „circumstantial evidence”.
The author delineated and explained the rules that are to be
kept in mind while following the circumstantial evidence in
the following manner:-
(1) The facts alleged as the basis of any legal
inference must be clearly proved and beyond
reasonable doubt connected with the factum
probandum;
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(2) the burden of proof is always on the party who
asserts the existence of any fact, which infers legal
accountability;
(3) in all cases, whether of direct or circumstantial
evidence the best evidence must be adduced which
the nature of the case admits;
(4) in order to justify the inference of guilt, the
inculpatory facts must be incompatible with the
innocence of the accused and incapable of
explanation, upon any other reasonable hypothesis
than that of his guilt, (5) if there be any reasonable
doubt of the guilt of the accused, he is entitled as of
right to be acquitted”.
20. Having said that, we cannot give diminished importance
to the views of Baron Parke when he says that higher degree
of evidentiary value is required to be accorded to the
circumstantial evidence. In the words of Boren Parke, in the
circumstantial evidence, if cogent and properly let in is of
better probative value than direct evidence, for any scheming
witnesses might concoct a well-knit story. The well known
jurist Salmond, too, endorses what Baron says to conclude
that “it is usually more difficult to fabricate a convincing
chain of circumstance than to utter a direct lie.”
21. It is, thus, trite that before convicting a person on
circumstantial evidence alone, Court must fully satisfy itself
that circumstances are conclusively established and point
convincingly to the guilt of the accused and that the accused
is unable to satisfactorily explain the circumstances that leave
him/her in dock.
22. Hon’ble the Supreme Court in the case of Eradu v. State,
AIR 1956 SC 316 held circumstantial evidence should point
inevitably to the conclusion that it was the accused and the
accused only who were the perpetrators of the offence and
such evidence should be incompatible with the innocence of
the accused.
23. In Sharad Birdichand Sarda v. State of Maharashtra, AIR
1984 SC 1622, Hon’ble the Supreme Court elaborated the
five golden principles of circumstantial evidence laid down
in Hanumant v. State of M.P., AIR 1952 SC 343, which are
being followed consistently in the later cases. These five
principles are as follows:-
“1. The circumstances from which the conclusion of
guilt is to be drawn should be fully established.
2. That facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is
to say, they should not be explainable on any other
hypothesis except that the accused is guilty.
3. The circumstances should be of a conclusive nature
and tendency.
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4. They should exclude every possible hypothesis
except the one to be proved, and
5. There must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability that act must have
been done by the accused.”
19. It is in the light of this settled legal position, we need to examine
the evidence on record and the findings of fact returned by the
trial Court to find out whether the circumstances pleaded and
established by the prosecution before the trial Court meet and
satisfy the tests laid down by the Hon’ble Supreme Court
consistently since the judgment in Hanumant (supra) and
reiterated by us herein above. The circumstances on which the
prosecution relied upon and led evidence to prove before the trial
Court have already been enumerated herein above in paragraph
No.6 of this judgment. These are the circumstances, which were
pleaded by the prosecution and found by the trial Court meeting
and satisfying the tests laid down in Hanumant (supra) and
several other cases decided by the Supreme Court in respect of
conviction on the basis of circumstantial evidence.
20. Before we analyze the reasoning given by the trial Court to
support its findings that the chain of circumstances has been
firmly established in the case, we would like to point out that there
are certain facts which are not even disputed by the defence.
i) Age of deceased ‘X’:
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The age of the deceased ‘X’ on the date of occurrence i.e.
20.07.2007 was below 15 years, meaning thereby, the
deceased was minor at the time of her death. To return its
findings the trial Court has relied upon the statement of
PW-55 and PW-64. That apart, there is also documentary
evidence on record in the shape of school record which
clearly proves that the date of birth of the deceased, as
indicated in the school record, was 15.03.1994.
ii) The date, place and time of occurrence.
The date of occurrence i.e. 20.07.2007 is not much in
dispute. The dead body was recovered on the said date and
the same was subjected to postmortem at 7 pm in the
evening. As per the evidence of the doctors, who conducted
the autopsy, occurrence is stated to have taken place 5-6
hours before i.e. between 1 to 2 p.m. There is also evidence
on record that the deceased was student of Uqaab Public
School, Langate and attended the same on the fateful day.
There is also evidence to prove that the school closed at 1
p.m. and the deceased left for her home through Bhatpora
link road. So far as place of occurrence is concerned, the
evidence on record clearly demonstrates that the occurrence
had taken place at the place from where the dead body was
recovered i.e. Wuder near Bhatpora-Langate road. Learned
counsel for the appellants could not point out any
contradictory evidence or circumstance to doubt that the
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occurrence had taken place on 20.07.2007 at Wuder near
Bhatpora link road between 1 to 2 p.m.
iii) Gang rape and murder of the deceased ‘X’
There is overwhelming evidence on record, particularly,
testimonies of PW-64, 64-A, 65 and 66, which clearly
establishes that before her murder, the deceased ‘X’ had
been subjected to gang rape. Pointedly, a question was
asked to PW-66 Dr. Fareeda as to on what basis she was
saying that the deceased had been gang raped. In reply, the
lady doctor stated that on local examination of genitals,
there were found moderated pubic hair matted containing
clay, perineum ecchymosed, torn with multiple bruises on
medial side of thighs. Hymen was ruptured, containing
fresh blood clots. Vagina wall lacerated. Her both wrists
and legs were having bruises and scratches. She, therefore,
stated that the nature of injuries that were found on the dead
body were clearly suggestive of the fact that the deceased
had been raped multiple times. So far as murder of the
deceased is concerned, there could no dispute. The dead
body was recovered from the Wuder, seized in the presence
of independent witnesses and subjected to postmortem by a
team of doctors in the same evening at 7 p.m. in the hospital
at Langate.
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These are some of the facts or we call them circumstances which
are firmly established and with which there is no serious dispute
between the parties.
21. Having adverted to undisputed evidence on record, we now advert
to the relevant circumstances that, as per the trial Court, have been
firmly established by the prosecution and form a chain leading to
the hypothesis which is inconsistent with the innocence of the
appellants.
i) Presence of the accused in and around the place of
occurrence at the time the offence is proved to have been
committed.
ii) Previous conduct of the appellants.
iii) Seizure of sawdust and pubic hair from the dead body of the
deceased and their connection with appellant No.2 and
appellant No.4 respectively.
iv) Disclosure statement of appellant No.1 and consequent
discovery of the weapon of offence i.e. knife used in the
commission of offence.
v) Evidence in the shape of FSL report regarding blood found
on the weapon of offence and its matching with the blood
samples found on spot of occurrence on grass, clay,
undershirt of the deceased.
vi) Opinion of the doctor with regard to the possibility to use of
weapon of offence in commission of offence.
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vii) Arrest of the appellants and unexplained injuries found on
their bodies.
viii) DNA profiling indicating matching between blood samples
of the appellants and stains found on the salwar of the
deceased ‘X’ recovered from the place of the occurrence.
ix) Evidence with regard to potency of the appellants.
22. These are the major circumstances, which, as per the trial Court,
stand firmly established and that they form a chain of
circumstances complete in itself leading to only one hypothesis,
which is consistent with the guilt of the appellants. We will
discuss these circumstances one by one to find out whether the
view taken by the trial Court on the acceptance of the
circumstantial evidence is correct in law or not.
Disclosure statement and recovery of weapon of offence
22.1. It is in the evidence of the prosecution that appellant No.1-Mohd.
Sadiq Mir made a disclosure statement recorded in the presence of
PW-11 and PW-72. It is on the basis of this disclosure statement
made by the appellant-Mohd. Sadiq Mir, weapon of offence was
recovered at his instance from his Raida type shop in the Langate
bazaar. The shop was under the lock and key of the appellant-
Mohd. Sadiq Mir and, therefore, nobody else had access thereto.
The recovery of weapon of offence i.e. knife (Mark-G), which has
been effected by the police vide EXPW-10/2, has been amply
proved by the testimonies of the witnesses PWs-10, 11, 12, 71 and
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72. The videography in respect of recovery of weapon of offence,
too, has been prepared and the video cassette has been seized vide
EXPW-84/3. The trial Court has seen the video displayed in the
Court.
22.2. From the aforesaid evidence on record, it is abundantly clear that
the prosecution has not only proved the disclosure statement made
by the appellant-Mohd. Sadiq Mir but has also recovered the
weapon of offence at his instance from a place, which was known
only to appellant-Mohd. Sadiq Mir and nobody else had access
thereto.
22.3. It is trite law that Section 27 of the Evidence Act is a critical
exception that allows certain statements made by accused during
police custody to be used as evidence provided such statement
leads to discovery of fact that was not previously known to the
police.
22.4. In the recent judgment of Perumal Raja @ Perumal v. State,
AIR 2024 SC 460, the Hon’ble Supreme Court has reaffirmed that
for Section 27 of the Evidence Act to be invoked, following three
conditions must be met:-
i) The accused must be in police custody;
ii) The information must lead to discovery of a fact;
iii) Only part of the statement directly leading to the
discovery is admissible.
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22.5. In yet another significant case of Rajesh v. State of Madhya
Pradesh; 2023 LiveLaw (SC) 814, Hon’ble the Supreme Court
has cautioned against misuse of Section 27 of the Evidence Act
where confession made by the accused before the police was
admitted. Hon’ble the Supreme Court flagged various issues with
regard to Section 27 of the Evidence Act cautioning that its
frequent use by the police should be scrutinized to avoid potential
misuse. The Supreme Court, however, reiterated that each case
should be judged on its facts.
23. In the instant case, it is not in dispute that the confessional
statement/discovery/disclosure statement was made by the
appellant No.1-Mohd. Sadiq Mir in the custody of police after he
along with his associates-appellant Nos. 2, 3 and 4 had been
formally arrested. He made a categorical statement that the
weapon of offence i.e. knife used in the commission of crime had
been concealed by him in his Raida type shop in Langate Bazar
and that he can take the police and the witnesses to the said shop
and get the weapon of offence recovered. At his instance and
accompanied by him police proceeded to the shop in question
where the appellant-Mohd. Sadiq Mir in the presence of PW-10,
12, 71 and 72 opened the lock of his shop and took out the weapon
of offence and presented the same to the police. All the three
ingredients of Section 27 of the Evidence Act were, thus,
completely met.
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24. Statement of appellant-Mohd. Sadiq Mir that the weapon of
offence used in the commission of crime was a knife concealed by
him in his Raida type shop is that part of his statement, which, in
terms of Section 27 of the Evidence Act, is admissible in
evidence.
25. Now let us see whether the weapon which was recovered at the
instance of the appellant-Mohd. Sadiq Mir was the actual weapon
used for slitting the neck of the deceased ‘X’. The FSL report has
found the human blood of Group-B on the said weapon recovered
from the Raida type shop of the appellant No.1. The blood group
matches with the group of blood found in the stained clay,
undershirt and scarf of the deceased. This is amply proved by the
expert evidence of the Scientific Assistant, FSL Srinagar. The trial
Court has reproduced the opinion of the FSL expert as contained
in EXPW-FSL-75/1 at page 266 of the judgment. The matching of
blood group of the blood stains found on the weapon recovered at
the instance of the appellant-Mohd. Sadiq Mir and the blood group
of the stains which were found in the soaked clay and seized
apparels of the deceased leaves no manner of doubt that the
slitting of neck of the deceased, which led to her death was done
by the use of weapon of offence recovered at the instance of
appellant No.1-Mohd. Sadiq Mir from his shop. The FSL expert
PW-75 has stood by his opinion and has explained it further
during his examination. Learned counsel appearing for the
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appellants could not put any dent or create any doubt on the
correctness of the opinion of PW-75.
26. The aforesaid aspect of the matter i.e. use of knife in the
commission of offence is further fortified by the opinion of the
doctor wherein it has been categorically certified and mentioned
that the injury on the neck of the deceased could be caused with
the weapon forwarded and shown to the doctor for examination.
This evidence led by the prosecution has not been seriously
challenged by the learned counsel for the appellants except
pointing out minor discrepancies here and there.
27. From the aforesaid discussion, we find that the trial Court has
rightly concluded that the circumstance that the weapon of offence
was recovered pursuant to the disclosure statement made by and at
the instance of appellant No.1-Mohd. Sadiq Mir was firmly
established. The trial Court is equally correct in holding that the
evidence of expert of FSL coupled with the certificate issued and
proved by the Scientific Assistant, the circumstance i.e. the
weapon of offence (Shraakh) recovered at the instance of appellant
No.1 was actually used for committing murder of the deceased by
slitting her throat. As a matter of fact, the injuries as were found
on the dead body, particularly fatal injury on the neck, too, are
proved to have been caused by the weapon recovered at the
instance of appellant No.1.
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Seizure of sawdust and pubic hair from the dead body of the
deceased.
28. PW-64 and PW-64 A and PW-65 and PW-66 are the doctors, who
conducted postmortem of the deceased. During postmortem, they
recovered sawdust from the eyes, nostrils and mouth of the
deceased. It was seized in presence of the witnesses. The sawdust
picked up from the dead body of the deceased was put in a jar and
duly sealed, which was seized by the Investigating Officer along
with pubic hair picked up from the body of the deceased vide
EXPW-4/1. This seizure was effected in presence of more than
eight witnesses, who have appeared as witnesses for the
prosecution and sufficiently proved the seizure. As per the seizure
duly proved, the pubic hair was found and picked up from the
private parts of the deceased and the sawdust from the face,
nostrils and mouth of the deceased. Two different plandas marked
as “B” and “C” were prepared in respect of pubic hair and sawdust
and same were forwarded to the FSL for expert opinion.
28.1. It is noteworthy that all these samples were taken in presence of
the Executive Magistrate vide EXPW-62/2. The sawdust was also
recovered from the clothes, which the appellant No.2-Jehnagir
was wearing at the time of occurrence, which were seized vide
EXPW-13/7. The investigating team also seized the sawdust and
some pieces of wood from the house of Abdul Gani, where the
appellant No.2- Jehangir was, during those days, working. These
three types of sawdust seized vide EXPW-4/1, EXPW-13/7,
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EXPW-13/14 were sent to FSL for opinion of the expert. The
expert opinion, which is amply proved, is as under:-
“Physical microscopical and density analysis reveals that K-
162/07 (C) and K-179/07 were found to be dust of wood
similar in characteristics.”
28.2. PW-75 Shahul Ahmad Kant, Scientific Assistant appeared before
the trial Court and proved his opinion rendered vide EXPW-FSL-
75/4. In cross-examination the defence could not bring out
anything to contradict the findings and opinion given by him. The
matching of sawdust, which was amply proved by the prosecution
by leading cogent evidence, is a firmly established circumstance
that connects appellant No.2-Jehangir with the occurrence.
28.3. So far as pubic hair is concerned, as per the opinion of the expert,
same was found to be human pubic hair similar in characteristics
with the hair that was picked up from the appellant-Suresh Kumar.
Pubic hair which was recovered from the deceased vide EXPW-
4/1 and pubic hair of appellant-Suresh Kumar seized vide EXPW-
62/2, both samples were taken in presence of the Executive
Magistrate and were forwarded to the FSL. For clarity, we
reproduce the opinion of the FSL expert contained in the report
EXPW-FSL-75/4. The opinion reads thus:-
“Physical, microscopic and density analysis reveals that the
exhibit No.K-161/07 and K-175/07 were to be human pubic hair
similar in characteristic.”
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28.4. The pubic hair picked up from the deceased was marked as K-
161/-7 and the pubic hair plucked from the appellants were
marked as K-175/07, K-167/07, K-177/07 and K-178/07. As has
been proved by the prosecution, pubic hair which was picked from
the private parts of the deceased marked as K-161/07 and the
pubic hair plucked from appellant-Suresh marked as K-175/07
were found to be human pubic hair similar in characteristics. This
circumstance was firmly established.
28.5. Learned counsel for the appellants could not put forth any logical
argument to discord either the seizure of the pubic hair or the
opinion of the FSL expert i.e. PW-75 Shahul Ahmad Kant, FSL
Scientific Assistant.
28.6. The trial Court has, therefore, rightly concluded that matching of
sawdust recovered from the body of the deceased and that
recovered from the clothes and place of working of the appellant-
Jehangir connects the appellant-Jehangir with the commission of
crime. Similarly the matching of pubic hair picked up from private
part of the deceased with that plucked from the appellant-Suresh
Kumar connects appellant-Suresh Kumar with his participation in
the commission of crime along with others.
Seizure of moulds of chappal from the spot of occurrence and
its comparison with the chappal recovered from the accused.
29. The moulds of chappal which were printed on the clay/earth at the
place of occurrence were obtained by the police through experts
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from the FSL vide EXPW-6/2, FSL-3 and FSL-4. Seizure of these
moulds on 21.07.2007, which were bearing mark-M & M-1 was
made in the presence of Executive Magistrate. The prosecution
has sufficiently proved this aspect. Apart from the testimony of
the Executive Magistrate, 10 attesting witnesses, who had
witnessed the picking up of the moulds of the chappal, had
appeared as prosecution witnesses and stood the test of cross-
examination.
29.1. During the trial, the prosecution firmly established that the moulds
which were picked up and forwarded to the FSL for opinion along
with the chappals of the appellants, which were seized; some from
their possession and some at their instance. The chappals from the
possession of the appellants were seized on 23.07.2007. The
chappal which were seized from the possession of appellant-
Mohd. Sadiq Mir were sealed in Planda Marked G-5. The
chappals seized from appellant-Suresh Kumar were sealed in
Planda marked as G-6. The chappals which were seized from the
possession of appellant Jehangir Ahmed and Azher Mir were also
sealed in two different Plandas and Marked G-7 and G-8. There is
sufficient description of the chappals seized from the accused in
EXPW18/5. Sending of these chappals for examination and
analysis is also amply proved. PW-76, H.C.Bhagat, Dy. Director,
FSL Srinagar, who has rendered opinion in this regard has
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appeared in the witness box and proved his opinion. His opinion is
significant and is reproduced hereunder:-
“The packet marked as “G-5” was sealed with three intact seals.
These seals were tallied with the specimen of the seal forwarded to
me. On opening, it was found to contain a pair of plastic chapal with
trade mark “Italica” of light creamish colour The left foot chapal
was marked as exhibited B -890/0 7 and the right foot chapal was
marked as exhibit No.B-891/07 by inc.
The packet marked as “G-6” was having three intact seals. The
impression of these seals were tallied with the specimen seal
forwarded to me. On opening this packet, it was found to contain
pair of plastic chapal of light Grey colour 256 The left foot chapal
was marked as exhibit B-892/07 and right foot was marked as
exhibit B -893/0 7 by me.
The packet marked as “G-7 was sealed with four intact seals. The
impression of these seals were tallied with the impression of
specimen seal forwarded to me. On opening, it was found to contain
a pair of black colour shoes of trade mark “Five Star” of size 8. The
left foot shoe was marked as exhibit B-894/07 and the right foot
shoe was marked as exhibit B -895/0 7 by me.
The packet marked as “G-8” was sealed with four intact seals. The
impression of these seals were tallied with the impression of
specimen seal which forwarded to me. On opening, it was found to
contain a pair of Nylon chappal of trademark “Tuff”. The left foot
chapal was marked as exhibit B-896/07 and right foot chapal was
marked as exhibit 897107 by me.
The exhibit No.866/07 and exhibit No. 887/07 were thoroughly
subjected to physical examination. The crime mould marked exhibit
No.B-888/07 and B-889/07 have been compared with the soles of
the exhibit Nos. marked as B5 90/07 to B-897/07 and the following
observations were drawn.
S.No. Exhibit No. Length in Breadth of Breadth of in Breadth
Cms Ball portion steps in Cms of Heel
in Cms in Cms
1 B-888/07 30.5Cms Not clear 9.0 Cms 9.0 Cms
2. B-891/07 30.5 Cms 10.5 Cms 9.0 Cms 9.0 Cms
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3. B-889/07 Not clear 11.7 Cms 8.8 Cms 8.3 Cms
4 B-892/07 30.0 Cms 11.7 Cms 8.8 Cms 8.2 Cms
OtheOther points of similarly in exhibit No.886/07 and B591/07:
1.Design pattern of the sole corresponds similarly on both the
exhibits. 2.Some clay stuck on the inner margin side of the heel
corresponds similar impression on both the exhibits. 3.A wear and
tear mark on the inner margin side of the heel is giving similar
impression on both the exhibits. 4.A hole below the big toe and first
toe portion is giving similar impression on both the exhibits.”
29.2. PW-76 Mr. H.C.Bhagat, Dy. Director FSL has further stated that
the exhibit No.B-888/07 and B-889/07 have been compared with
the soles of the exhibits detailed above and after their comparison
with the soles of exhibit No.B-890/07 and B-891/07, he has drawn
the following observation:-
“The impression of crime mold marked exhibit
No.888/08 is from the sole of right foot plastic
chapel marked as exhibit No.891/07. The
impression on the crime mold marked as
exhibit No.B-889/07 is from the sole of the
left foot of the plastic chapel marked as
exhibit No.B892/07. The exhibit No.B-891/07
was found in the packet (Palanda) marked as
“G-5”. The chapels in this palanda were in the
feet of accused Mohamad Sadiq Mir The foot
of the chapel exhibit No.B-892/07 was found
in the palanda/packet which was marked as
“G-6” and as per EXPW-85/5. This chapel was
in the feet of accused Suresh Kumar The
expert opinion with regard to these chapels
and the molds is with the impression Mohammad
on theAltaf Bhat
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48 CRA No.4/2015crime mold is from these two chappels. The
impression of crime mold exhibit No.B-
888/07 is from the right foot plastic chappel of
accused No.] Mohamad Sadiq Mir and the
impression on the crime mold No. 889107 is
from left foot plastic chapel exhibit No.B-
892/07. So far as the impression on mold and
so far as chapels seized from the accused is
concerned, what emerges is that the
impressions on the mold is from the right foot
chapel of accused No.] and left foot chapel of
accused No.4 Suresh Kumar.”
29.3. The witness was pointedly asked by the defence, as to the basis on
which he had rendered his opinion. In answer, Mr. Bhagat stated
as under:-
“1. Design pattern of the sole corresponds similarly on both the
exhibits.
2. Some clay stuck on the inner margin side of the heel
corresponds similar impression on both the exhibits.
3. A wear and tear mark on the inner margin side of the heel is
giving similar impression on both the exhibits.
4. A hole below the big toe and first toe portion is giving
similar impression on both the exhibits.”
29.4. From the aforesaid discussion, it is beyond any doubt that this
circumstance has been firmly proved by the prosecution by
leading cogent and unflinching evidence. The comparison of the
chappals and the imprints taken from the place of occurrence
confirms the presence of the appellants Mohd. Sadiq Mir and
appellant Suresh Kumar at the place of occurrence, for, the
chappals of appellant-Mohd. Sadiq Mir and appellant-Suresh
Kumar have been found to have created the impression of the
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moulds which were picked up by the FSL people from the place of
occurrence.
Injuries found on the bodies of the appellants.
30. As per the certificate issued by the doctor, abrasion marks on face
with sides and on neck below ear were found on the body of
appellant Mohd. Sadiq Mir, who was medically examined on
22.07.2007 i.e. after two days of the occurrence. Similarly, a bite
mark on left hand over the index finger with little exudation of
approximately 2-3 days duration was found on the body of the
appellant-Jehangir on medical examination. There was partially
healed abrasion on prepuce. The scars are of approximately 24 to
48 hours duration on the body of the appellant-Suresh Kumar.
Bruise marks on both sides of upper arms of 2-3 days duration and
partially healed abrasions (3 numbers) on shaft of penis were
found on examination of appellant-Azhar. The medical experts,
who examined the appellants have proved the certificates and their
testimony has remained unchallenged.
30.1. From the above, it is evident that during commission of crime, the
deceased had put up struggle and, therefore, the abrasion and other
type of injury marks were found on the body of the each appellant.
In their statements under Section 342 Cr. P. C the appellants have
not tendered any explanation.
DNA Profiling connecting the appellants with the commission
of offence of rape and murder.
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31. It has come in evidence that the blood samples from the appellants
were obtained by the doctors during investigation in presence of
the Executive Magistrate. Samples were obtained on gauge and in
vials and marked as ‘A’, ‘B’, ‘C’ and ‘D’ in respect of appellants
Azher, Mohd. Sadiq Mr, Suresh Kumar and Jehangir respectively.
These blood samples have been taken vide EXPW 56/2, 56, 57
and 58 in presence of PWs-79, 83, 74-A. These blood samples
were forwarded by the Investigating Team to Central Forensic
Science Laboratory(CFSL), Chandigarh for examination. Along
with these samples, seized trousers belonging to the deceased was
also forwarded to the CFSL, Chandigarh for matching DNA. The
report of the CFSL, Chandigarh, was received and exhibited
before the trial Court as EXPW-88-DNA. PW-85 Dr. Sanjiv,
Assistant Director, CFSL, Chandigarh has substantiated and
proved the report prepared by him on the basis of DNA
examination of the samples. His opinion is reproduced hereunder:-
1. The reference Blood samples of Mr. Suresh Kumar
is matching with the stains of shelwar.
2. The reference blood samples of Jehangir Ahmad
is also matching with the stains of Shelwar.
These two matches are exact matches.
3. The reference blood samples of Azher Mir and
Mohammad Sadiq Mir are matching upto 80% with the
stains on Shelwar.
PW-85 Dr. Sanjiv was subjected to a lengthy cross-examination
and he has stood by what was spoken by him during his
examination-in-chief and contained in his opinion/report.
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31.1. The trial Court has rightly concluded that this circumstance which
was fully established by the prosecution was itself good enough to
conclude that the appellants alone were the perpetrators of the
crime and nobody else. The trial Court has relied upon a judgment
of Hon’ble Supreme Court in “Anil @ Anthony Arikswaniy
Joseph vs. State of Maharashtra, 2014 (4) SCC 69. Undoubtedly,
DNA profiling is state of the art facility that can be used to
identify individuals on the basis of their unique genetic makeup.
While the people may share same eyes, hair, colour and may have
similar facial features but they will not have same DNA. This
means the process of matching of DNA is useful for more
accurately solving the crimes, which are committed in secrecy and
do not have any eye witness account.
31.2. We are aware that matching of DNA of the suspect and the DNA
found on the crime scene is not conclusive evidence, however,
when such evidence is considered in light of other circumstantial
evidence on record, it does provide a definite beacon light to reach
the perpetrators of the crime. Indisputably, the evidence of experts
is admissible in evidence in terms of Section 45 of the Evidence
Act and a DNA report prepared and proved by the expert deserves
to be accepted unless it is absolutely dented by establishing that
there had been no quality control and quality assurance. If the
sampling is proper and there is no evidence as to the tempering of
samples, the DNA test report is to be accepted.
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32. For the foregoing reasons and the discussion made herein above
by us as well as the detailed analysis done and regard being had to
the reasoning given by the trial Court, we are convinced that the
aforesaid circumstances appearing against the appellants are
firmly established by the prosecution by leading evidence which is
cogent, consistent and trustworthy. The circumstances proved by
the prosecution make a complete chain of circumstances and
clearly established the guilt of the appellants beyond reasonable
doubt that the appellants committed the offences without any
possibility of an alternative. The facts which are established
through circumstantial evidence are conclusive in nature and
tendency and exclude all other hypothesis or circumstances from
happening, except the one which is consistent with the guilt of the
appellants.
33. We, therefore, uphold the judgment of the trial Court and
consequently the conviction of the appellants for the commission
of offences punishable under Section 341/34, 363/34, 302/34 &
376(2)(g) of the Ranbir Penal Code.
34. Having upheld the judgment of conviction passed by the trial
Court, we now proceed to tread on rather uncertain path i.e.
examination of the order of the trial Court sentencing the
appellants to death for commission of offence punishable under
Section 302/34 RPC. The area, we are called upon to embark
upon, is little blurred and hazy more particularly when there are
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no sentencing guidelines framed by the legislatures or prescribed
through judicial pronouncements. There are several judgments on
the point which of course serve as guidelines to determine the
quantum of sentence that is required to be imposed for
commission of a particular offence having regard to the different
factors, both aggravating and mitigating.
35. Death sentence, as is trite law, is imposed only in rarest of the rare
cases. What would be the ‘rarest of the rare cases’ would turn on
the facts and circumstances of each case and the other aggravating
as well as mitigating circumstances in a particular case.
36. Despite there being guidelines issued by the Supreme Court
through its pronouncements from time to time, the area continues
to remain blurred. The trial Court having imposing death penalty
on the persons convicted for heinous offences attracting death
sentence, is more of subjective than objective in nature.
37. Relevant circumstances which are required to be taken into
consideration in this case can be summarized as under:-
37.1. Aggravating circumstances, as projected by learned counsel for
the State:-
i) A minor girl aged 14 years, who was going from school to
her home was kidnapped, raped and murdered by the four
persons taking the benefit that she was all alone walking on
the road.
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ii) That the deceased was gang raped by four persons. It has
come in the evidence that the brave girl put up resistance,
which is evident from the bruises, marks and other injuries
received by the appellants.
iii) That after committing rape and with a view to eliminate
evidence, the appellants committed her murder by slitting
her neck by use of a knife.
iv) That the appellants are of young age having criminal record.
37.2. Mitigating circumstances, as projected by learned counsel for the
appellants:-
i) That the entire case is built on circumstantial evidence.
Nobody has witnessed the commission of crime by the
appellants. Human error in making the judgment, even on the
basis of proved circumstances, cannot be completely ruled out.
ii) That the manner in which the crime is committed does not
bring the case on hand within ‘rarest of the rare cases’
category, which would entail penalty of death.
iii) That three of the appellants were below the age of 30 whereas
one of the appellant, namely, Suresh Kumar was 50 years old
and was a married person having six children. There is no past
criminal record or conviction of the appellants. There is only
information by the prosecution witness with regard to
pendency of criminal case against appellant Mohd. Sadiq Mir
and Azher, however, no such evidence was led on this aspect.
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iv) That the appellants are in custody for the last about 17 years
and therefore, have been sufficiently punished for the crime
they have committed.
38. Having heard learned counsel for the parties and perused the
material on record including the aggravating and mitigating
circumstances projected by the learned counsel appearing for the
respective parties, we are of the considered opinion that the instant
case does not fall within ‘rarest of the rare cases’ as would entail
death penalty. We are holding so for the reasons we shall discuss
little later.
39. So far as legal position on death penalty is concerned, a
Constitution Bench of Hon’ble the Supreme in Bachan Singh v.
State of Punjab (1980) 2 SCC 684, by majority, while repelling
the challenge to the constitutionality of the death penalty
envisaged under Section 302 IPC laid down a broader framework
delineating guidelines on the point. The judgment in Bachan
Singh is locus classicus on the desirability of imposing death
penalty or otherwise and is marked as watershed moment in the
history of sentencing jurisprudence in India. The judgment was
pronounced after introduction of Section 354(3) in the Code of
Criminal Procedure 1973, though a similar provision in the J&K
Cr.P.C Svt. 1989 is conspicuously missing.
40. Section 354(3) of the Central Code mandated giving of special
reasons for imposition of death penalty instead of life
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imprisonment for offence of murder punishable under Section 302
IPC. As is summed up by the Supreme Court in the latter case of
Santosh Kumar v. State of Maharashtra, (2009) 6 SCC 498,
three broad values have been culled out from Bachan Singh
(supra):-
i) Individualized sentencing;
ii) Threshold of rarest of rare; and
iii) Principled sentencing.
In Santosh Kumar Hon’ble the Supreme Court has discussed at
great length these three broad values. For facility of reference,
para 45 to 109 are set out below:-
“45. There are three broad values emerging from Bachan Singh (supra):
1. INDIVIDUALIZED SENTENCING
46. For an effective compliance of sentencing procedure under
section 354(3) and section 235(2) Cr.P.C, sufficient discretion is a
pre-condition. Strict channeling of discretion would also go against
the founding principles of sentencing as it will prevent the sentencing
court to identify and weigh various factors relating to the crime and
the criminal such as culpability, impact on the society, gravity of
offence, motive behind the crime etc. Bachan Singh (supra) also holds
the same view.
