//
you're reading...
legal issues

the killing of two other policemen without premeditation and without any motive whatsoever was an act done out of panic reaction and in a state of frenzy and it was not one of the rarest of rare cases where death sentence could be awarded.

Reportable

English: The supreme court of india. Taken abo...

Image via Wikipedia

 

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 1436 of 2010
Absar Alam @ Afsar Alam …… Appellant

 

Versus

 

State of Bihar …… Respondent

 

 

J U D G M E N T
A. K. PATNAIK, J.

 
This is an appeal by way of special leave under Article

 

136 of the Constitution of India against the judgment and

 

order dated 16.07.2009 of the Patna High Court in Death

 

Reference No. 7 of 2008 with Criminal Appeal (DB) No.169

 

of 2008. On 18.01.2010, this Court issued notice in the

 

Special Leave Petition confined to the question of sentence

 

only and on 02.08.2010 after hearing learned counsel for

 

the parties, granted leave. Hence, the only question that we

 

have to decide in this appeal is whether the High Court was

 

right in confirming the death sentence of the appellant

 

imposed by the trial court.
2

 

 

2. For deciding this question, the relevant facts as have

 

been found by the trial court are that in the midnight

 

of 14/15.02.2007, the appellant killed his mother by

 

cutting her neck and severing her head and thereafter

 

fled from the house with the head of his mother leaving

 

behind her body. The trial court, after convicting the

 

appellant under Sections 302 and 201 of the Indian

 

Penal Code (for short `IPC’), held that the appellant

 

committed the murder of his mother in an extremely

 

brutal, grotesque, diabolical and revolting manner and

 

hence it is one of those rarest of the rare cases calling

 

for a death sentence on the appellant. The High Court,

 

while upholding the conviction, confirmed the death

 

sentence relying on the decision of this Court in

 

Machhi Singh and others v. State of Punjab [(1983) 3

 

SCC 470]. In the aforesaid case of Machhi Singh, this

 

Court has inter alia held that the manner of

 

commission of murder and the personality of the

 

victim of murder have to be taken into consideration

 

while making the choice of the sentence to be imposed

 

for the offence under Section 302, IPC : life
3

 
imprisonment or death sentence. The High Court has

 

taken a view that considering the abhorrent, dastardly

 

and diabolical nature of the crime committed by the

 

appellant on none other than his mother, who had

 

given birth to him, the penalty of death has been

 

rightly awarded by the trial court.

 
3. At the hearing of this appeal, learned counsel for the

 

appellant, relying on the decision of this Court in

 

Swamy Shraddananda (2) alias Murali Manohar Mishra

 

v. State of Karnataka [(2008) 13 SCC 767], submitted

 

that even if it is a case of a son beheading his mother,

 

this is not one of the rarest of rare cases in which the

 

death penalty should have been imposed because the

 

offence had been committed by the appellant in a fit of

 

passion and not after pre-meditation.

 
4. Learned counsel for the State, on the other hand,

 

submitted that considering the law laid down by this

 

Court in Prajeet Kumar Singh v. State of Bihar [(2008) 4

 

SCC 434], Surja Ram v. State of Rajasthan [(1996) 6

 

SCC 271] and Atbir v. Government of NCT of Delhi
4

 
[(2010) 9 SCC 1], the imposition of death sentence on

 

the appellant for the cruel act of beheading his mother

 

was proper.

 
5. We find on reading the FIR lodged by the brother of the

 

appellant on the morning of 15.02.2007 at 09:45

 

hours marked as Ext.2 that the appellant’s wife

 

Sakerun Nisha had run away to her maternal house

 

three or four days before the incident and the

 

appellant had been accusing his mother to have been

 

the cause of his wife running away from this house

 

and out of anger and excitement the appellant severed

 

the neck of his mother and fled with the head. The

 

appellant was an illiterate rustic and was a cultivator

 

residing in a village with virtually no control over his

 

emotions and has over-reacted impulsively to the

 

situation and has severed the neck of his mother. On

 

these facts, the appellant is no doubt guilty of the

 

offence under Section 302, IPC, and has to suffer the

 

punishment of imprisonment for life normally awarded

 

for the offence, but should not be condemned to death.

 

We may cite a few authorities in support of this view.
5

 

 

 

6. In Lehna v. State of Haryana [(2002) 3 SCC 76], the

 

facts were that there was a quarrel between the

 

accused and other members of his family, namely, his

 

father, his brother and sister-in-law, over a piece of

 

land and in the assaults that followed the quarrel, the

 

accused killed his mother, his brother and sister-in-

 

law. While upholding the conviction of the accused

 

under Section 302, IPC, this Court held that the

 

mental condition of the accused, which led to the

 

assault, cannot be lost sight of and while such mental

 

condition of the accused may not be relevant to judge

 

culpability, it is certainly a factor while considering the

 

question of sentence. This Court further held that the

 

factual scenario gave impressions of impulsive act of

 

the accused and not of planned assaults and in this

 

peculiar background, death sentence would not be

 

proper.

 
7. In Gyasuddin Khan alias Md. Gyasuddin Khan v. State

 

of Bihar [(2003) 12 SCC 516], the facts were that in the

 

morning hours of 09.04.1996, in the precincts of a
6

 
police camp stationed near a village in Bihar, a

 

policeman deployed in the police picket to contain the

 

terrorist activities, unleashed terror by indulging in a

 

firing spree, killing three of his colleagues

 

instantaneously and this Court, relying on Shamshul

 

Kanwar v. State of U.P. [(1995) 4 SCC 430], Lehna v.

 

State of Haryana (supra) and Om Prakash v. State of

 

Haryana [(1999) 3 SCC 19], held that the mental

 

condition or state of mind of the accused is one of the

 

factors that can be taken into account in considering

 

the question of sentence and in the facts of the case,

 

the killing of two other policemen without

 

premeditation and without any motive whatsoever was

 

an act done out of panic reaction and in a state of

 

frenzy and it was not one of the rarest of rare cases

 

where death sentence could be awarded.

 
8. For the aforesaid reasons, we convert the sentence of

 

death to one of life imprisonment for the offence under

 

Section 302, IPC, committed by the appellant and

 

allow the appeal in part.
7

 
………………………..J.

(A. K. Patnaik)

 
………………………..J.

(Swatanter Kumar)

New Delhi,

February 07, 2012.

 

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 2,883,998 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,905 other followers

Follow advocatemmmohan on WordPress.com
%d bloggers like this: