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calls for a death sentence. = Regard being had to the totality of the circumstances, it cannot be said that imprisonment for life is inadequate and the circumstances are so grave that it calls for a death sentence. Consequently, the appeal filed by the accused appellants and the appeals filed by the State for enhancement of penalty and reversal of the judgment of acquittal rendered in favour of the accused persons are dismissed.

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Udaipur/Rajasthan/India City Palace

Udaipur/Rajasthan/India City Palace (Photo credit: Wikipedia)

 
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1108 OF 2006
Kanhaiya Lal & Ors. ………..Appellants
Versus
State of Rajasthan ………Respondent
WITH
CRIMINAL APPEAL NO. 1109 OF 2006
State of Rajasthan ………Appellant
Versus
Mangi Lal ………Respondent
WITH
CRIMINAL APPEAL NO. 1110 OF 2006
State of Rajasthan ………Appellant
Versus
Mohan Lal and others ………
Respondents
WITH
CRIMINAL APPEAL NO. 1111 OF 2006
State of Rajasthan ………Appellant
Versus
Babu Lal ………Respondent
WITHPage 2
CRIMINAL APPEAL NO. 1112 OF 2006
State of Rajasthan ………Appellant
Versus
Revdi Lal and others ………
Respondents
J U D G M E N T
Dipak Misra, J.
The case of the prosecution depicts a macabre chain
of events that occurred in the intervening night of 28th and
29th June, 2001 which eventually led to the massacre of
five persons, namely, Purshottam, Ram Kumar Dhaka,
Kalu Lal Mali and Lokendra Sharma, all residents of village
Railgaon, and Heera Lal Meghwal, resident of Rampuria,
Kota. The extermination of five lives had its genesis in an
incident that had occurred sometime prior to the date of
occurrence where Kishan Chand, son of Ram Narayan,
Sarpanch of the village, was murdered and the father
nurtured deep rooted suspicion that the deceased persons
2Page 3
had not only masterminded a well thought out plan but
also executed the same and the seeds of the unquenched
anger gradually got inflamed and took the shape of
revenge ultimately resulting in the extinction of the lifespark of five persons. From the uncurtaining of the
gruesome events, it is manifest that on the date of the
occurrence, the night slowly and intensely developed into
real darkness of revenge that reigned with avenge.
Revenge, the pleasure of morbid minds, knows no bounds
and the accused persons, clinging to the fire of revenge,
possibly thinking it to be sweetest thing to relish, marched
ahead on the escalator of bitterness and the ultimate
eventuate was five deaths, trial of 29 persons and
conviction of 17 accused out of which six accused persons,
namely, Yuvraj, Hemraj, Hansraj, Radhey Shyam, Modu
Nath and Mohan were imposed death sentence and the
rest 11 accused, namely, Lal Chand, Dhanpal, Kanyaiyalal,
Naval, Revdi Lal, Ram Lal, Babu Lal, Mangi Lal,
Ghanshyam, Radhey Shyam s/0 Prahalad, and Radhey
Shyam s/o Shankar Lal, were sentenced with rigorous
imprisonment of life by the learned Additional Sessions
3Page 4
Judge, Fast Track, in Sessions Case No. 27 of 2002. Be it
noted, the rest of the accused persons were acquitted of
the charges.