47. It was held in Bachan Singh (supra) that:
“173. Thirdly, a standardisation of the sentencing process
which leaves little room for judicial discretion to take account
of variations in culpability within single-offence category
ceases to be judicial. It tends to sacrifice justice at the altar of
blind uniformity. Indeed, there is a real danger of such
mechanical standardisation degenerating into a bed of
procrustean cruelty.
174. Fourthly, standardisation or sentencing discretion is a
policy matter which belongs to the sphere of legislation. When
Parliament as a matter of sound legislative policy, did not
deliberately restrict, control or standardise the sentencing
discretion any further than that is encompassed by the broad
contours delineated in Section 354(3), the court would not by
overleaping its bounds rush to do what Parliament, in its
wisdom, warily did not do.”
48. The court while discussing Furman v. Georgia, 408 U.S. 238
(1971) in this regard held the following:
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“192. It appears to us that in Gregg v. Georgia and the
companion cases, the Supreme Court of U.S.A. was obliged to
read down the requirements of Furman and to accept these
broadly worded, loose- ended and not-all-inclusive `standards’
because in the area of sentencing discretion, if it was to retain
its judicial character, exhaustive standardisation or perfect
regulation was neither feasible nor desirable.”
49. In this context, Saibanna v. State of Karnataka (2005) 4 SCC 165
makes an interesting reading. The accused therein was a life convict.
While on parole, he committed murder of his wife and daughter. This
Court sentenced him to death on a reasoning, which effectively made
death punishment mandatory for the category of offenders serving life
sentence, opining:
“17….A prisoner sentenced to life imprisonment is bound to
serve the remainder of his life in prison unless the sentence is
commuted or remitted and that such sentence could not be
equated with any fixed term. (See Gopal Vinayak Godse vs.
State of Maharashtra(1961) 3 SCR 440. If that be so, there
could be no imposition of a second life term on the appellant
before us as it would be a meaningless exercise.
18. In the teeth of Section 427(2) of the Code of Criminal
Procedure, 1973 it is doubtful whether a person already
undergoing sentence of imprisonment for life can be visited
with another term of imprisonment for life to run
consecutively with the previous one.”
50. Mandatory death punishment (prescribed under section 303 of
Indian Penal Code) was stuck down as unconstitutional by this court
in Mithu v. State of Punjab AIR 1983 SC 473. This court observed:
“…If the law provides a mandatory sentence of death as
Section 303 of the Penal Code does, neither Section 235(2)
nor Section 354(3) of the Code of Criminal Procedure can
possibly come into play. If the court has no option save to
impose the sentence of death, it is meaningless to hear the
accused on the question of sentence and it becomes
superfluous to state the reasons for imposing the sentence of
death. The blatant reason for imposing the sentence of death in
such a case is that the law compels the court to impose that
sentence. The ratio of Bachan Singh, therefore, is that, death
sentence is Constitutional if it is prescribed as an alternative
sentence for the offence of murder and if the normal sentence
prescribed by law for murder is imprisonment for life.”
51. Justice O. Chinnappa Reddy, J. in his concurring opinion agreed
with the majority opinion and observed:
“25. Judged in the light shed by Maneka Gandhi and Bachan
Singh, it is impossible to uphold Section 303 as valid. Section
303 excludes judicial discretion. The scales of justice are
removed from the hands of the Judge so soon as he
pronounces the accused guilty of the offence. So final, so
irrevocable and so irrestitutable [sic irresuscitable] is the
sentence of death that no law which provides for it without
involvement of the judicial mind can be said to be fair, just
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58 CRA No.4/2015and reasonable. Such a law must necessarily be stigmatised as
arbitrary and oppressive. Section 303 is such a law and it must
go the way of all bad laws. I agree with my Lord Chief Justice
that Section 303, Indian Penal Code, must be struck down as
unconstitutional.”
(See also Reyes v. R. (2002) UKPC 11 : 12 BHRC 219,
Hughes, R. v. (Saint Lucia) (2002) UKPC 12, Fox v. The
Queen (2002) 2 AC 284,Bowe v. The Queen (2006) 1 WLR
1623 and Coard & Ors. v.. The Attorney General (Grenada),
(2007) UKPC 7.
52. Saibanna v. State of Karnataka, (2005) 4 SCC 165 to that extent
is consistent with Mithu (supra) add Bachan Singh (supra).
2. THRESHOLD OF RAREST OF RARE
2(A). Sentencing Procedure
53. The analytical tangle relating to sentencing procedure deserves
some attention here. Sentencing procedure deserves an articulate and
judicial administration. In this regard, all courts are equally
responsible. Sentencing process should be so complied with, that
enough information is generated to objectively inform the selection of
penalty. The selection of penalty must not require a judge to reflect on
his/her personal perception of crime.
54. In Swamy Shraddananda @ Murali Manohar Mishra v. State of
Karantaka 2008 (10) SCALE 669, the court notes that the awarding of
sentence of death “depends a good deal on the personal predilection of
the judges constituting the bench.” This is a serious admission on the
part of this court. In so far as this aspect is considered, there is
inconsistency in how Bachan Singh (supra) has been implemented,
as Bachan Singh (supra) mandated principled sentencing and not
judge centric sentencing. There are two sides of the debate. It is
accepted that rarest of rare case is to be determined in the facts and
circumstance of a given case and there is no hard and fast rule for that
purpose. There are no strict guidelines. But a sentencing procedure is
suggested. This procedure is in the nature of safeguards and has an
overarching embrace of rarest of rare dictum. Therefore, it is to be
read with Article 21 and 14.
Pre-sentence Hearing and “Special Reasons”
55. Under section 235(2) and 354 (3) of the Criminal Procedure Code,
there is a mandate as to a full-fledged bifurcated hearing and
recording of “special reasons” if the court inclines to award death
penalty. In the specific backdrop of sentencing in capital punishment,
and that the matter attracts constitutional prescription in full force, it
is incumbent on the sentencing court to oversee comprehensive
compliance to both the provisions. A scrupulous compliance of both
provisions is necessary such that an informed selection of sentence
could be based on the information collected and collated at this stage.
Please see Santa Singh v. State of Punjab, AIR 1956 SC 526, Malkiat
Singh and Ors. v. State of Punjab, (1991)4SCC341, Allaudin Mian v.
State of Bihar, AIR 1989 SC 1456, Muniappan v. State of Tamil
Nadu, ( 1981 ) 3 SCC 11, Jumman Khan v. State of U.P,
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(1991)1SCC752, Anshad and Ors. v. State of Karnataka,
[(1994)4SCC381] on this.
Nature of Information to be Collated at Pre-sentence
Hearing
56. At this stage, Bachan Singh (supra) informs the content of the
sentencing hearing. The court must play a proactive role to record all
relevant information at his stage. Some of the information relating to
crime can be culled out from the phase prior to sentencing hearing.
This information would include aspects relating to the nature, motive
and impact of crime, culpability of convict etc. Quality of evidence
adduced is also a relevant factor. For instance, extent of reliance on
circumstantial evidence or child witness plays an important role in the
sentencing analysis. But what is sorely lacking, in most capital
sentencing cases, is information relating to characteristics and socio-
economic background of the offender. This issue was also raised in
the 48th report of the Law Commission.
57. Circumstances which may not have been pertinent in conviction
can also play an important role in the selection of sentence. Objective
analysis of the probability that the accused can be reformed and
rehabilitated can be one such illustration. In this context, guideline no.
4 in the list of Mitigating Circumstances as borne out by Bachan
Singh (supra) is relevant. The court held:
“206. (4) The probability that the accused can be reformed and
rehabilitated.
The State shall by evidence prove that the accused
does not satisfy the conditions (3) and (4) above.”
In fine, Bachan Singh (supra) mandated identification of aggravating
and mitigating circumstance relating to crime and the convict to be
collected in the sentencing hearing.
2(B) Nature of Content of Rarest of rare Dictum
58. The rarest of rare dictum breathes life in “special reasons” under
section 354(3). In this context, Bachan Singh (supra) laid down a
fundamental threshold in the following terms:
“209. ……..A real and abiding concern for the dignity of
human life postulates resistance to taking a life through law’s
instrumentality. That ought not to be done save in the rarest of
rare cases when the alternative option is unquestionably
foreclosed.”
An analytical reading of this formulation would reveal it to be
an authoritative negative precept. “Rarest of rare cases” is an
exceptionally narrow opening provided in the domain of this
negative precept. This opening is also qualified by another
condition in form of “when the alternative option is
unquestionably foreclosed”.
59. Thus, in essence, rarest of rare dictum imposes a wide-
ranging embargo on award of death punishment, which can
only be revoked if the facts of the case successfully satisfy
double qualification enumerated below: Mohammad Altaf Bhat
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1. that the case belongs to the rarest of rare category
2. and the alternative option of life imprisonment will just not
suffice in the facts of the case.
60. The rarest of rare dictum serves as a guideline in enforcing
section 354(3) and entrenches the policy that life
imprisonment is the rule and death punishment is an
exception. It is a settled law of interpretation that exceptions
are to be construed narrowly. That being the case, the rarest of
rare dictum places an extraordinary burden on the court, in
case it selects death punishment as the favoured penalty, to
carry out an objective assessment of facts to satisfy the
exceptions ingrained in the rarest of rare dictum.
61. The background analysis leading to the conclusion that
the case belongs to rarest of rare category must conform to
highest standards of judicial rigor and thoroughness as the
norm under analysis is an exceptionally narrow exception. A
conclusion as to the rarest of rare aspect with respect to a
matter shall entail identification of aggravating and mitigating
circumstances relating both to the crime and the criminal. It
was in this context noted:
“161. ……..The expression “special reasons” in the
context of this provision, obviously means
“exceptional reasons” founded on the exceptionally
grave circumstances of the particular case relating to
the crime as well as the criminal”
62. Curiously in Ravji alias Ram Chandra v. State of
Rajasthan, (1996) 2 SCC 175 this court held that it is only
characteristics relating to crime, to the exclusion of the ones
relating to criminal, which are relevant to sentencing in
criminal trial, stating:
“24. …The crimes had been committed with utmost
cruelty and brutality without any provocation, in a
calculated manner. 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 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”…”
63. We are not oblivious that Ravji case has been followed in
at least six decisions of this court in which death punishment
has been awarded in last 9 years, but, in our opinion, it was
rendered per incuriam. Bachan Singh (supra) specifically
noted the following on this point:
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“163…The present legislative policy discernible from
Section 235(2) read with Section 354(3) is that in
fixing the degree of punishment or making the choice
of sentence for various offences, including one under
Section 302 of the Penal Code, the court should not
confine its consideration “principally “or merely to the
circumstances connected with the particular crime, but
also give due consideration to the circumstances of the
criminal”
Shivaji @ Dadya Shankar Alhat v. The State of Maharashtra,
AIR2009SC56, Mohan Anna Chavan v. State of
Maharashtra(2008)11SCC113, Bantu v. The State of U.P.,
(2008)11SCC113, Surja Ram v. State of Rajasthan,
(1996)6SCC271], Dayanidhi Bisoi v. State of Orissa,
(2003)9SCC310, State of U.P. v. Sattan @ Satyendra and
Ors., 2009(3)SCALE394 are the decisions where Ravji Rao
(supra) has been followed. It does not appear that this court
has considered any mitigating circumstance or a circumstance
relating to criminal at the sentencing phase in most of these
cases. It is apparent that Ravji Rao (supra) has not only been
considered but also relied upon as authority on the point that
in heinous crimes, circumstances relating to criminal are not
pertinent.
