Andhra Pradesh High Court – Amravati
Shaik Inthiyaz vs The State Of Andhra Pradesh, on 27 September, 2024
Author: K.Sreenivasa Reddy
Bench: K.Sreenivasa Reddy
THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY AND THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO CRIMINAL APPEAL No.353 OF 2020 & R.T.NO.1 OF 2020 COMMON JUDGMENT:
(per the Hon’ble Sri Justice K.Sreenivasa Reddy)
The appellant herein is the accused in Sessions Case
No.59 of 2014 on the file of the VIII Additional District and
Sessions Judge-cum-Special Judge for Trial of Offences
against Woman, Nellore (hereinafter referred to, as ‘the
Sessions Judge’).
2. Originally, the appellant herein and two others
viz. T.Vamsi Krishna (hereinafter referred to, as ‘J1’) and
G.Murali Manohar (hereinafter referred to, as ‘J2’) are
alleged to have involved in the aforesaid offences. Since the
said persons were juveniles-in-conflict-with-law, they were
tried in accordance with the procedure contemplated
under the Juvenile Justice (Care and Protection of
Children) Act, 2015.
3. The appellant/accused was tried for the
offences punishable under Sections 302, 397, 307 and 449
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read with 34 of the Indian Penal Code, 1860 (for brevity
‘IPC’). Vide impugned Judgment, dated 06.02.2020, the
learned Sessions Judge convicted the appellant/accused of
the offences punishable under Sections 302, 397, 307 and
449 read with 34 IPC and sentenced him to undergo
rigorous imprisonment for a period of seven (07) years for
the offence punishable under Section 397 IPC and to
undergo imprisonment for life concurrently for the offences
punishable under Sections 449 and 307 IPC (under two
counts) and the sentence of life imprisonment shall be full
span of life without any remission. Further, the accused
was ordered to hanged by the neck till he is dead for the
offence punishable under Section 302 IPC (under two
counts), as contemplated under Section 353 (5) of the
Code of Criminal Procedure, 1973 (for brevity ‘CrPC’)
subject to confirmation by this Court under Section 366
CrPC.
4. The substance of charges as against the
accused is that on 12.02.2013 at about 11.30 a.m., at
Door No.16-11-325, 1st floor, 2nd street, Haranadhapuram,
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Nellore, the accused caused the death of one Asodhi
Sakunthala and Asodhi Bhargavi (hereinafter referred to,
as ‘D1’ and ‘D2’, respectively) using deadly weapons viz.
button knife and iron pipe and thereby committed an
offence punishable under Section 302 IPC.
In the course of same transaction, on the same date,
time and place mentioned above, the accused did commit
dacoity of one mobile phone and gold jewellery viz. gold
bondu sarudu, gold chain, gold ear studs and anklets from
the body of the deceased and thereby committed an
offence punishable under Section 397 IPC.
In the course of same transaction, on the same date,
time and place mentioned above, the accused stabbed
P.Ws.1 and 2 with button knife and beat with iron pipe,
with such intention and under such circumstances that if
by that act the accused had caused death of P.Ws.1 and 2,
he would have been guilty of murder, and thereby
committed an offence punishable under Section 307 IPC.
In the course of same transaction, on the same date,
time and place mentioned above, the accused committed
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house trespass along with J1 and J2, by entering into the
house of P.W.1, used as a human dwelling, in order to
commit an offence punishable with death and thereby
committed an offence punishable under Section 449 read
with 34 IPC.
5. Case of the prosecution, in brief, is as follows:
P.W.1 is husband of D1 and father of D2. P.Ws.3 and
4 are related to P.W.1. D1 was housewife and D2 was
studying III year MBBS in Narayana Medical College,
Nellore. P.W.1 was dropping D2 at her Medical College by
his car, everyday. On 12.02.2023, as usual, P.W.1 dropped
D2 at her college at 10.00 a.m. At about 11.30 a.m. on
that day, P.W.1 received a phone call from D2 stating that
classes were not functioning on that day and she came
back home. At about 12.00 noon, P.W.1 received another
phone call from D2 stating that the accused was with her
and asked P.W.1 to speak with the accused, as the latter
came to the house along with two others. P.W.1 spoke with
the accused over phone. The accused was an Architect and
used to prepare building plans and elevations. P.W.1
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& RT 1 of 2020asked the accused to put the plans in e-Mails and asked
him to go away from the house. At about 12.30 noon,
P.Ws.3 and 4 informed P.W.1 over phone that they went to
house of P.W.1, but nobody was responding to the calling
bell of the house. On that, P.W.1 tried to contact through
landline of his house and also tried to contact D2 over cell
phone. But, nobody responded to the same. By that time,
P.W.1 was in the college premises. He informed the same
to his staff, P.W.2 and asked him to accompany to his
house. Accordingly, P.Ws.1 and 2 went to his house. P.W.1
enquired P.Ws.3 and 4 as to what had happened. P.Ws.3
and 4 informed that the accused stabbed D1 with knife
indiscriminately on her neck and other two persons caught
hold of the hands of D1 at the time of the stabbing. P.W.1
noticed that front door of the house was locked from
inside. On that, P.W.1 asked P.W.2 to check the backdoor
of the house through bathroom. P.W.1 waited at the front
door and P.W.2 entered the house from back way. After
some time, P.W.1 heard cries of P.W.2. Meanwhile,
accused came out of the house from the main door by
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J2 also came along with accused and stabbed P.W.1 with
knife on left side of stomach. At that time, J1 also came
with accused and J2. The accused picked up an iron pipe
and tried to beat on the head of P.W.1 but, P.W.1 escaped
from that blow and sustained injury on left jaw. The
incident occurred in the first floor of the building. Then,
the accused got down from the first floor of the building
through steps. Meanwhile, public gathered at his house.
J1 and J2 entered the right side bedroom of the first floor
building and hid in that room. Then, all of them went to
front side of the house and saw D1 with bleeding injuries
at her neck without any moment. P.W.2 also sustained
bleeding injuries on his head and hands. P.W.2 saw D2 on
her bed in southern side room without any moment. P.W.2
informed P.W.1 that J2 caught hold the hands of D2 and
J1 caught hold neck of D2 and accused murdered D2 by
pressing her neck. P.W.1 found missing of gold ornaments
from the bodies of D1 and D2. Somebody informed about
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the incident to 108 ambulance, wherein, P.Ws.1 and 2
along with D1 and D2 were shifted to Bollineni Hospital.
On 12.02.2013, P.W.19-Sub-Inspector of Police, IV
Town Police Station, Nellore, on receipt of oral information
about the incident, visited the place of occurrence i.e.
house of P.W.1. P.W.19 informed the same to P.W.21-Sub-
Divisional Police Officer, Nellore, over phone. P.W.19 found
D1 and D2 and two injured persons. The accused were
caught hold of by the public at the house of P.W.1.
Thereafter, the injured and the deceased were shifted to
Bollineni Hospital by 108 ambulance. P.W.19 recorded
Ex.P1-statement of P.W.1 in hospital, as he received
Ex.P30-Hospital Intimation. Basing on Exs.P30 and P1, he
registered a case in Crime No.45 of 2013 for the offences
punishable under Sections 302 and 397 IPC under
Ex.P31-FIR.
On 12.02.2023 at about 12.45 noon, P.W.21, on
receipt of information that an attempt of robbery took
place at Haranadapuram, Nellore, and the accused hidden
at the scene of offence, he immediately secured his staff
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and rushed to the scene of offence. In the meanwhile,
P.W.19 and his staff also rushed to the spot. P.W.21 found
that accused were caught hold by the public. Then, he
took them into custody. On receipt of Ex.P31-FIR, he took
up investigation, secured the presence of mediators P.Ws.8
and 10 and seized (1) Bangaru Saradu; (2) Bangaru
Chantatu Chain (one); (3) Bangaru Sada Butta Kammalu
(two pairs); (4) Bangaru Vangaputha Tellaralla Kammala
Jatha; (5) Nalupu Rangu Pusalu thodigina Bangaru
Kammalu (one pair); (6) One pair of car studs having white
blue stones; (7) One pair of gold Jumkielu; (8) One ear
studed with white and green stones, and (9) One pair of
silver anklets, from the possession of the accused. P.W.1
further seized one blood stained wooden tilt button knife
(M.O.1) from the pocket of J1. He further seized M.Os.2, 4
to 8 from J2. Due to aggressive mob, P.W.21 shifted the
accused and the Juveniles to IV Town Police Station for
safe custody. He prepared scene observation panchanama-
cum-seizure. During seizure panchanama, P.W.1 seized
bed sheet of double cot and pillows having blood stains
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(M.O.10) and M.O.11 from master bedroom and also seized
iron pipe having blood stains (M.O.9), apart from M.Os.16
to 19 and obtained blood samples from the pool of blood.
He prepared rough sketches of the scene of offence under
Exs.P34 and P35. Thereafter, he conducted inquest over
the dead body of D1 in the presence of P.W.10 and others.
On the instructions of P.W.21, P.W.9 conducted inquest
over the dead body of D2. Thereafter, P.W.21 examined
P.Ws. 1 and 2 and recorded their statements.
On 12.02.2013, on representation from P.W.21,
P.W.12-Associate Professor, ACSR Medical College, Nellore,
conducted post-mortem examination over the dead body of
D1 and D2 and issued Exs.P21 and P22-post-mortem
certificates of D1 and D2, respectively. According to the
Doctor, cause of death of D1 is due to shock and
hammaerohage on account of multiple stab injuries and
cause of death D2 is due to asphyxia on account of
throttling.
P.W.21 took up further investigation. On 17.12.2013,
on the request of the Finger Print Inspector, P.W.21 sent
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Finger Prints of accused and juveniles to the Finger Print
Bureau, Nellore. He conducted Test identification of
properties through P.W.1 in the presence of P.W.11 and
another under Ex.P20. On 24.02.2013, he recorded
Ex.P12-confessional statement of the accused in the
presence of P.W.10 and another, whereunder, the accused
confessed about his involvement in two other crimes
relating to old woman murders at Balaji Nagar and
Ramurthy Nagar and committing theft of gold ornaments
along with J1 and another. In pursuance of the confession,
P.W.1 along with accused went to the house of father of
the accused, wherein, the accused went inside of his office
and brought three gold bangles and one gold chain and
one gold ring pertaining to other cases and dish wire, used
in commission of murder in the said case.
After obtaining proceedings of the Test Identification
Parade and other relevant documents, and after
completion of investigation, P.W.21 filed charge sheet
against the accused.
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6. The case was taken on file as P.R.C. No.18 of
2013 on the file of the V Additional Judicial Magistrate of
First Class, Nellore. After furnishing copies of documents,
as the offence is exclusively triable by the Court of
Session, the learned Magistrate committed the case to the
Court of Session, Nellore. The learned Principal Sessions
Judge, Nellore took the case on file as S.C.No.59 of 2014
and made over the same to the trial Court. The learned
Sessions Judge framed charges under Sections 302, 397,
307 and 449 read with 34 IPC against the accused, and
when the same was read over and explained to the
accused in his vernacular language, the accused denied
the same and claimed to be tried.
7. During trial, P.Ws.1 to 21 were examined and
Exs.P1 to P39, besides case properties M.Os.1 to 25 were
got marked, on behalf of the prosecution. After completion
of prosecution side evidence, the accused was examined
under Section 313 CrPC to explain the incriminating
circumstances appearing against him in the evidence of
prosecution witnesses. The accused pleaded innocence.
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On behalf of defence, D.Ws.1 and 2 were examined and
Exs.D1 to D6 were got marked. The learned Sessions
Judge, after appreciating of the evidence on record,
convicted and sentenced the accused as stated supra.
Challenging the same, the present Criminal Appeal is
preferred by the accused.
8. Since one of the sentences passed by the
learned Sessions Judge is a sentence of death, the learned
Sessions Judge submitted the proceedings to this Court in
accordance with Section 366 CrPC, for confirmation.
Therefore, Referred Trial No.1 of 2020 is taken on file.
9. Sri P.Veera Reddy, learned senior counsel
appearing on behalf of the appellant contended that there
are number of discrepancies and contradictions in the
evidence of material prosecution witnesses P.Ws.1 and 2,
and basing on the said evidence, it is not safe to convict
the accused of the aforesaid offences. According to the
learned senior counsel, the First Information Report is hit
by Section 162 CrPC and there are overwritings in the
First Information Report as to when the report was made,
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because of overwriting with regard to date in the First
Information Report. According to the learned senior
counsel, the accused is an Architect by profession and he
is a highly qualified person, and the explanation given by
the accused in his examination under Section 313 CrPC is
more probable in the facts and circumstances of the case.
According to him, the learned Sessions Judge erred in not
attaching the importance to the statement of the accused
given in his examination under Section 313 CrPC.
The learned senior counsel further submitted that
the entire investigation conducted by the police is
perfunctory, since police failed to collect call-data of mobile
phones of P.W.1 and D2. He further emphasized that the
investigating officer failed to take steps to collect foreign
material in the nails of the accused and juveniles, as there
were nail scratches at the neck of D2 and that, the
investigating officer failed to seize memory card pertaining
to the video from the concerned videographer and also
failed to take photographs of the motorcycles at the time of
the seizure of the said motorcycles. In the absence of
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police not conducting investigating in a proper perspective,
the links to form the chain are missing and the same
would go to the root of the case. The learned senior
counsel further submitted that a perusal of evidence of
P.W.2 would go to show that the explanation given by the
accused is more probable in the facts and circumstances
of the case. The learned senior counsel submitted that the
learned Sessions Judge has not considered the evidence
on record in proper perspective and erred in convicting
and sentencing the accused and hence, the accused is
entitled to benefit of doubt.
10. On the other hand, learned Public Prosecutor
appearing for the State contended that P.W.1 is a sterling
witness, and so also, he is an injured witness. The defence
cross-examined P.W.1 at length but, nothing has been
elicited in his cross-examination to tilt the case of
prosecution. According to him, in a case of this magnitude,
some minor discrepancies and lacunae are bound to occur
and as long as the same would not go to the root of the
case, much significance cannot be given to them. In the
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case on hand, the inconsistencies or contradictions, if any
would not go to the root of the case and the evidence of
material prosecution witnesses is consistent and
trustworthy. According to him, the Judgment of the
learned Sessions Judge is well-reasoned and calls for no
interference by this Court.
11. Now, the point that arises for determination is
whether the prosecution is able to bring home the guilt of
the appellant/accused for the offences punishable under
Sections 302, 397, 307 and 449 read with 34 IPC beyond
all reasonable doubt and whether the conviction and
sentence recorded by the learned Sessions Judge are liable
to be set aside or modified?
12. P.W.1 is husband of D1 and father of D2. Every
day he used to drop his daughter at her medical college by
his car. On 12.02.2013, as usual, P.W.1 dropped D2 at her
college at 10.00 a.m. At about 11.30 a.m., since classes of
D2 were not functioning, she went back home. At about
12.00 noon P.W.1 received a phone call from D2 stating
that the accused was with her and asked him to speak
with the accused, as the accused went to his house along
with two others. P.W.1 spoke over phone with the accused
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and suggested him to put the plans in e-Mails and asked
him to go away from the house. At about 12.30 noon,
P.Ws.3 and 4 informed over phone to P.W.1 that they went
to his house but, nobody was responding to the calling
bell. On that, P.W.1 tried to contact through landline of his
house and also tried to contact D2 over cellphone. As
nobody responded to the said phone calls, P.W.1, along
with P.W.2, went to his house. P.W.1 enquired with P.Ws.3
and 4 directly as to what happened. P.Ws.3 and 4
informed that the accused stabbed D1 with a knife
indiscriminately on her neck and the other two persons
caught hold hands of D1 at the time of stabbing by the
accused. P.W.1 noticed that front door of the house was
locked from inside. P.W.1 asked P.W.2 to check backdoor
of the house through bathroom and waited at the front
door. After sometime P.W.1 heard cries of P.W.2. In the
meanwhile, the accused came out of his house from the
main door by opening the door and sprayed pepper on his
face. J2 also came along with the accused and stabbed
P.W.1 with knife on his left stomach. At that time, J1 also
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came with the accused and J2. The accused picked up an
iron pipe and tried to beat on the head of P.W.1, but P.W.1
escaped that blow and sustained injury on his left jaw.
Then, the accused got down from the first floor of the
building through steps. Meanwhile, public gathered at the
house of P.W.1. At that time, J1 and J2 entered into the
right side bedroom of the first floor of the building and hid
themselves in the room. Then, all the witnesses went
towards front side of the house and saw D1 with bleeding
injuries at her neck and D2 lying on her bed without any
moment. As someone informed 108 ambulance, the
injured and D1 and D2 were shifted to Bollineni Hospital,
Nellore.
13. P.W.2 did not support the case of prosecution
and he was treated hostile.
14. P.Ws.3 and 4 are related to P.W.1. P.W.1 is
their cousin. P.W.3 is an illiterate. She is not resident of
the village of P.W.1. She deposed that about five or six
years back, the incident occurred in the house of P.W.1.
On that day, herself and P.W.4, who is her co-daughter-in-
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law came to the village of P.W.1 at about 12.25 p.m. P.W.3
pressed the calling bell of the house of P.W.1. But, nobody
opened the door of the house. On that, she contacted
P.W.1 over phone. P.W.1 informed P.W.3 to wait at the
house and he was coming to the house. In the meanwhile,
P.W.3 heard cries of D1. She peeped into the house of
P.W.1 through window and say two lean persons of small
age, catching hold of hands of D1 and accused stabbing
D1 with a kathi, at her neck. In the meanwhile, P.W.1,
P.W.2 and another came to the house of P.W.1 and P.W.1
sent P.W.2 into the house through back way of the house.
After sometime, P.W.3 heard cries of P.W.2. Accused
opened the door and at that time, the accused sprayed
chilly powder on P.W.1 and beat him with an iron pipe on
his head. But, P.W.1 escaped from that blow and
sustained injury on his left jaw. One small boy of red
colour stabbed P.W.1 on his stomach, with kathi and she
saw D1 lying on the floor on the left side in a pool of blood.
P.W.3 further deposed that they entered into the house
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and found D2 on the cot without any moment. Thereafter,
the injured, D1 and D2 were shifted to the hospital.
15. P.W.4 is also a cousin of P.W.1. She too
narrates in the same lines as P.W.1 stated.
16. P.W.5 states that about five years back, when
she was at her house, the accused and two other minor
boys parked their motorcycles by the side of her house.
The said three persons went to the house of P.W.1 and
half-an-hour thereafter, P.W.1 came to his house and,
suspecting something, she followed the car of P.W.1, saw
people gathered at the house of P.W.1 and also saw the
accused coming out of the house of P.W.1 and spraying
something like chilly-powder and beating P.W.1 with an
iron rod. Thereafter, one of the two minor boys beat P.W.1
with a rod on his left jaw. She further deposed that she
was examined by the police after three days of the
incident.
17. P.W.6 is the photographer. On the date of the
incident, on request of police, P.W.6 went to scene of
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offence and videographed the offence. Ex.P5-CD relating to
the crime was handed over to P.W.21-DSP.
18. P.W.7 is the videographer. On request, he
videographed the scene of offence.
19. P.W.8 is the mediator. According to him, police
apprehended the accused and seized Samsung Galaxy cell
phone and silver and gold ornaments under the cover of a
Mediatornama. He deposed in his cross-examination that
he observed that there was no injury on the body of the
accused and accused was walking freely at that time. He
also acted as one of the mediators when police conducted
inquest over the dead body of D2 under Ex.P9-Inquest
Report.
20. P.W.9 was doing business in finance. He
deposed that his executive participated in the auction of
the vehicles conducted by Bajaj Finance and became
successful bidder. His executive sold away the vehicle
bearing No.AP26 AK 2593 to J2 on finance on 03.12.2012.
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Police seized the documents pertaining to the said two-
wheeler.
21. P.W.10 is the mediator for inquest of D1. He
deposed about the inquest conducted by police over the
dead body of the D1 under Ex.P11-Inquest Report.
22. P.W.11 is mediator for the confessional
statements of the accused and J1 and J2 and also seizure
of M.Os.12 and 13. Ex.P.18 is the Confession-cum-Seizure
Mahazar. He also deposed about seizure of M.Os.14 and
15. Ex.P19 is the Mahazar. He also deposed about
conducting of Test identification of properties through
P.W.1 in his presence under Ex.P20-Proceedings of Test
Identification Parade of properties.
23. P.W.12, Associate Professor, ACSR Medical
College, Nellore, deposed in his evidence that on
12.02.2013, on requisition by P.W.21, he conducted post-
mortem examination over the dead body of D1 and found
the following external injuries:
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1. A stab injury on chest between both
collar bones of chest size 2.5 x 1.5 cm deep
present edges are red in colour;
2. A stab injury 1.5 cm below the above
injury of size 2.5 x 1 x 3 cm deep present,
edges are red in colour;
3. A stab injury on right hand between
thumb and index finger on palmar side of size
2.5 x 2 x 3 cm deep and opens on back of
hand;
Ribs and chest wall, deeply congested,
500 ml of blood pooled in chest cavity of
lungs and heart pale.
According to the Doctor, the cause of death of D1 is
due to shock and hammaerohage on account of multiple
stab injuries. Ex.P.21 is the Post-Mortem Examination
report of D1.
He also deposed that on the same day, at about 6.30
to 7.00 p.m., he conducted post-mortem over the dead
body of the D2 and found the following injuries:
1. Scratch abrasions of each size 1 cm on both
sides of neck due to nails present, 8 in number;
2. Neck: – neck structures deeply congested
hyoid bone, right horn fracture in its middle;
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3. Lungs and Pleural cavities / Heart congested;
4. Liver and other structures also congested.
According to the Doctor, the cause of death of D2 is
due to asphyxia on account of throttling. Ex.P22 is the
Post-Mortem Examination Report of D2.
In re-examination, P.W.12 deposed that the injuries
on D1 are possible with M.O.1/button knife.
24. P.W.13, who worked as Superintendent of
Government Observation Home for Boys, Tirupati, deposed
that on 24.02.2013 at about 11.30 AM, on receipt of
orders of the Magistrate (Juvenile Court, Nellore), P.W.15
examined J1 and J2 and recorded their statements in the
presence of P.W.13.
22. P.W.14, Casualty Medical Officer, KIMS Super
Specialty Hospital, Nellore, deposed that he examined
P.Ws.1 and 2 on 12.02.2013 at about 1.30 PM. Exs.P23
and 24 are the wound certificates of P.Ws.1 and 2
respectively. He further deposed in his cross-examination
that there was no mention in the wound certificates with
regard to burning sensation to P.Ws.1 and 2 due to pepper
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spraying. According to P.W.14-Doctor, P.Ws.1 and 2
received grievous and simple injuries.
25. P.W.17-the then IV Additional Judicial Magistrate
of First Class, Nellore, conducted test identification parade of
accused through P.Ws.3 and 4, wherein they identified the
accused. Ex.P26 is the test identification proceedings.
26. P.W.18-Inspector of Police/Finger Print Expert
at Kurnool, deposed that on 12.02.2013, he visited the
scene of offence, examined all the items of the articles
suspected to have been handled by the culprits. He
further deposed that during the course of his examination
and development, 7 chance prints were disclosed on the
scene of crime articles, which are marked as A, B, C, D, E,
F and G. Ex.P27-visiting scene of offence report; Ex.P28
is the chance prints 3 (A, C and G) and Ex.P29 is chance
prints identical report with accused, J.1 and J2 dated
01.03.2013. According to P.W.18, the chance prints
marked as A, C and G were compared with the arrested
accused, J1 and J2, and found that the change print
marked A is identical with the right middle finger
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impression of accused; the chance print marked as C is
identical with the thumb impression of J.1 and the chance
print marked as G is found identical with right ring finger
impression on the finger print slip of J.2.
27. The learned Sessions Judge relied on the
evidence of P.Ws.1, 3 to 6 in convicting and sentencing the
accused. On a perusal of the evidence of P.W.1 goes to
show that there is nothing to infer adverse so as to tilt the
case of prosecution. P.W.1 categorically stated that on
the fateful day, on receipt of call from P.Ws.3 and 4, he
went to his house and got information through P.Ws.3 and
4. When P.W.1 was standing at the main door, the
accused came out of his house from main door by opening
the door and spread pepper on his face. J2 also came
along with the accused and stabbed P.W.1 with knife on
his left stomach. The accused picked up an iron rod and
tried to beat on P.W.1’s head, as a result, he sustained
injury on his left jaw. This evidence of P.W.1 has not been
shaken in cross-examination also. It is apparent on the
record that the accused is known to P.W.1 for the last 1 ½
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years. A phone call by D.2 to P.W.1 with regard to arrival
of the accused to the house of P.W.1 at about 12.00 noon
on the date of the incident, goes to show that inmates of
the house of P.W.1 i.e. deceased 1 and 2, are well
acquainted with the accused.
28. Primary consideration is, it is not the case of
prosecution that P.W.1 invited the accused to his house to
come at about 12.00 noon on the fateful day. In the
absence of any evidence to show that the accused was
asked to come to the house of P.W.1, it can be inferred
that the accused volunteered himself to go to the house of
P.W.1 along with two others. There is no reason as to why
the accused went to the house of P.W.1 in order to submit
a building plan and elevations to P.W.1, more particularly
knowing well that P.W.1 would not be in the house during
the relevant point of time. It is pertinent to mention here
that defence of the accused that there were two other
persons in the house and he was dragged into the house,
appears to be a concocted story, when there is no evidence
to the extent that P.W.1 invited the accused to his house
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in order to submit the building plans. On a perusal of the
evidence of P.W.1 goes to show that D.2 called P.W.1 and
informed him with regard to arrival of the accused to their
house. At that time, P.W.1 also spoke to the accused and
told him to put the plans in e-mails and asked him to go
away from the house. Therefore, it can be inferred that the
accused was present in the house of P.W.1. If really the
statement of the accused that four other accused were
present in the house and he was dragged into the house
by the other accused, cannot be accepted for the reason
that if really such an incident is said to have taken place,
the accused would have lodged a complaint in police
station or in case if he was not able to lodge a complaint in
police station, he would have brought the same to the
notice of the Magistrate at the time when he was produced
for remand. None of such incidents had taken place. By
virtue of the same, it can be concluded that the accused
along with two others went to the house of P.W.1.
29. Apart from the same, it has been categorically
stated by P.W.1 that the accused took an iron pipe and
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tried to beat on his head, but he escaped from that blow
and sustained injury on his left jaw. P.W.1 is the injured
witness and he is the best person to speak with regard to
the fact as to who caused injury to him. Thereafter, when
the accused went down from first floor of the house
through steps, he was caught by public gathered at the
house of P.W.1. The other two persons J1 and J2 entered
into right side bed room of the first floor of the building
and hid themselves in that room. They too were caught by
the public red-handed. Nothing has been elicited in
cross-examination of P.W.1 so as to disbelieve the version
given by P.W.1 in his examination-in-chief. A suggestion
was put to him to the extent that two other persons who
are involved in the case, escaped from P.W.1’s house by
jumping from compound wall. P.W.1 denied the said
suggestion.
30. P.W.2 is another injured witness. But, he did
not support the prosecution case and was treated hostile
by the prosecution.
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31. It is clear from the evidence of P.Ws.3 and 4,
who are cousins of P.W.1, that they went to the house of
P.W.1 at about 12.24 noon and pressed calling bell of the
house. Since nobody opened the door of the house of
P.W.1, they contacted P.W.1 over phone. P.W.1 informed
them to wait at the house as he was coming to the house.
They informed P.W.1 that they saw the accused stabbing
D1 and when J1 and J2 were holding hands of D.1.
32. Learned senior counsel appearing on behalf of
the accused submitted that the investigating agency did
not collect any call data so as to prove whether P.Ws.3 and
4 and D.2 called P.W.1 on the fateful day. According to
him, the incident did not take place, as suggested by the
prosecution. This Court is of the opinion that call data is
essential in the absence of any eye-witnesses’ account
whether the accused was present in the house or not.