2. As is demonstrable, all the accused persons were
sent up for trial for offences punishable under
Sections 147, 148, 302, 342, 427, 435 and 460 read
with 149 IPC. Filtering the unnecessary details, the
facts which are necessitous to be stated for disposal
of these appeals are that on 28.6.2001, about 5.00
p.m., Purshottam, brother of the informant, Ram
Kumar Dhakad, Kalu Lal Mali, Lokendra Sharma, and
Heera Lal Meghwal had come on two motorcycles to
the house of Purshottam and no sooner had they
arrived in the village than Ram Narayan, Mohan Lal,
Yuvraj, Hansraj, Lalchand, Dhanpal, Kanhaiya Lal,
Naval, Revdi Lal, Hemraj, Radhey Shyam s/o Gopal,
Bhojraj, Ramesh Chand, Ram Singh, Babu Lal Meena,
Mangilal, Ghanshyam, Radhey Shyam s/o Prahalad,
Modulal, Radhey Shyam s/o Shankar Lal, Jagdish,
Shambhu Dayal, Amar Lal and Sita Ram along with
15-20 others came being armed with Gandasis,
4Page 5
Swords, Sabals and sticks. They surrounded the
house of Purshottam who was in the house along
with children. The accused persons scaled the house
of Purshottam and started pelting stones as a
consequence of which the roof sheets and the tiles of
the house of Purshottam were broken. Purshottam
and his four other companions jumped the common
wall situate in between the houses of Purshottam and
Radhey Shyam, brother of Purshottam, and stayed in
one room of the informant. As the evening
progressed, the evil designs became more animated
and the deadly desires sprang into action and at
midnight, the accused persons took the informant,
his wife Badribai, mother Panabai and Nirmala Bai,
wife of Purshottam, and made them sit in the
thatched roof of one Prabhulal Meena. Almost after
half an hour, the relatives of Ram Narayan Gujjar,
Sarpanch of the said village, came in a jeep along
with 15-20 persons in front of the house of the
informant, broke open the door, entered the house
and, in the house itself, inflicted blows with Swords,
5Page 6
Gandasis and sticks, as a result of which Kalu Lal
Mali, Lokendra Sharma and Heera Lal Meghwal
breathed their last inside the house. The accused
dragged Purshottam and Ram Kumar outside and
assaulted them with Gandasis and swords on their
heads, faces, hands and feet and, eventually, those
two succumbed to their injuries. They took both the
motorcycles in the passage and burnt the same and,
after the inhumane and barbaric act, left the scene.
3. The FIR, as is perceptible from the material brought
on record, was not lodged immediately but was
lodged at 6.45 a.m. on 29.6.2001. During
investigation, the investigating agency prepared the
site plan, got the autopsy done in respect of the dead
bodies, seized the blood stained clothes, recorded
the statements of the witnesses and, on the basis of
the information furnished by the accused persons,
while they were in custody, recovered the weapons
used in the commission of the crime and, after
following the other formalities of investigation,
submitted the charge-sheets on different dates
6Page 7
before the Judicial Magistrate, Digod, who, in turn,
committed the matter to the Court of Session. After
committal of the case to the Court of Session, the
learned trial Judge, on 3.4.2002, framed charges
under Sections 147, 427, 435, 148, 302, 460 and 342
IPC and in respect of 435/149 IPC against accused
numbers 1, 5-9, 11, 12, 16, 21, 23, 24 and 26. As far
as the other three sets of accused persons are
concerned, almost similar charges were framed on
21.09.2002. The accused persons denied their
involvement in the crime, pleaded innocence and
claimed to be tried.
4. In order to substantiate the offences against the
accused persons, the prosecution examined 45
witnesses, got number of documents exhibited and
various material objects marked. The accused
persons in their defence examined 15 witnesses.
5. The learned trial Judge formulated four questions,
namely, whether the accused in furtherance of the
common object caused the death of the deceased
persons and assaulted the other persons; whether all
7Page 8
of them by throwing stones on the house of
Purshottam and burning the Motorcycles in
possession of the deceased persons committed
mischief; whether the accused persons with common
object to commit murder of the deceased persons
committed lurking trespass into the house of Radhey
Shyam in the night; and whether the offences were
committed by all the accused persons. The learned
trial Judge addressed the questions one to three, as
formulated by him, in a composite manner and,
appreciating the evidence on record, came to hold
that the accused Mohan Lal, Yuvraj, Hansraj, Hemraj,
Radhey Shyam s/o Gopal and Modu Nath were guilty
of the offences under Sections 148, 427, 342, 460
and 302 IPC and, accordingly, convicted them to
undergo three years rigorous imprisonment and a
fine of Rs.500/-, two years rigorous imprisonment and
a fine of Rs.500/-, one year rigorous imprisonment
and a fine of Rs.500/-, ten years rigorous
imprisonment and a fine of Rs.2000/- and death
sentence respectively with further stipulation of
8Page 9
consequences in default of payment of fine
respectively. Accused Lal Chand, Revdi Lal,
Ghanshyam and Radhey Shyam, s/o Prahlad, were
convicted for offences punishable under Sections
148, 427, 342, 460 and 302/149 IPC and sentenced
to suffer rigorous imprisonment for three years and a
fine of Rs.500/-, two years rigorous imprisonment and
a fine of Rs.500/-, one year rigorous imprisonment
and a fine of Rs.500/-, ten years rigorous
imprisonment and a fine of Rs.2000/- and life
imprisonment and a fine of Rs.2000/- respectively
with the consequences enumerated in case of default
of payment of fine respectively. Accused Dhanpal,
Kanhaiya Lal, Naval, Ram Lal, Babu Lal, Mangi Lal,
Radheysham and four others were found guilty of the
same offences and imposed various sentences with a
default clause. The maximum sentence was
imprisonment for life and a fine of Rs.2000/- under
Section 302/149 IPC. The rest of the accused stood
acquitted.