2(C) Alternative Option is foreclosed
64.Another aspect of rarest of rare doctrine which needs
serious consideration is interpretation of latter part of the
dictum – “that ought not to be done save in the rarest of rare
cases when the alternative option is unquestionably
foreclosed.” Bachan Singh (supra) suggested selection of
death punishment as the penalty of last resort when,
alternative punishment of life imprisonment will be futile and
serves no purpose.
65. Death punishment, as will be discussed in detail a little
later, qualitatively stands on a very different footing from
other types of punishments. It is unique in its total
irrevocability. Incarceration, life or otherwise, potentially
serves more than one sentencing aims. Deterrence,
incapacitation, rehabilitation and retribution -all ends are
capable to be furthered in different degrees, by calibrating this
punishment in light of the overarching penal policy. But the
same does not hold true for the death penalty. It is unique in
its absolute rejection of the potential of convict to rehabilitate
and reform. It extinguishes life and thereby terminates the
being, therefore puts an end anything to do with the life. This
is the big difference between two punishments. Before
imposing death penalty, therefore, it is imperative to consider
the same.
66. Rarest of rare dictum, as discussed above, hints at this
difference between death punishment and the alternative
punishment of life imprisonment. The relevant question here
would be to determine whether life imprisonment as a
punishment will be pointless and completely devoid of reason
in the facts and circumstances of the case? As discussed
above, life imprisonment can be said to be completely
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only when the sentencing aim of reformation can be said to be
unachievable. Therefore, for satisfying the second exception to
the rarest of rare doctrine, the court will have to provide clear
evidence as to why the convict is not fit for any kind of
reformatory and rehabilitation scheme. This analysis can only
be done with rigor when the court focuses on the
circumstances relating to the criminal, along with other
circumstances. This is not an easy conclusion to be
deciphered, but Bachan Singh (supra) sets the bar very high by
introduction of Rarest of rare doctrine.
67. In Panchhi v. State of U.P., (1998) 7 SCC 177, this Court
also elucidates on “when the alternative option is foreclosed”
benchmark in the following terms:
16. When the Constitution Bench of this Court, by a
majority, upheld the constitutional validity of death
sentence in Bachan Singh v. State of Punjab this Court
took particular care to say that death sentence shall not
normally be awarded for the offence of murder and
that it must be confined to the rarest of rare cases when
the alternative option is foreclosed. In other words, the
Constitution Bench did not find death sentence valid in
all cases except in the aforesaid freaks wherein the
lesser sentence would be, by any account, wholly
inadequate. In Machhi Singh v. State of Punjab a three-
Judge Bench of this Court while following the ratio
in Bachan Singh case laid down certain guidelines
among which the following is relevant in the present
case: (SCC p. 489, para 38)
“(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.”
68. In Bachan Singh (supra), it was stated:
“206. Dr Chitale has suggested these mitigating
factors:
“Mitigating circumstances.–In the exercise of its
discretion in the above cases, the court shall take into
account the following circumstances:
(1) That the offence was committed under the
influence of extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or
old, he shall not be sentenced to death.
(3) The probability that the accused would not commit
criminal acts of violence as would constitute a
continuing threat to society. (4) The probability that
the accused can be reformed and rehabilitated. The
State shall by evidence prove that the accused does not
satisfy the conditions (3) and (4) above. (5) That in the
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63 CRA No.4/2015facts and circumstances of the case the accused
believed that he was morally justified in committing
the offence.
(6) That the accused acted under the duress or
domination of another person.
(7) That the condition of the accused showed that he
was mentally defective and that the said defect
impaired his capacity to appreciate the criminality of
his conduct.
207. We will do no more than to say that these are
undoubtedly relevant circumstances and must be given
great weight in the determination of sentence.”
2(D) Role and Responsibility of Courts
69. Bachan Singh (supra) while enunciating rarest of rare
doctrine, did not deal with the role and responsibility of
sentencing court and the appellate court separately. For that
matter, this court did not specify any review standards for High
Court and the Supreme Court. In that event, all courts, be it
trial court, High Court or this court, are duty bound to ensure
that the ratio laid down therein is scrupulously followed. Same
standard of rigor and fairness are to be followed by the courts.
If anything, inverse pyramid of responsibility is applicable in
death penalty cases.
70. In State of Maharashtra v. Sindhi, (1975) 1 SCC 647 this
Court reiterated, with emphasis, that while dealing with a
reference for confirmation of a sentence of death, the High
Court must consider the proceedings in all their aspects,
reappraise, reassess and reconsider the entire facts and law
and, if necessary, after taking additional evidence, come to its
own conclusions on the material on record in regard to the
conviction of the accused (and the sentence) independently of
the view expressed by the Sessions Judge.
2(E) Sentencing Justifications in Heinous Crimes
71. It has been observed, generally and more specifically in the
context of death punishment, that sentencing is the biggest
casualty in crimes of brutal and heinous nature. Our capital
sentencing jurisprudence is thin in the sense that there is very
little objective discussion on aggravating and mitigating
circumstances. In most such cases, courts have only been
considering the brutality of crime index. There may be other
factors which may not have been recorded.
72. We must also point out, in this context, that there is no
consensus in the court on the use of “social necessity” as a sole
justification in death punishment matters. The test which
emanates from Bachan Singh (supra) in clear terms is that the
courts must engage in an analysis of aggravating and
mitigating circumstances with an open mind, relating both to
crime and the criminal, irrespective of the gravity or nature of
crime under consideration. A dispassionate analysis, on the
aforementioned counts, is a must. The courts while adjudging
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on life and death must ensure that rigor and fairness are given
primacy over sentiments and emotions.
73. In Panchhi (supra), the court downplayed the heinous
nature of crime and relied on mitigating circumstances in the
final opinion. The court held:
“20. We have extracted the above reasons of the two
courts only to point out that it is the savagery or brutal
manner in which the killers perpetrated the acts on the
victims including one little child which had persuaded
the two courts to choose death sentence for the four
persons. No doubt brutality looms large in the murders
in this case particularly of the old and also the tender-
aged child. It may be that the manner in which the
killings were perpetrated may not by itself show any
lighter side but that is not very peculiar or very special
in these killings. Brutality of the manner in which a
murder was perpetrated may be a ground but not the
sole criterion for judging whether the case is one of the
“rarest of rare cases” as indicated in Bachan
Singh case. In a way, every murder is brutal, and the
difference between one from the other may be on
account of mitigating or aggravating features
surrounding the murder.”
74. In Vashram Narshibhai Rajpara v. State of Gujarat (2002)
9 SCC 168, this court relied on the dictum of Panchhi and
further explained the approach:
“9. ….As to what category a particular case would fall
depends, invariably on varying facts of each case and
no absolute rule for invariable application or yardstick
as a ready reckoner can be formulated. In Panchhi v.
State of U.P. it has been observed that the brutality of
the manner in which the murder was perpetrated may
not be the sole ground for judging whether the case is
one of the “rarest of rare cases”, as indicated in Bachan
Singh v. State of Punjab and that every murder being
per se brutal, the distinguishing factors should really be
the mitigating or aggravating features surrounding the
murder. The intensity of bitterness, which prevailed,
and the escalation of simmering thoughts into a thirst
for revenge or retaliation were held to be also a
relevant factor.”
75. This court also gave primacy to mitigating circumstances
in the final analysis:
“10. Considering the facts of the case presented before
us, it is on evidence that despite his economic
condition and earnest attempt to purchase a house for
the family after raising loans, the wife and daughters
were stated to be not pleased and were engaging in
quarrels constantly with the appellant. Though they
were all living together the continuous harassment and
constant nagging could have very well affected his
mental balance and such sustained provocation could
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65 CRA No.4/2015have reached a boiling point resulting in the dastardly
act. As noticed even by the High Court the appellant
though hailing from a poor family had no criminal
background and it could not be reasonably postulated
that he will not get rehabilitated or that he would be a
menace to the society. The boy of tender age would
also once for all be deprived of the parental protection.
Keeping in view all these aspects, in our view, it could
not be said that the imposition of life imprisonment
would not adequately meet the requirements of the
case or that only an imposition of the extreme
punishment alone would do real or effective justice.
Consequently, we direct the modification of the
sentence of death into one of rigorous imprisonment
for life, by partly allowing the appeal to that extent. In
other respects the appeal shall stand dismissed. The
appellant shall undergo the remaining period of
sentence as above.”
76. In Om Prakash v. State of Haryana, (1999) 3 SCC 19,
K.T. Thomas, J. deliberated on the apparent tension between
responding to “cry of the society” and meeting the Bachan
Singh (supra) dictum of balancing the “mitigating and
aggravating circumstances”. The court was of the view that the
sentencing court is bound by Bachan Singh (supra) and not in
specific terms to the incoherent and fluid responses of society:
7. It is true that court must respond to the cry of the
society and to settle what would be a deterrent
punishment for an abominable crime. It is equally true
that a large number of criminals go unpunished thereby
increasing criminals in the society and law losing its
deterrent effect. It is also a truism as observed in the
case of State of M.P. v. Shyamsunder Trivedi [SCC at
p.273] that the exaggerated adherence to and insistence
upon the establishment of proof beyond every
reasonable doubt, by the prosecution, ignoring the
ground realities, the fact situation and the peculiar
circumstances of a given case often results in
miscarriage of justice and makes the justice delivery
system a suspect; in the ultimate analysis, the society
suffers and a criminal gets encouraged. Sometimes it is
stated that only rights of the criminals are kept in mind,
the victims are forgotten. Despite this it should be kept
in mind that while imposing the rarest of rare
punishment, i.e., death penalty, the court must balance
the mitigating and aggravating circumstances of the
crime and it would depend upon particular and peculiar
facts and circumstances of each case.”
77. In Dharmendrasinh v. State of Gujarat, (2002) 4 SCC 679,
the court acknowledged that the crime committed was “no
doubt heinous and unpardonable” and that two innocent
children lost their lives for no fault of their, but the court chose
to give force to mitigating circumstances in the following
terms:
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“21. ……The offence was obviously not committed for
lust of power or otherwise or with a view to grab any
property nor in pursuance of any organized criminal or
anti-social activity. Chances of repetition of such
criminal acts at his hands making the society further
vulnerable are also not apparent. He had no previous
criminal record.”
78. The court also stated the law in the following terms:
“20. Every murder is a heinous crime. Apart from
personal implications, it is also a crime against the
society but in every case of murder death penalty is not
to be awarded. Under the present legal position,
imprisonment for life is the normal rule for punishing
crime of murder and sentence of death, as held in
different cases referred to above, would be awarded
only in the rarest of rare cases. A number of factors are
to be taken into account namely, the motive of the
crime, the manner of the assault, the impact of the
crime on the society as a whole, the personality of the
accused, circumstances and facts of the case as to
whether the crime committed, has been committed for
satisfying any kind of lust, greed or in pursuance of
anti-social activity or by way of organized crime, drug
trafficking or the like. Chances of inflicting the society
with a similar criminal act that is to say vulnerability of
the members of the society at the hands of the accused
in future and ultimately as held in several cases,
mitigating and aggravating circumstances of each case
have to be considered and a balance has to be struck.
The learned State counsel as indicated earlier has
already indicated the aggravating circumstances by
reason of which it has been vehemently urged that
sentence of death deserves to be confirmed.”
79. Whether primacy should be accorded to aggravating
circumstances or mitigating circumstances is not the question.
Court is duty bound by virtue of Bachan Singh (supra) to
equally consider both and then to arrive at a conclusion as to
respective weights to be accorded. We are also bound by the
spirit of Article 14 and Article 21 which forces us to adopt a
principled approach to sentencing. This overarching policy
flowing from Bachan Singh (supra) applies to heinous crimes
as much as it applies to relatively less brutal murders. The
court in this regard held:
“Judges should never be bloodthirsty. Hanging of
murderers has never been too good for them. Facts and
figures albeit incomplete, furnished by the Union of
India, show that in the past Courts have inflicted the
extreme penalty with extreme infrequency – a fact
which attests to the caution and compassion which they
have always brought to bear on the exercise of their
sentencing discretion in so grave a matter. It is,
therefore, imperative to voice the concern that courts,
aided by the broad illustrative guidelines indicated by
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67 CRA No.4/2015us, will discharge the onerous function with evermore
scrupulous care and humane concern, directed along
the highroad of legislative policy outlined in Section
354(3), viz., that for persons convicted of murder, life
imprisonment is the rule and death sentence an
exception.”
2 (F). Public Opinion in Capital Sentencing
80. It is also to be pointed out that public opinion is difficult
to fit in the rarest of rare matrix. People’s perception of crime
is neither an objective circumstance relating to crime nor to
the criminal. Perception of public is extraneous to conviction
as also sentencing, at least in capital sentencing according to
the mandate of Bachan Singh (supra).
81. Rarest of rare policy and legislative policy on death
punishment may not be essentially tuned to public opinion.
Even if presume that the general populace favours a liberal DP
policy, although there is no evidence to this effect, we cannot
take note of it. We are governed by the dictum of Bachan
Singh (supra) according to which life imprisonment is the rule
and death punishment is an exception.
82. We are also governed by the Constitution of India. Article
14 and 21 are constitutional safeguards and define the
framework for state in its functions, including penal functions.
They introduce values of institutional propriety, in terms of
fairness, reasonableness and equal treatment challenge with
respect to procedure to be invoked by the state in its dealings
with people in various capacities, including as a convict. The
position is, if the state is precariously placed to administer a
policy within the confines of Article 21 and 14, it should be
applied most sparingly. This view flows from Bachan
Singh (supra) and it this light, we are afraid that Constitution
does not permit us to take a re-look on the capital punishment
policy and meet society’s cry for justice through this
instrument.
83. The fact that we are here dealing with safeguards
entrenched in the Constitution should materially change the
way we look for reasons while awarding the death
punishment. The arguments which may be relevant for
sentencing with respect to various other punishments may
cease to apply in light of the constitutional safeguards which
come into operation when the question relates to
extinguishment of life. If there are two considerations, the one
which has a constitutional origin shall be favoured.
84. An inherent problem with consideration of public opinion
is its inarticulate state. Bachan Singh (supra) noted that judges
are ill-equipped to capture public opinion:
“126. Incidentally, the rejection by the people of the
approach adopted by the two learned Judges in Furman,
furnishes proof of the fact that judicial opinion does not
necessarily reflect the moral attitudes of the people. At
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68 CRA No.4/2015the same time, it is a reminder that Judges should not
take upon themselves the responsibility of becoming
oracles or spokesmen of public opinion: Not being
representatives of the people, it is often better, as a
matter of judicial restraint, to leave the function of
assessing public opinion to the chosen representatives
of the people in the legislature concerned….”
* * * * *
175……..The highest judicial duty is to recognise the
limits on judicial power and to permit the democratic
processes to deal with matters falling outside of those
limits.” As Judges, we have to resist the temptation to
substitute our own value choices for the will of the
people. Since substituted. judicial “made-to-order*
standards, howsoever painstakingly made, do not bear
the people’s imprimatur, they may not have the same
authenticity and efficacy as the silent zones and green
belts designedly marked out and left open by
Parliament in its legislative planning for fair- play of
judicial discretion to take care of the variable,
unpredictable circumstances of the individual cases,
relevant to individualised sentencing. When Judges,
acting individually or collectively, in their benign
anxiety to do what they think is morally good for the
people, take upon themselves the responsibility of
setting; down social norms of conduct, there is every
danger, despite their effort to make a rational guess of
the notions of right and wrong prevailing in the
community at large and despite their intention to abide
by the dictates of mere reason, that they might write
their own peculiar view or personal predilection into
the law, sincerely mistaking that changeling for what
they perceive to be the Community ethic. The
perception of ‘community’ standards or ethics may vary
from Judge to Judge..”
85. Powell, J.’s dissent in Furman (supra) also bears repetition
in this regard:
“But however one may assess amorphous ebb and flow
of public opinion generally on this volatile issue, this
type of inquiry lies at the periphery not the core of the
judicial process in constitutional cases. The assessment
of popular opinion is essentially a legislative, and not a
judicial, function.”
86. The constitutional role of the judiciary also mandates
taking a perspective on individual rights at a higher pedestal
than majoritarian aspirations. To that extent we play a counter
majoritarian role. And this part of debate is not only relevant
in the annals of judicial review, but also to criminal
jurisprudence. Justice Jackson in West Virginia State Board of
Education v. Barnette, 319 U.S. 624 (1943) also opined on
similar lines:
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“The very purpose of a bill of rights was to withdraw
certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of
majorities and officials and to establish them as legal
principles to be applied by the courts. One’s right to
life, liberty, and property, to free speech, a free press,
freedom of worship and assembly and other
fundamental rights may not be submitted to vote; they
depend on the outcome of no elections.”
87. Public Opinion may also run counter to the Rule of law
and constitutionalism. Bhagalpur Blinding case or the recent
spate of attacks on right to trial of the accused in the Bombay
Blast Case are recent examples. We are also not oblivious to
the danger of capital sentencing becoming a spectacle in
media. If media trial is a possibility, sentencing by media
cannot be ruled out.
88. Andrew Ashworth, a leading academic in the field of
sentencing, who has been at the center of sentencing reforms
in U.K., educates us of the problems in factoring in public
opinion in the sentencing. He (with Michael Hough), observes
in an article, Sentencing and the Climate of Opinion (1996,
Criminal Law Review):
“The views of sentencing held by people outside the
criminal justice system– “the general public”–will
always be important even if they should not be
determinative in court. Unfortunately, the concept of
public opinion in relation to sentencing practices is
often employed in a superficial or simplistic way. In
this short article we have identified two major
difficulties with the use of the concept. First, members
of the public have insufficient knowledge of actual
sentencing practices. Second, there is a significant but
much-neglected distinction between people’s sweeping
impressions of sentencing and their views in relation to
particular cases of which they know the facts. When it
is proclaimed that the public think the courts are too
lenient, both these difficulties are usually suppressed.
To construct sentencing policy on this flawed and
partial notion of public opinion is irresponsible.
Certainly, the argument is hard to resist that public
confidence in the law must be maintained. It is also
hard to resist the proposition that public confidence in
sentencing is low and probably falling. However, since
the causes of this lie not in sentencing practice but in
misinformation and misunderstanding, and (arguably)
in factors only distantly related to criminal justice,
ratcheting up the sentencing tariff is hardly a rational
way of regaining public confidence.
This is not to deny that there is political capital to be
made, at least in the short term, by
espousing sentencing policies which have the trappings
of tough, decisive action. However, the underlying
source of public cynicism will not have been
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70 CRA No.4/2015addressed; and once politicians embark on this route,
they may be committing themselves long-term to a
treadmill of toughness, “decisiveness”, and high public
expenditure. The political costs of withdrawing from
tough policies, once embarked on, may be too high for
politicians of any hue to contemplate. The United
States serves as an example.
If the source of falling public confidence in sentencing
lies in lack of knowledge and understanding, the
obvious corrective policy is to explain and to educate,
rather than to adapt sentencing policy to fit a flawed
conception of public opinion. But who should be the
target of such explanation and education? We have
serious doubts whether attempts to reach the ordinary
citizen directly will have any impact at all. On the
other hand, we think it feasible, within limits, to
educate those who shape public opinion. Newspaper
and television journalists, for example, responded well
to the initiatives in the 1980s intended to curb the
reporting of crime in ways that needlessly fuelled fear
of crime. A similar initiative should now be mounted
in relation to sentencing.”
89. Capital sentencing is one such field where the safeguards
continuously take strength from the Constitution, and on that
end we are of the view that public opinion does not have any
role to play. In fact, the case where there is overwhelming
public opinion favouring death penalty would be an acid test
of the constitutional propriety of capital sentencing process.
3. PRINCIPLED SENTENCING
3(A). Mandate of Bachan Singh (supra) on Value of
Precedents
90. This court laid down rarest of rare dictum in Bachan Singh
case (supra) and thereby endorsed a broad sentencing
threshold. It has been interpreted by courts in various ways. It
is important to note here that principled application of rarest of
rare dictum does not come in the way of individualized
sentencing. With necessary room for sentencing, consistency
has to be achieved in the manner in which rarest of rare
dictum has to be applied by courts.
91. Bachan Singh (supra) expressly barred one time
enunciation of minute guidelines through a judicial verdict.
The court held that only executive is competent to bring in
detailed guidelines to regulate discretion. On this count
judicial restraint was advocated. But at the same time, it
actively relied on judicial precedent in disciplining sentencing
discretion to repel the argument of arbitrariness and Article
14 challenge. An embargo on introduction of judicial
guidelines was put therein but organic evolution ofset of
principles on sentencing through judicial pronouncements was
not ruled out. This is how precedent aids development of law
in any branch of law and capital sentencing cannot be an
exception to this. Sentencing discretion is also a kind of
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discretion and is shall be exercised judicially in light of the
precedents.
92. Bachan Singh (supra) observes that the superior courts
must correct wrong application of section 302. It is very
obvious that appellate courts cannot discharge review function
without taking aid of established principles. In Jagmohan
Singh v. State of U.P., [(1973) 1 SCC 20], the Court’s
observation in this context was subsequently followed noting:
“…The impossibility of laying down standards is at the
very core of the criminal law as administered in India
which invests the judges with a very wide discretion in
the matter of fixing the degree of punishment. The
discretion in the matter of sentence is, as already
pointed out, liable to be corrected by superior courts.
Laying down of standards to the limited extent possible
as was done in the Model Judicial Code would not
serve the purpose. The exercise of judicial discretion on
well-recognised principles is, in the final analysis, the
safest possible safeguards for the accused.”
93. Bachan Singh (supra) elaborated on “well recognized
principles” in the following terms:
“197. In Jagmohan, this Court had held that this
sentencing discretion is to be exercised judicially on
well recognised principles, after balancing all the
aggravating and mitigating circumstances of the crime.
By “well recognised principles” the court obviously
meant the principles crystallised by judicial decisions
illustrating as to what were regarded as aggravating or
mitigating circumstances in those cases. The legislative
changes since Jagmohan — as we have discussed
already — do not have the effect of abrogating or
nullifying those principles. The only effect is that the
application of those principles is now to be guided by
the paramount beacons of legislative policy discernible
from Sections 354(3) and 235(2), namely: (1) The
extreme penalty can be inflicted only in gravest cases
of extreme culpability; (2) In making choice of the
sentence, in addition to the circumstances, of the
offence, due regard must be paid to the circumstances
of the offender, also.”
It continuing in the same vein held:
“165. ……Cognizant of the past experience of the
administration of death penalty in India, Parliament, in
its wisdom, thought it best and safe to leave the
imposition of this gravest punishment in gravest cases
of murder, to the judicial discretion of the courts which
are manned by persons of reason, experience and
standing in the profession. The exercise of this
sentencing discretion cannot be said to be
untrammelled and unguided. It is exercised judicially
in accordance with well recognised principles
crystallised by judicial decisions, directed along the
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72 CRA No.4/2015broad contours of legislative policy towards the
signposts enacted in Section 354(3).”
3(B) Cases Where Death Penalty Was Imposed/Affirmed
94. In Ram Singh v. Sonia and Ors. 2007 (3) SCALE 106, the
accused couple had, in a most diabolic manner, ended the lives
of their family members, which included the step brother of
the wife, his children and even her own father, mother and
sister, all with the motive of inheriting the family property.
This Court noting the cold blooded and pre meditated
approach in murdering the family while they were all sleeping
considered it as a fit case for the imposition of death penalty
on the couple.
95. In Prajeet Kumar Singh v. State of Bihar 2008 (4) SCALE
442 the accused had murdered the children of the family where
he had been staying as a tenant for the past four years, while
they were sleeping. He thereafter proceeded to attack the adult
members of the family who on hearing the screams of their
children had come to their rescue. The court noting the
brutality of manner of the attack considered it a fit case for the
imposition of death sentence.
96. In Mohan Anna Chavan (supra) the court upheld the death
sentence imposed on a serial rapist. The accused had already
been convicted twice for the raping a minor girl, but on the
first occasion he was awarded a sentence only of two years and
on the second, sentence of ten years rigorous imprisonment
only. When the accused was convicted of raping and
murdering two minor girls again, the court refused to interfere
with the death sentence awarded by the lower courts.
97. In Bantu v. State of Uttar Pradesh [2008 (10) SCALE 336]
the accused had, after raping a six year old girl, tried to
conceal his crime by inserting a stick in her vagina which
ultimately resulted in causing her death. The court noted that
the depraved acts of the accused only deserved a death
sentence.
98. In Shivaji @ Dady Shankar Alhat (supra) the accused had
raped and murdered a nine year old girl. This Court therein
rejecting the argument that the conviction having been based
in circumstantial evidence, death penalty should not be
awarded, affirmed the death penalty awarded by the lower
court.
99. In State of U.P. v. Sattan, 2009 (3) SCALE 394, six
members of a family were murdered by the accused leaving
only three survivors over some personal enmity. The trial court
awarded them death sentence. The High Court commuted the
sentence to one of life imprisonment. The Supreme Court in
appeal noting the brutality of murder held that the accused
deserved only a death penalty.
3(C) Cases Where Death Penalty was not Awarded/
Affirmed
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100. In Ujjagar Singh v. State of Punjab, [2007 (14) SCALE
428] the accused had been convicted of murder and rape and
accordingly sentenced to death by the lower courts. This Court
in appeal, acquitting the accused only of the charge of rape
because of the lack of evidence, noted that since the charge of
rape formed a substantial portion of reasoning for causing the
death, the death sentence on the accused could no longer be
sustained, once he was acquitted on that charge. The sentence
was accordingly altered to one of life imprisonment.
101. In Amrit Singh v. State of Punjab 2006 (11) SCALE 309
the accused had raped a minor girl. The victim died a painful
death because of bleeding from her private parts. The court,
however, noted that the accused might not have had the
intention of murdering the victim, but her death was only the
unfortunate inevitable consequence of the crime, hence it did
not fall within the rarest of the rare cases.
102. In Bishnu Prasad Sinha and Anr. v. State of Assam [2007
(2) SCALE 42], this Court commuted the death penalty of the
accused on the ground that the prosecution case was entirely
based on circumstantial evidence.
103. In State of Maharashtra v. Prakash Sakha Vasave and
others, 2009 (1) SCALE 713 the accused had brutally attacked
with axes the husband of their sister, who was having an illicit
relationship with another woman. The trial court had found
two of the accused guilty and sentenced them to death. In
appeal the High Court acquitted the accused because of lack of
evidence. This Court in appeal set aside the judgment of
acquittal passed by the High Court but noticed that the case
before it did not fall in the rarest of rare and deserved only a
life imprisonment.
3(D) Differing opinion in other cases
104. While dealing with a matter as to whether death penalty
should be awarded or not, although the court ordinarily would
look to the precedents, but, this becomes extremely difficult, if
not impossible, in the context of the cases discussed above.
There is no uniformity of precedents, to say the least. In most
cases, the death penalty has been affirmed or refused to be
affirmed by us, without laying down any legal principle.
105. In Aloke Nath Dutt and ors. v. State of West Bengal,
2006 (13) SCALE 467 this Court after examining various
judgments over the past two decades in which the issues of
rarest of rare fell for consideration, admitted the failure on the
part of this Court to evolve a uniform sentencing policy in
capital punishment cases and conclude as to what amounted to
`rarest of rare’. Disparity in sentencing has also been noted in
Swamy Shraddananda v. State of Karnataka (Swamy
Shraddananda (I) (2007) 12 SCC 288.
106. In the aforementioned backdrop, we may notice a recent
three-Judge Bench decision of this Court in Swamy
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Shraddananda @ Murali Manohar Mishra (supra). Aftab Alam,
J., writing the judgment for the Three-Judge Bench held:
“51. The truth of the matter is that the question of
death penalty is not free from the subjective element
and the confirmation of death sentence or its
commutation by this Court depends a good deal on the
personal predilection of the judges constituting the
bench.
52. The inability of the Criminal Justice System to deal
with all major crimes equally effectively and the want
of uniformity in the sentencing process by the Court
lead to a marked imbalance in the end results. On the
one hand there appears a small band of cases in which
the murder convict is sent to the gallows on
confirmation of his death penalty by this Court and on
the other hand there is a much wider area of cases in
which the offender committing murder of a similar or a
far more revolting kind is spared his life due to lack of
consistency by the Court in giving punishments or
worse the offender is allowed to slip away unpunished
on account of the deficiencies in the Criminal Justice
System. Thus the overall larger picture gets
asymmetric and lop-sided and presents a poor
reflection of the system of criminal administration of
justice. This situation is matter of concern for this
Court and needs to be remedied.”
107. The issue of subjectivity has also been previously noticed
by both academics and this Court. Professor Anthony R.
Blackshield’s analysis in the mid 1970s showed this trend in
the pre-Bachan Singh period. [see Journal of the Indian Law
Institute 1979]. This was also noticed by Bhagwati, J. in his
dissenting judgment in Bachan Singh (supra).
108. In the post-Bachan Singh period, a joint report by the
Amnesty International – India and People’s Union for Civil
Liberties Report titled “Lethal Lottery: The Death Penalty in
India, A study of Supreme Court Judgments in death penalty
cases 1950-2006” and the Swamy Shraddananda (supra)
judgment show quite clearly that not much has changed in this
respect.
109. To assist future benches at considering the facts of
individual cases however, the Constitution Bench in Bachan
Singh (supra) did however note certain aggravating and
mitigating factors mentioned by the Amicus Curie (drawn
from jurisprudence from the USA as also Clauses (2)(a), (b),
(c) and(d) of the already lapsed Indian Penal
Code (Amendment) Bill, 1972). The Supreme Court did
however endorse them, referring to them as “undoubtedly
relevant circumstances and must be given great weight in the
determination of sentence”.Machhi Singh v. State of Punjab, [
(1983) 3 SCC 470] went further and made a tabular
comparison of such mitigating and aggravating circumstances.
Yet as the above discussion has clearly shown, it is now clear
that even the balance-sheet of aggravating Mohammad
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circumstances approach invoked on a case by case basis has
not worked sufficiently well so as to remove the vice of
arbitrariness from our capital sentencing system. It can be
safely said that the Bachan Singh threshold of “rarest of rare
cases “has been most variedly and inconsistently applied by
the various High Courts as also this court.”
41. It needs no emphasis that the doctrine of “rarest of rare case” was
enunciated by the Hon’ble Supreme Court in Bachan Singh’s
case. Paragraph Nos.197 and 209 refers to this doctrine. In
Bachan Singh, Hon’ble the Supreme Court placed reliance upon
judgment of Jagmohan Singh v. State of U.P., (1973) 1 SCC 20
to hold that sentencing discretion is required to be exercised
judicially on well recognized principles after drawing a balance-
sheet of all aggravating and mitigating circumstances of the crime.
The well recognized principles for exercise of sentencing
discretion would obviously mean those principles which are
crystallized by the Hon’ble Supreme Court in various judicial
decisions.
42. Section 354(3) and 235(2) of Central Cr.P.C do not have the
effect of abrogating or nullifying those principles but only serve as
a beacon light for exercise of sentencing discretion. Paragraph
Nos.197 and 209 of Bachan Singh (supra) deserve reference at
this stage and are reproduced hereunder:-
“197. In Jagmohan, this Court had held that this
sentencing discretion is to be exercised judicially on
well-recognised principles, after balancing all the
aggravating and mitigating circumstances of the crime.
By “well-recognised principles” the Court obviously
meant the principles crystallized by judicial decisions
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76 CRA No.4/2015illustrating as to what were regarded as aggravating or
mitigating circumstances in those eases. The legislative
changes since Jagmohan-as we have discussed already-
do not have the effect of abrogating or nullifying those
principles. The only effect is that the application of
those principles is now to be guided by the paramount
beacons of legislative policy discernible from Sections
354(3) and 235(2), namely : (1) The extreme penalty
can be inflicted only in gravest cases of extreme
culpability; (2) In making choice of the sentence, in
addition to the circumstances of the offence, due
regard must be paid to the circumstances of the
offender, also.”