P.Ws.3 and 4 were present at the scene of offence at the
relevant point of time of the incident. They saw the
accused stabbing D.1 on the neck.
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33. The learned senior counsel tried to demonstrate
by taking the Court to Ex.P34-rough sketch of the scene of
offence, by stating that even if P.W.3 peeped into the
window, she would not have seen the actual incident that
took place in the house of P.W.1 for the reason that the
dead body of D.1 was found at the dining table, and hence,
P.W.3 could not have witnessed the incident. When P.W.3
was witnessing the incident and peeped through window,
the accused must be causing injuries to D.1 and
ultimately the dead body must have laid at the dining
table. Apart from the same, since there is no dispute from
the case of the prosecution and the defence that the
presence of the accused is not disputed at the relevant
point of time of the incident. Merely stating that four
other persons were involved in the said offence, it would
not preempt the entire case of the prosecution.
34. The learned senior further contended that
entire investigation conducted is perfunctory for the
reason that the investigating officer did not collect foreign
material in the nails of the accused and juveniles, as there
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were nail scratches at the neck of D2. On this aspect, it is
pertinent to refer to a decision in Sonvir v. State (NCT of
Delhi)1, wherein it is held that provisions of the
Identification of Prisoners Act, 1920 are not mandatory,
but rather directory, and that they only affirm the bona
fides of the sample taking (of the fingerprints of an
accused) and eliminate the possibility of evidence
fabrication. The Hon’ble Apex Court, however, made it
clear that not following or complying with the provisions of
the Act, would not per se vitiate the evidence in a given
case. The same was affirmed in Ashish Jain v. Makrand
Singh2.
35. Though there are certain discrepancies in the
evidence of P.Ws.3 and 4, they are minor in nature and
would not in any way go to the root of the prosecution case
so as to tilt the prosecution case. P.W.5 is one of the
witnesses who saw the accused coming out of the house of
P.W.1 and spraying something like chilly powder and
beating P.W.1 with an iron rod. He further stated that he
1
(2018) 8 SCC 24
2
(2019) 3 SCC 770
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was examined by police, three days after the incident,
which throws any amount of ambiguity whether P.W.5 was
present at the scene of offence or not, at the relevant point
of time of the incident. It is relevant to mention here that
if really P.W.5 witnessed the incident, there is no reason as
to why he did not volunteer to come forward and reveal the
same to the investigating officer at the earliest point of
time. He kept quiet for a period of three days without
informing to anyone.
36. P.W.17-Magistrate conducted test identification
parade of the accused wherein P.Ws.3 and 4 identified the
accused and it throws further light that it is the accused
who committed the offence.
37. Admittedly, the accused was present at the
scene of offence on the fateful day. There is no dispute
with regard to the same. Section 106 of the Indian
Evidence Act, 1872 places onus on him. The accused has
not produced any material to show as to how the incident
had taken place. In the absence of any material produced by
the accused, it has to be accepted that the accused and
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others were the ones who caused the death of D1 and D2.
Apart from the same, the accused and two others were
caught on the spot by the public at the scene of offence. On
a perusal of the entire evidence on record goes to show
that it is the accused along with J1 and J2 who went to
the house of P.W.1 with a pre-determined plan and
without there being any invitation from P.W.1. Thereafter,
he attacked both the deceased in the house in order to
commit robbery in the house. The evidence of P.Ws.1, 3
and 4 is consistent without there being any discrepancy or
inconsistency with regard to the incident proper.
Therefore, in the facts and circumstances of the case, we are
satisfied that there is sufficient evidence on record that
accused and J1 and J2 are the ones who caused death of D1
and D.2. The said factum stands established.
37. The learned Sessions Judge, upon appreciation
of the evidence on record in right perspective, found the
accused guilty of the offences punishable under Sections
302, 397, 307 and 449 IPC and rightly convicted him of
the said offences, and there are no grounds to interfere
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with the convictions recorded by the learned Sessions
Judge.
SENTENCE:
38. Insofar as sentence is concerned, the learned
Sessions Judge imposed death penalty hanging by the
neck till he is dead for the offence punishable under
Section 302 IPC (under two counts). It is settled law that
unless a case falls under rarest of rare cases, the capital
punishment cannot be imposed. On this aspect it is
pertinent to refer to a decision of the Constitution Bench of
the Hon’ble Apex Court in Bachan Singh v. State of
Punjab3, wherein it is held thus: (paragraphs 206 and
209).
“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
AIR 1980 SC 898
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(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 facts 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.”
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-emphasised 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 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 guide-lines indicated by
us, 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
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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.”
39. Learned senior counsel appearing for the
accused relied upon relevant paragraphs in the decision in
Manoj and others v. State of Madhya Pradesh (4 supra).
(paragraphs 214, 215, 216, 217 and 218).
“214. Capital punishment is prescribed in numerous
IPC offences, including murder, kidnapping for ransom,
rape and injury causing death or leaving a woman in a
vegetative state, rape or gang rape of a child below 12
years’ old, dacoity with murder, among other offences.
In Bachan Singh v. State of Punjab [Bachan Singh v.
State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580]
(hereafter “Bachan Singh”), this Court had upheld the
imposition of death penalty as an alternate punishment
under Section 302IPC on the strength of the 35th Report
of the Law Commission of India (1967), the judgment in
Jagmohan Singh v. State of U.P. [Jagmohan Singh v.
State of U.P., (1973) 1 SCC 20 : 1973 SCC (Cri) 169]
(which had also noted that the 35th Report advocated
for retention) and in several subsequent cases decided
by this Court, in which the death penalty was
recognised to be a deterrent. It laid emphasis on the
then recently added Sections 253(2) and 354(3)CrPC
which provide for bifurcated pre-sentence hearing and
sentencing procedure on conviction of capital offences,
to conclude that this form of punishment continued to
have legislative backing and thereby, represented the
will of the people.
215. It is undeniable that there have been shifts in how
punishment in capital offences are dealt with. This is
apparent when developments are looked at holistically,
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& RT 1 of 2020or at a macrolevel : the amendments to the CrPC by
Parliament, the 35th and 262nd Law Commission
Reports which stand over 30 years apart, and the
precedents of this Court, across the decades. Initially,
the law imposed a requirement of written reasons for not
imposing death penalty, which was removed in 1955. In
1973, through further amendment to the CrPC and
insertion of Section 354(3) — life imprisonment became
the norm and imposition of death penalty required
“special reasons”; and through Section 253(2) —
sentencing required separate consideration from the
question of conviction. In both phases i.e. post-1955
and post-1973, capital punishment was upheld to be
constitutional by five-Judge Benches of this Court in
Jagmohan Singh [Jagmohan Singh v. State of U.P., (1973)
1 SCC 20 : 1973 SCC (Cri) 169] and Bachan Singh
[Bachan Singh v. State of Punjab, (1980) 2 SCC 684 :
1980 SCC (Cri) 580] , respectively.
216. The 262nd Law Commission Report on Death
Penalty (2015) (hereafter “the 262nd Report”), is a result
of this Court’s references in primarily two cases. Firstly,
in Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra [Santosh Kumar Satishbhushan Bariyar v.
State of Maharashtra, (2009) 6 SCC 498, para 112 :
(2009) 2 SCC (Cri) 1150] (hereafter “Santosh Bariyar”)
where, after taking note of the UN General Assembly
Resolution 62/149 [ Adopted on 18-12-2007.] it was
pointed out that credible research was required to shape
an informed discussion and debate, on the contentious
issue of death sentence. Secondly, the judgment in
Shankar Kisanrao Khade v. State of Maharashtra
[Shankar Kisanrao Khade v. State of Maharashtra,
(2013) 5 SCC 546, paras 148-149 : (2013) 3 SCC (Cri)
402] tasked the Law Commission to resolve the issue of
whether death penalty is a deterrent punishment, is
retributive justice, or serves an incapacitative goal; and
to study the difference in approach adopted by the
judiciary (rarest of rare) and the executive (what was
termed as unknown) while granting commutation. In
attempting to fulfil this mandate, the Commission
discerned an urgent need for re-examination of its own
earlier recommendations on the death penalty (in its
35th Report, 1967), given the drastic change in social,
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& RT 1 of 2020economic, and cultural contexts of the country since the
35th Report, and arbitrariness which has remained a
major concern in the adjudication of death penalty cases
since Bachan Singh [Bachan Singh v. State of Punjab,
(1980) 2 SCC 684 : 1980 SCC (Cri) 580] laid down the
foundational principle of “rarest of rare”.
217. Reflective of changed circumstances and evolving
discourse, the Report marks a shift in the approach
towards the death penalty in India, going so far as to
recommend abolition in all offences, except those
relating to terrorism. A large part of the Report focusses
on courts’ discretion and judicial reasoning when it
comes to sentencing. It concludes that death penalty
sentencing in India has been based on an arbitrary
application of the Bachan Singh [Bachan Singh v. State
of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580]
principle, and has become Judge-centric, based on the
personal predilection of Judges — a concern which was
alluded to even by this Court in Swamy Shraddananda
(2) v. State of Karnataka [Swamy Shraddananda (2) v.
State of Karnataka, (2008) 13 SCC 767 : (2009) 3 SCC
(Cri) 113] and analysed extensively again in Santosh
Bariyar [Santosh Kumar Satishbhushan Bariyar v. State
of Maharashtra, (2009) 6 SCC 498, para 112 : (2009) 2
SCC (Cri) 1150] , followed by Sangeet v. State of
Haryana [Sangeet v. State of Haryana, (2013) 2 SCC 452
: (2013) 2 SCC (Cri) 611] , Mohd. Farooq Abdul Gafur v.
State of Maharashtra [Mohd. Farooq Abdul Gafur v. State
of Maharashtra, (2010) 14 SCC 641 : (2011) 3 SCC (Cri)
867] , and more recently in Chhannu Lal Verma v. State
of Chhattisgarh [Chhannu Lal Verma v. State of
Chhattisgarh, (2019) 12 SCC 438 : (2019) 4 SCC (Cri)
402] (hereafter “Chhannu Lal Verma”).
The death penalty framework and how to apply it for
“principled sentencing”
218. This Court in Bachan Singh [Bachan Singh v. State
of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] while
upholding the constitutionality of capital punishment,
categorically ruled that the new CrPC of 1973 marked a
shift as it bifurcated the criminal trial to include a pre-
sentence hearing [under Section 235(2)], and further
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mandated the sentencing court to outline the “special
reasons” [under Section 354(3)] or absence of them, by
considering circumstances both of the crime and the
criminal. The Court also noted that while broad
guidelines or indicators may be given, they cannot be
put into water-tight compartments that curb discretion
of any Judge to do justice in a given individual case :
(SCC pp. 739 & 748, paras 163 & 201)
“163. … Now, Section 235(2) provides for a bifurcated
trial and specifically gives the accused person a right of
pre-sentence hearing, at which stage, he can bring on
record material or evidence, which may not be strictly
relevant to or connected with the particular crime under
inquiry, but nevertheless, have, consistently with the
policy underlined in Section 354(3), a bearing on the
choice of sentence. 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.
***
201. … As we read Sections 354(3) and 235(2) and other
related provisions of the 1973 Code, it is quite clear to
us that for making the choice of punishment or for
ascertaining the existence or absence of “special
reasons” in that context, the court must pay due regard
both to the crime and the criminal. What is the relative
weight to be given to the aggravating and mitigating
factors, depends on the facts and circumstances of the
particular case. More often than not, these two aspects
are so intertwined that it is difficult to give a separate
treatment to each of them. This is so because “style is
the man”. In many cases, the extremely cruel or beastly
manner of the commission of murder is itself a
demonstrated index of the depraved character of the
perpetrator. That is why, it is not desirable to consider
the circumstances of the crime and the circumstances of
the criminal in two separate watertight compartments.
In a sense, to kill is to be cruel and therefore all murders
are cruel. But such cruelty may vary in its degree of
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culpability. And it is only when the culpability assumes
the proportion of extreme depravity that “special
reasons” can legitimately be said to exist.”
(emphasis in original)”
40. Relying upon the aforesaid decisions, the
learned senior counsel appearing for the accused
submitted that the Court below has not even considered
the possibility of reformation of the accused. He further
submitted that the case on hand does not fall under rarest
of rare cases to impose the capital punishment, and the
mitigating circumstances submitted by the authorities
would suffice that capital punishment is not warranted in
the case on hand.
41. On the other hand, the learned Public
Prosecutor appearing for the State submitted that cruelty
is quite evident from the nature of the crimes that have
been registered as against the accused. He further
submits that those circumstances are enough to warrant
nothing less than capital punishment, which is rightly
imposed by the learned Sessions Judge. According to
him, it is in the cases like the present one, where the
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& RT 1 of 2020‘rarest of rare’ doctrine needs to be invoked as a deterrent,
for the reason that the accused was involved in three
crimes wherein in two crimes, he was accused of
committed murder with an intention to commit theft in the
houses.
42. Before hearing the Criminal Appeal, this Court
directed the District Collector, Nellore; (2) the Deputy
Superintendent of Police, Nellore and (3) the
Superintendent of Central Prison, District Prison, Nellore
to submit a report not only with regard to the soundness
of mind of the accused but also with regard to other
parameters which are laid down in the decision in Manoj
and others v. State of Madhya Pradesh4. Accordingly,
reports were submitted by the authorities concerned.
43. A perusal of the reports submitted by the
authorities would go to show father of the accused viz.
Shaik Yesdani Basha, aged 63 years, is running a own
tailoring shop in Nellore and his mother Smt.Shaik Rajiya,
aged 52 years, is a house wife. He has wife and a
4
(2023) 2 SCC 353
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& RT 1 of 2020daughter, aged 12 years. His elder sister Smt. Shaik
Gulzar is married and blessed with two children.
According to the report, parents and family members of
the accused are not involved in any violence. As regards
socio-economic back ground, there is one ancestral
residential building and one tailoring shop, which are in the
name of his father.