9Page 10
6. At this juncture, it is worth mentioning that Ram
Narayan, Sarpanch of the village Railgaon, who was
sent up for trial, expired during the pendency of the
trial and, accordingly, the trial was closed against
him.
7. The accused appellants preferred seven criminal
appeals, namely, Criminal Appeal Nos. 464 of 2003,
421 of 2003, 621 of 2003, 622 of 2003, 670 of 2003,
474 of 2003 and 520 of 2003. The State represented
its case in Death Reference No. 1 of 2003, but did not
question the defensibility of the acquittal recorded
against 11 other accused persons. The accusedappellants before the High Court assailed the
conviction in respect of all the offences and the
sentence and the State defended the judgment
passed by the court below.
8. The Division Bench of the High Court dealt with all
the appeals and disposed all of them by a singular
judgment dated 2.6.2005. The High Court,
appreciating the evidence, scrutinizing the material
on record and bestowing anxious consideration while
10Page 11
dealing with the submissions canvassed by the
learned counsel for the parties, partly allowed the
appeals preferred by Mohan Lal and others, who were
convicted under Sections 302 and 460 IPC and
sentenced to death, acquitted Mohan Lal of the
charges framed against him under Sections 302 and
460 IPC and as far as the other accused persons of
the same category are concerned, the sentence of
death was converted to life sentence and,
resultantly, the death reference was declined. The
accused persons, namely, Lal Chand, Revdi,
Ghanshyam, Radhey Shyam, Mangilal and Babulal
were given benefit of doubt and acquitted of the
charges framed against them under Sections 302 and
460 IPC. As far as the other accused persons,
namely, Kanhaiyalal, Naval, Ram Lal and Radhey
Shyam, s/o Shankar Lal, are concerned, the
conviction and sentence imposed by the trial court
was maintained.
9. The High Court, on x-ray of the evidence, came to
hold that all the deaths were homicidal; that
11Page 12
imposition of death sentence by the learned trial
Judge was not justified; that there was no
unexplained delay in lodging the FIR; that the
provisions enshrined under Section 149 of IPC were
clearly attracted to the case at hand; that the plea of
the defence that the prosecution had chosen only the
relatives of the deceased persons who are highly
interested witnesses and, hence, their version did not
deserve acceptance was without any merit; that the
whole crime was committed in a planned design; that
the proponement that no independent witnesses had
been examined was bereft of any substratum
because the witnesses could not have dared to
depose against the Sarpanch who, on mere
suspicion, had set himself on such a massacre and
self-preservation being the basic instinct in such a
situation had ruled supreme; that Dhanpal s/o Ram
Pratap, accused no. 5 before the High Court, having
expired, appeal at his instance abated; that the
involvement of Lalchand, Revdi Lal, Ghanshyam,
Radheyshyam s/o Prahlad, Mangi Lal, Babu Lal, and
12Page 13
Mohan was doubtful and, accordingly, they deserved
to be acquitted; that the other accused-appellants
were involved in the commission of crime and,
therefore, the conviction under Section 302 could not
be interfered with. As far as the death reference is
concerned, it opined that it is not a rarest of rare
case warranting imposition of death sentence and,
accordingly, modified it to rigorous life imprisonment.
Recording such conclusions, the High Court disposed
of the bunch of appeals.
10. We have heard Mr. Sushil Kumar Jain, learned
counsel for the accused-appellants in Criminal Appeal
No. 1108 of 2006, and Mr. Imtiaz Ahmed, learned
counsel for the State in all the appeals.
11. The first submission of Mr. Jain is that the prosecution
version deserves to be thrown overboard inasmuch
there is delay in lodging of the FIR and the
explanation offered for such delay is unacceptable,
regard being had to the duration of the occurrence,
proximity of the police station and the implication of
number of accused persons which is indicative of
13Page 14
embellishment. Learned counsel would further
contend that innocent persons were dragged into
trial and suffered immensely and hence, such a story
should not be given credence to.
12. It is settled in law that mere delay in lodging the First
Information Report cannot be regarded by itself as
fatal to the case of the prosecution. However, it is
obligatory on the part of the court to take notice of
the delay and examine, in the backdrop of the case,
whether any acceptable explanation has been
offered, by the prosecution and if such an
explanation has been offered whether the same
deserves acceptance being found to be satisfactory.
In this regard, we may refer with profit a passage
from State of H.P. v. Gian Chand1
, wherein a
three-Judge Bench of this Court has expressed thus: –
“Delay in lodging the FIR cannot be used
as a ritualistic formula for doubting the
prosecution case and discarding the same
solely on the ground of delay in lodging the
first information report. Delay has the
effect of putting the court on its guard to
search if any explanation has been offered
for the delay, and if offered, whether it is
1
(2001) 6 SCC 71
14Page 15
satisfactory or not. If the prosecution fails
to satisfactorily explain the delay and
there is a possibility of embellishment in
the prosecution version on account of such
delay, the delay would be fatal to the
prosecution. However, if the delay is
explained to the satisfaction of the court,
the delay cannot by itself be a ground for
disbelieving and discarding the entire
prosecution case.”
13. In Ramdas and others v. State of Maharashtra2
,
this Court has observed that mere delay in lodging
the first information report is not necessarily fatal to
the case of the prosecution. However, the fact that
the report was lodged belatedly is a relevant fact of
which the court must take notice. This fact has to be
considered in the light of other facts and
circumstances of the case, and, in a given case, the
court may be satisfied that the delay in lodging the
report has been sufficiently explained. In the light of
the totality of the evidence, the court has to consider
whether the delay in lodging the report adversely
affects the case of the prosecution. That is a matter
of appreciation of evidence. There may be cases
where there is direct evidence to explain the delay.
2
(2007) 2 SCC 170
15Page 16
Even in the absence of direct explanation, there may
be circumstances appearing on record which provide
a reasonable explanation for the delay. There are
cases where much time is consumed in taking the
injured to the hospital for medical aid and, therefore,
the witnesses find no time to lodge the report
promptly. There may also be cases where on account
of fear and threats, witnesses may avoid going to the
police station immediately. The time of occurrence,
the distance to the police station, mode of
conveyance available, are all factors which have a
bearing on the question of delay in lodging of the
report. It is also possible to conceive of cases where
the victim and the members of his or her family
belong to such a strata of society that they may not
even be aware of their right to report the matter to
the police and seek legal action, nor was any such
advice available to them.
14. In Meharaj Singh v. State of U.P.3
, a two-Judge
Bench of this Court has observed that FIR in a
3
(1994) 5 SCC 188
16Page 17
criminal case and particularly in a murder case is a
vital and valuable piece of evidence for the purpose
of appreciating the evidence led at the trial and the
object of insisting upon prompt lodging of the FIR is
to obtain the earliest information regarding the
circumstance in which the crime was committed,
including the names of the actual culprits and the
parts played by them, the weapons, if any, used, as
also the names of the eyewitnesses, if any, for delay
in lodgment of the FIR results in embellishment which
is a creation of afterthought. Emphasis was laid on
the fact that on account of delay, the FIR not only
gets bereft of the advantage of spontaneity but also
danger of introduction of a coloured version or
exaggerated story.
15. Thus, whether the delay creates a dent in the
prosecution story and ushers in suspicion has to be
gathered by scrutinizing the explanation offered for
the delay in the light of the totality of the facts and
circumstances. Greater degree of care and caution is
required on the part of the court to appreciate the
17Page 18
evidence to satisfy itself relating to the explanation
of the factum of delay. In Kilakkatha Parambath
Sasi and others v. State of Kerala4
, it has been
observed that when an FIR has been lodged
belatedly, an inference can rightly follow that the
prosecution story may not be true but equally on the
other side, if it is found that there is no delay in the
recording of the FIR, it does not mean that the
prosecution story stands immeasurably
strengthened.
16. The present factual scenario is to be tested on the
touchstone of the aforesaid principles. On a careful
perusal of the material on record, it is clear as crystal
that the occurrence had taken place at night. True it
is, the house of Purshottam was surrounded
sometime at 5.00 p.m. on 28.6.2001, but the real
crime, the assault and the murder took place after
midnight. The ghastly and gruesome crime must
have sent a shiver in the spine and shattered the
brains and bones of the witnesses to the crime and
4
AIR 2011 SC 1064
18Page 19
shock, panic and inequilibrium would have reigned
simultaneously to leave them totally confounded. No
one could have dared to move an inch towards the
police station, for man’s basic instinct prompts him to
survive first and then think about any other action.