…………………
………………….
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.” Nonetheless, it
cannot be over emphasized that the scope and concept
of mitigating factors in the area of death penalty must
receive a liberal and expansive construction by the
courts in accord with the sentencing policy writ large
in Section 354(3). Judges should never be blood-
thirsty. Hedging of murderers has never been too good
for them. Facts and figures, albeit incomplete,
furnished by the Union of India, show that in the past,
Courts have inflicted the extreme penalty with extreme
infrequency-a fact which attests to the caution and
compassion which they have always brought to bear on
the exercise of their sentencing discretion in so grave a
matter. It is, therefore, imperative to voice the concern
that courts, aided by the broad illustrative guidelines
indicated by us, will discharge the onerous function
with evermore scrupulous care and humane concern,
directed along the highroad of legislative policy
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outlined in Section 354(3), viz, that for persons
convicted of murder, life imprisonment is the rule and
death sentence an exception. A real and abiding
concern for the dignity of human life postulates
resistance to taking a life through law’s instrumentality.
That ought not to be done save in the rarest of rare
cases when the alternative option is unquestionably
foreclosed.”
43. From reading of two paragraphs reproduced herein above, it is
abundantly clear that extreme penalty can be inflicted only in
gravest cases of extreme culpability and in making choice of the
sentence due regard must be paid to the circumstances of the
offender, also. Hon’ble Supreme Court in the case of Bachan
Singh refused to standardize the extreme circumstances or rarest
of the rare circumstances entailing death penalty instead of life
imprisonment, however, emphasized that in deciding the case of
sentence for commission of murder punishable under Section 302
IPC, imposition of sentence of life imprisonment should be the
rule and death penalty an exception.
44. In the case of Machhi Singh and others v. State of Punjab,
(1983) 3 SCC 470, a three-Judge Bench while considering the
same issue, placed strong reliance upon what was laid down by
the Constitution Bench in Bachan Singh and culled out guidelines
to be applied while deciding the issue as to whether extreme
penalty of death need to be inflicted in the given facts and
circumstances of the case. These guidelines/propositions have
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been taken note in paragraph No.38 and 39 of the judgment, which
paragraphs were set out herein below:-
“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 sentences arises. The
following propositions emerge from Bachan Singh’s
case:
(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 alongwith 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 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 has 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.
39. In order to apply these guidelines inter-alia the
following questions may be asked and answered:
(a) Is there something uncommon about the crime
which renders sentence of imprisonment for life
inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that
there is no alternative but to impose death
sentence even after according maximum
weightage to the mitigating circumstances which
speak in favour of the offender ?”
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45. On conspectus of all the circumstances emanating in this case and
considered in light of the proposition culled out in paragraph No.38
of Machhi Singh, we are of the considered opinion that the
following circumstances weigh in favour of not imposing extreme
penalty of death in the instant case:-
i) Having regard to the facts and circumstances of the case, we
do not find it a ‘rarest of rare cases’ as is the doctrine
enunciated in Bachan Singh and explained in Machhi
Singh. Every murder is brutal and dastardly act of the
perpetrators of the crime. However, to bring it within the
scope of the term “rarest of rare”, such murder should be
one committed in an extremely brutal, grotesque, diabolical,
revolting, or dastardly manner so as to arouse intense and
extreme indignation of the community. From the evidence on
record, it is evident that initial intention of the appellants was
to take benefit of loneliness of the deceased “X” and commit
rape upon her. The intention to kill developed on spot when
with a view to eliminate the evidence one of them inflicted
fatal injury on the neck of the deceased. As has come out from
the post-mortem report, the deceased was killed by a single
incised slit injury caused by a sharp edged weapon. There was
no other injury or wound found on the dead body of the
deceased ‘X’. We are aware that it is because of the
extremely depraved act of the appellants a young life was
brought to an end without the deceased being responsible
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80 CRA No.4/2015directly or indirectly for such inhuman conduct. However,
having regard to all the circumstances under which the crime
has been committed and the sentencing guidelines laid down
in judicial decisions, we do not find it a case which would
come within the purview of rarest of the rare cases doctrine.
ii) All the appellants except appellant-Suresh Kumar were
unmarried and below the age of 23 at the time of
commission of offence and below the age of 30 years at the
time of conviction by the trial Court. The appellant-Suresh
Kumar was aged 43 years at the time of commission of
crime and 50 years at the time of conviction and was a
married person having six children. As is held by the
Hon’ble Supreme Court, the age of the convict is also a
relevant criteria, which should be taken into consideration
while deciding the question as to whether in a given case
life imprisonment would meet the ends of justice rather than
death penalty.
iii) That none of the appellants have been convicted for any
offence, much less a heinous offence. There is oral evidence
on record to suggest that there are some cases pending
against the appellants-Mohd. Sadiq Mir and Azher Ahmad
but such oral statements have not been substantiated by
placing on record any material. In the absence of such
material, it cannot be said that the appellants have previous
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81 CRA No.4/2015bad criminal record that may come in the way of the Court
not to exercise the discretion for commuting the death
penalty into life imprisonment.
iv) That the convicts are now in jail for 17 years and are on a
death row for the last more than 10 years. In the words of
Justice Krishna Iyer, brooding horror of hanging which has
been haunting the appellants in their condemned cells for
the last ten years is a factor, which cannot be ignored by
this Court while considering the appropriate sentencing in
this case.
v) That the judgment of conviction under consideration rests
solely on circumstantial evidence and therefore, is an
added reason that we do not favour death penalty in the
instant case. We are aware that circumstantial evidence, if
it is of impeccable nature admitting no hypothesis
consistent with the innocence of the accused is as good as a
judgment passed on the basis of ocular evidence.
Howsoever perfect and legally correct we may claim to
be, there is always a scope for an error in judgment. It is
not uncommon that on the basis of same evidence on
record, the two Courts may come to different conclusions.
The trial Court acquitting the accused and the appellate
Court reversing the acquittal and vice versa. In a case
based on circumstantial evidence possibility of human
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error is still more. The rule of prudence demands that a
Court may choose to give primacy to life imprisonment
over death penalty in cases which are solely based on
circumstantial evidence [See Mohd. Farooq Abdul Gafur
v. State of Maharashtra, (2010) 14 SCC 641]. Thus,
keeping in mind the distinct nature of death penalty, it
would be prudent to avoid imposing death penalty in cases
based on circumstantial evidence because of the potential
fallacy of conviction based only on circumstantial evidence
and the fact that the death penalty is irreversible. There
should be no dispute or doubt about the fact that the cases
based on circumstantial evidence have far greater chances
of turning out to be wrongful conviction, later on, in
comparison to the ones’ which are based on fitter source of
proof like eye witness account.
46. We are equally aware that despite aforesaid caution and in a
contrary line of cases Hon’ble the Supreme Court has expressly
refused to consider the circumstantial evidence as a ground for not
imposing the death penalty. However, in the instant case having
regard to the mitigating factors in favour of the appellants, we are
inclined to toe the line that it is not safer to impose death penalty
in a case built solely on circumstantial evidence.
47. That it is not a case of the prosecution that the conduct of the
appellants during their seventeen years incarceration in jail has not
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remained satisfactory or that there are no chances of the appellants
of reformation. The onus to show that there is no chance of their
reformation when appellants step out of prison and could be a
menace to the society, lies on the prosecution, which in the instant
case has not been discharged. The doctrine of proportionality
provides justifiable reasoning for awarding death penalty.
However, while imposing any sentence on the accused, the Court
must keep in mind the doctrine of rehabilitation.
48. Public opinion is difficult to fit in ‘rarest of the rare’ doctrine.
Peoples’ perception of crime is neither an objective circumstance
relating to crime nor to the criminal. Perception of public is
extraneous to conviction as also sentencing according to the
Mandate of Bachan Singh. Public opinion may also run counter
to rule of law and constitutionalism. There is also a danger of
capital sentencing becoming a spectacle in media. And if media
trial is a possibility, sentencing by media cannot be ruled out.
49. As against these mitigating circumstances, the prosecution has
relied upon following aggravating circumstances to justify
imposing death penalty upon the appellants:-
1) That the deceased was a minor girl of 14 years and a student of
Uqaab Public School, Langate. The appellants took benefit of her
tender age and her loneliness kidnapped and raped her and they
did not spare her even after raping and one of them committed
her murder by slitting her throat. Mohammad Altaf Bhat
I attest to the accuracy and
authenticity of this document17.10.2024 14:47
84 CRA No.4/2015
2) The manner in which the heinous crime was committed is
diabolical, brutal and has shaken the entire community which
remained demonstrating on the streets for several days.
3) That the appellants are menace to the society and the crime
committed by them is against the society.
4) That two of the appellants, Mohd. Sadiq Mir and Azher Ahmad
have criminal history and do not deserve any leniency.
50. Suffice it to say that we do not dispute that the crime of rape and
murder is always gruesome and abhorrent but having regard to the
guidelines issued by the Supreme court from time to time and
explained in Bachan Singh (supra) and Machi Singh (supra), the
case does not fall in the definition of ‘rarest of the rare case’.
51. As already observed, we have not found anything on record to
show previous conviction of any of the appellants in the police
record. The witnesses have orally referred to registration of some
cases for commission of minor offences but the prosecution has
not placed on record any documentary evidence to substantiate the
aforesaid aspect.
52. We have already discussed herein above, that nothing has been
brought to our notice by the prosecution from which it could be
inferred that convicts are menace to the society. Merely saying so
at the time of arguments, is not good enough to believe that there
are no chances of appellants’ reformation.
Mohammad Altaf Bhat
I attest to the accuracy and
authenticity of this document
17.10.2024 14:47
85 CRA No.4/2015
53. For the foregoing reasons, we are inclined to modify the sentence
of death imposed by the trial Court on the appellants for
commission of offence punishable under Section 302 RPC and
instead sentence the appellants to imprisonment for life without
remission for at least 25 years i.e. they shall not be released for
any reason, whatsoever, before serving the minimum sentence of
twenty-five years. Rest of the sentences imposed by the trial Court
shall remain intact and those of imprisonment would run
concurrently with imprisonment for life. Trial Court shall issue
warrant for execution of sentences, in terms of this judgment.
54. The criminal appeal as well as criminal reference stand disposed
of in the above terms. In this view of the matter, writ petition
(OWP No.1060/2016) has not been pressed having been rendered
infructuous by efflux of time. Accordingly, the writ petition is
dismissed as having been rendered infructuous.
55. Record be sent back to the trial Court along with copy of the
judgment.
(M A Chowdhary) (Sanjeev Kumar)
Judge Judge
Srinagar
15.10.2024
Vinod, PS
Whether the order is reportable: Yes/No
Mohammad Altaf Bhat
I attest to the accuracy and
authenticity of this document
17.10.2024 14:47