44. As regards education, the accused completed
Polytechnic Diploma course and a course in Architecture
(interior designing). He was pursuing 5 year B.L. course
and by the date of the awarding death penalty, he
completed 4th year of the course. He is a building
elevation designer, and he was maintaining an office under
the name and style ‘3D Architecture’ at Narthaki Centre,
Nellore town. He was doing the work of building designing
and building elevation, etc. and he was addicted to vices
and sustained loss in the business.
45. According to the report submitted by the
District Probation Officer, Nellore, the accused completed
B.Tech. and has no mental/psychological ailments, and
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neighbours stated that the accused was a friendly and
affectionate person. His parents are suffering from chronic
illness and presently, wife of the accused is living with her
parents and she is getting little financial support from her
parents-in-law.
46. The accused was also involved in three other
crimes where he is accused of causing death of old women
in order to commit theft in the house. In respect of the
said three cases, trials went on and the accused was
acquitted in all the three cases. Merely because cases
were registered as against the accused, it cannot be a
ground to award death punishment in the present case on
hand. On this aspect, it is pertinent to refer relevant
paragraphs in the decision in Manoj and others v. State of
Madhya Pradesh (4 supra). (paragraphs 234, 235, 236 and
237)
“Theories of punishment
234. The 262nd Report speaks extensively to the
penological justification of the death penalty. It finds
that there is inconclusive evidence that this form of
punishment has more of a deterrent effect, in
comparison to life imprisonment. Dismissing the
retributive theory of punishment on the ground that it
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suffers from lack of guidance on quantifying the
punishment that would be appropriate to impose, it
categorically states that:
“7.1.2. Capital punishment fails to achieve any
constitutionally valid penological goals.
7.1.3. focusing on death penalty as the ultimate
measure of justice to victims, the restorative and
rehabilitative aspects of justice are lost sight of. Reliance
on the death penalty diverts attention from other
problems ailing the criminal justice system such as poor
investigation, crime prevention and rights of victims of
crime.”
235. While the 262nd Report recommends abolition of
the death penalty on this ground, in addition to
sentencing having become Judge-centric or arbitrary, it
has not prompted parliamentary intervention. Whether
the death penalty deserves a relook [as recommended by
Kurian Joseph, J. (dissenting) in Chhannu Lal Verma
[Chhannu Lal Verma v. State of Chhattisgarh, (2019) 12
SCC 438 : (2019) 4 SCC (Cri) 402] ], in light of the
262nd Law Commission Report, evolving jurisprudence,
public discourse and international standards of human
rights, is outside the purview of this Court’s jurisdiction
given the Constitution Bench decision in Bachan Singh
[Bachan Singh v. State of Punjab, (1980) 2 SCC 684 :
1980 SCC (Cri) 580] , and a question best left for the
legislature to critically consider. In this backdrop, what
this Court can do, is try and bolster the existing
sentencing framework. This is possible only by giving
true meaning to the existing guidelines (without falling
into the trap of “categorising” crimes that automatically
warrant death penalty). To do so, this Court finds it
necessary to lay out certain practical guidelines
(elaborated below) that can facilitate consideration of
mitigating circumstances as recognised in Bachan Singh
[Bachan Singh v. State of Punjab, (1980) 2 SCC 684 :
1980 SCC (Cri) 580] , and consequently ensure uniform
application of this framework.
236. The 262nd Report recognised the paradigm shift,
in policy and discourse, towards a reformative and
rehabilitative response to crime, and the development of
jurisprudence such that adjudging a case to be “rarest
of rare” was not sufficient, and special emphasis had to
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be placed in considering whether the offender is
amenable to reform. Implicit in this shift is the
understanding that the criminal is not a product of only
their own decisions, but also a product of the State and
society’s failing, which is what entitles the accused to a
chance of reformation. Thus, making life imprisonment
the norm, and death penalty the exception. In Lehna v.
State of Haryana [Lehna v. State of Haryana, (2002) 3
SCC 76 : 2002 SCC (Cri) 526] while deciding whether
the facts in that case were appropriate for death penalty,
traced this shift in approach : (SCC pp. 83-84, para 14)
“14. … Section 302IPC prescribes death or life
imprisonment as the penalty for murder. While doing so,
the Code instructs the court as to its application. The
changes which the Code has undergone in the last three
decades clearly indicate that Parliament is taking note of
contemporary criminological thought and movement. It
is not difficult to discern that in the Code, there is a
definite swing towards life imprisonment. Death
sentence is ordinarily ruled out and can only be imposed
for “special reasons”, as provided in Section 354(3).
There is another provision in the Code which also uses
the significant expression “special reason”. It is Section
361. Section 360 of the 1973 Code re-enacts, in
substance, Section 562 of the Criminal Procedure Code,
1898 (in short “the old Code”). Section 361 which is a
new provision in the Code makes it mandatory for the
court to record “special reasons” for not applying the
provisions of Section 360. Section 361 thus casts a duty
upon the court to apply the provisions of Section 360
wherever it is possible to do so and to state “special
reasons” if it does not do so. In the context of Section
360, the “special reasons” contemplated by Section 361
must be such as to compel the court to hold that it is
impossible to reform and rehabilitate the offender after
examining the matter with due regard to the age,
character and antecedents of the offender and the
circumstances in which the offence was committed. This
is some indication by the legislature that reformation and
rehabilitation of offenders and not mere deterrence, are
now among the foremost objects of the administration of
criminal justice in our country. Section 361 and Section
354(3) have both entered the statute book at the same
time and they are part of the emerging picture of
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acceptance by the legislature of the new trends in
criminology. It would not, therefore, be wrong to assume
that the personality of the offender as revealed by his
age, character, antecedents and other circumstances and
the tractability of the offender to reform must necessarily
play the most prominent role in determining the sentence
to be awarded. Special reasons must have some relation
to these factors. Criminal justice deals with complex
human problems and diverse human beings. A Judge
has to balance the personality of the offender with the
circumstances, situations and the reactions and choose
the appropriate sentence to be imposed.”
(emphasis supplied)”
In view of the principle laid down in the aforesaid
judgment, with an advent of goal of reformation in the
recent past, the society must stride towards reformation
and rehabilitation.
47. In Sundar @ Sundarrajan v. State by Inspector of
Police,5 the Hon’ble Apex Court held thus: (paragraphs 63,
64 & 76).
“63. In Santa Singh v State of Punjab (1976) 4 SCC
190, a two judge Bench of this Court highlighted the
requirement of having a separate sentencing hearing
in view of Section 235(2) of the CrPC and noted that
the stage of sentencing was as important a stage in
the process of administering criminal justice as the
adjudication of guilt.
64. The judgment of the majority in the Constitution
Bench decision in Bachan Singh v State of Punjab
(1980) 2 SCC 684 reiterated the importance of a
sentencing hearing. The Court noted that:
5
2023 LiveLaw (SC) 217
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& RT 1 of 2020“151. Section 354(3) of the CrPC, 1973, marks a
significant shift in the legislative policy
underlying the Code of 1898, as in force
immediately before April 1, 1974, according to
which both the alternative sentences of death or
imprisonment for life provided for murder and for
certain other capital offences under the Penal
Code, were normal sentences. Now according to
this changed legislative policy which is patent on
the face of Section 354(3), the normal
punishment for murder and six other capital
offences under the Penal Code, is imprisonment
for life (or imprisonment for a term of years) and
death penalty is an exception.
[…]
152. In the context, we may also notice Section
235(2) of the Code of 1973, because it makes not
only explicit, what according to the decision in
Jagmohan’s case was implicit in the scheme of
the Code, but also bifurcates the trial by
providing for two hearings, one at the
preconviction stage and another at the pre-
sentence stage.
[…]
163. […] Now, Section 235(2) provides for a
bifurcated trial and specifically gives the accused
person a right of pre-sentence hearing, at which
stage, he can bring on record material or
evidence, which may not be strictly relevant to or
connected with the particular crime under
inquiry, but nevertheless, have, consistently with
the policy underlined in Section 354(3) a bearing
on the choice of sentence. 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, Penal Code, the Court should not confine its
consideration “principally” or merely to the
circumstances connected with particular crime,
but also give due consideration to the
circumstances of the criminal.”
(emphasis supplied).
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…
76. In Rajendra Pralhadrao Wasnik v State of
Maharashtra (2019) 12 SCC 460, a three judge bench
of this Court took note of the line of cases of this
Court which underline the importance of considering
the probability of reform and rehabilitation of the
convicted accused before sentencing him to death.
The court observed:
“43. At this stage, we must hark back to Bachan
Singh and differentiate between possibility,
probability and impossibility of reform and
rehabilitation. Bachan Singh requires us to
consider the probability of reform and
rehabilitation and not its possibility or its
impossibility. […]
45. The law laid down by various decisions of this
Court clearly and unequivocally mandates that
the probability (not possibility or improbability or
impossibility) that a convict can be reformed and
rehabilitated in society must be seriously and
earnestly considered by the courts before
awarding the death sentence. This is one of the
mandates of the “special reasons” requirement of
Section 354(3) CrPC and ought not to be taken
lightly since it involves snuffing out the life of a
person. To effectuate this mandate, it is the
obligation on the prosecution to prove to the
court, through evidence, that the probability is
that the convict cannot be reformed or
rehabilitated. This can be achieved by bringing on
record, inter alia, material about his conduct in
jail, his conduct outside jail if he has been on bail
for some time, medical evidence about his mental
make-up, contact with his family and so on.
Similarly, the convict can produce evidence on
these issues as well.
46. If an inquiry of this nature is to be conducted,
as is mandated by the decisions of this Court, it
is quite obvious that the period between the date
of conviction and the date of awarding sentence
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gather and lead evidence which could assist the
trial court in taking an informed decision on the
sentence. But, there is no hurry in this regard,
since in any case the convict will be in custody
for a fairly long time serving out at least a life
sentence.
47. Consideration of the reformation,
rehabilitation and reintegration of the convict into
society cannot be overemphasised. Until Bachan
Singh, the emphasis given by the courts was
primarily on the nature of the crime, its brutality
and severity. Bachan Singh placed the sentencing
process into perspective and introduced the
necessity of considering the reformation or
rehabilitation of the convict. Despite the view
expressed by the Constitution Bench, there have
been several instances, some of which have been
pointed out in Bariyar and in Sangeet v. State of
Haryana where there is a tendency to give
primacy to the crime and consider the criminal in
a somewhat secondary manner. As observed in
Sangeet “In the sentencing process, both the
crime and the criminal are equally important.”
Therefore, we should not forget that the criminal,
however ruthless he might be, is nevertheless a
human being and is entitled to a life of dignity
notwithstanding his crime. Therefore, it is for the
prosecution and the courts to determine whether
such a person, notwithstanding his crime, can be
reformed and rehabilitated. To obtain and
analyse this information is certainly not an easy
task but must nevertheless be undertaken. The
process of rehabilitation is also not a simple one
since it involves social reintegration of the convict
into society. Of course, notwithstanding any
information made available and its analysis by
experts coupled with the evidence on record,
there could be instances where the social
reintegration of the convict may not be possible.
If that should happen, the option of a long
duration of imprisonment is permissible.
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(emphasis supplied)”
The Hon’ble Apex Court observed that the process of
rehabilitation is also not a simple one since it involves
social reintegration of the convict into society. Of course,
notwithstanding any information made available and its
analysis by experts coupled with the evidence on record,
there could be instances where the social reintegration of
the convict may not be possible. If that should happen, the
option of a long duration of imprisonment is permissible.
48. Criminal Justice System is more punitive than
intended. The system is touted to be reformable and
rehabilitative. The objectives of the Indian Criminal
Justice System include penalizing, reforming and
rehabilitating the offender. Reformation is its final goal, as
the system asserts to be more rehabilitative than
retributive. Everyone of us are born innocent. Some
persons, because of their genetic composition, living
experiences and other circumstances, could result in
commission of the crimes. Social inequities and
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of crime.
49. The appellant is an Architectural Engineer.
According to the prosecution case, the appellant is known
to P.W.1. Having satisfied with the plan submitted by the
accused, P.W.1 engaged him to prepare plans for his
college. This Court is of the view that if the accused can be
rehabilitated by providing counseling services to cater to
the psychological needs, social, economic and personal
challenges. This Court is of the view that there is a chance
for the appellant to join the main stream of the society.
When such is the view taken by the Hon’ble Apex Court in
the recent past and having regard to mitigating
circumstances stated supra, this Court is of the view that
death sentence imposed on the accused is harsh in the
facts and circumstances of the present case.
50. In view of the aforesaid reasons, the death
sentence imposed on the accused is modified and the
accused is sentenced to undergo rigorous imprisonment
for 20 years without any reprieve or remission, and also to
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imprisonment for a period of three months, under each
count, for the offence punishable under Section 302 IPC
(under two counts).
Further, the sentence of imprisonment for life
concurrently, imposed by the learned Sessions Judge, for
the offences punishable under Sections 449 and 307 IPC,
is modified, and the accused is sentenced -to undergo
rigorous imprisonment for 10 years and to pay a fine of
Rs.1,000/- in default to suffer rigorous imprisonment for a
period of three months, for the offence punishable under
Section 307 IPC and – to undergo rigorous imprisonment
for 10 years and to pay a fine of Rs.1,000/- in default to
suffer rigorous imprisonment for a period of three months,
for the offence punishable under Section 449 IPC. The
sentence imposed by the learned Sessions Judge for the
offence punishable under Section 397 IPC is confirmed.
All the substantive sentences of imprisonment shall run
concurrently.
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51. With the above modification in sentences, the
Criminal Appeal is dismissed. Referred Trial is answered
accordingly.
————————————————
JUSTICE K.SREENIVASA REDDY
————————————————
JUSTICE T.MALLIKARJUNA RAO
27.09.2024
DRK
54
SRKJ & TMRJ
CRL.A.NO.353 of 2020
& RT 1 of 2020THE HON’BLE SRI JUSTICE K.SREENIVASA REDDY
AND
THE HON’BLE SRI JUSTICE T.MALLIKARJUNA RAOCOMMON JUDGMENT
IN
CRIMINAL APPEAL No.353 OF 2020 & R.T.NO.1 OF 2020
(per the Hon’ble Sri Justice K.Sreenivasa Reddy)27.09.2024
DRK