The informant, brother of the deceased, has clearly
deposed that he and others were in a terrible state of
trauma to proceed to the police station to lodge an
FIR. After the day broke, they mustered courage and
proceeded towards the police station and lodged the
FIR at 6.45 a.m. on 29.6.2001. The learned counsel
for the appellants would contend that they could
have lodged the FIR when the house was seized and
not after the whole episode was over. We are not
impressed by the said submission and we think that
the explanation offered, by no stretch of imagination,
can be regarded implausible. As noticed earlier, a
delayed FIR can usher in craftsmanship, manipulation
and embellishment and may make the prosecution
story vulnerable, but when the delay has been
19Page 20
adequately explained, the same deserves
acceptation and, accordingly, we do so.
17. The next limb of argument of Mr. Jain, learned
counsel for the appellants, is that all the alleged eye
witnesses are closely related to the deceased
Purshottam and the prosecution has chosen not to
examine any independent witness despite number of
houses situate in the close vicinity of the house of
Purshottam and that itself creates a dent in the
version of the prosecution. When relatives, who are
alleged to be interested witnesses, are cited by the
prosecution, it is the obligation of the court to
scrutinize their evidence with care, caution and
circumspection. In the case at hand, the entire
occurrence took place in and around the house of
Purshottam. Five people had been done to death. In
such a circumstance, it is totally unexpected that
other villagers would come forward to give their
statements and depose in the court. It is to be borne
in mind that Ram Narayan, Sarpanch of the village,
solely on the basis of suspicion, had seen to it that
20Page 21
five persons meet their end. Such a situation
compels one not to get oneself involved and common
sense give consent to such an attitude. Thus, no
exception can be taken to the fact that no
independent witness was examined. As far as the
relatives are concerned, Radhey Shyam, PW-1, is the
brother of the deceased, Ram Lal, PW-2, is the
brother of Radhey Shyam, Panna Bai, PW-3, is the
mother of Purshottam and Nirmala Bai, PW-5, is his
wife, and Anita, PW-5, Badribai, PW-8, Manisha, PW-9
and Kaushalya, PW-10, are also close relatives and
these witnesses have been cited as eye witnesses.
18. In Hari Obula Reddy and others v. The State of
Andhra Pradesh5
, a three-Judge Bench has opined
that it cannot be laid down as an invariable rule that
interested evidence can never form the basis of
conviction unless corroborated to a material extent in
material particulars by independent evidence. All
that is necessary is that the evidence of the
interested witnesses should be subjected to careful
5
(1981) 3 SCC 675
21Page 22
scrutiny and accepted with caution. If on such
scrutiny, the interested testimony is found to be
intrinsically reliable or inherently probable, it may, by
itself, be sufficient, in the circumstances of the
particular case, to base a conviction thereon.
19. In Kartik Malhar v. State of Bihar6
, this Court has
stated that a close relative who is a natural witness
cannot be regarded as an interested witness, for the
term “interested” postulates that the witness must
have some interest in having the accused, somehow
or the other, convicted for some animus or for some
other reason.
20. In the case at hand, the witnesses have lost their
father, husband and a relative. There is no earthly
reason to categorise them as interested witnesses
who would nurture an animus to see that the accused
persons are convicted, though they are not involved
in the crime. On the contrary, they would like that
the real culprits are prosecuted and convicted. That
is the normal phenomena of human nature and that
6
(1996) 1 SCC 614
22Page 23
is the expected human conduct and we do not
perceive that these witnesses harboured any ill
motive against the accused persons, but have
deposed as witnesses to the brutal incident. We may
proceed to add, as stated earlier, that this court shall
be careful and cautious while scanning their
testimony and we proceed to do so.
21. Radhey Shyam, the informant, has deposed with
regard to the threat, climbing of some of the accused
on the roof, surrounding of the house, pelting of
stones, carrying of lethal weapons like swords,
gandhasis, sabals and sticks, the assault inside the
house, dragging of the two deceased persons and the
ultimate death of the deceased. The plea that he
could not have witnessed the incident as it was night
and he was inside a thatched house (chhappar), has
been disbelieved by the learned trial Judge as well as
by the High Court. Mr. Jain, learned counsel for the
appellants, made a fragile attempt to highlight that
he could not have seen the assault, but on a scrutiny
of the evidence, it is manifest that there was not
23Page 24
complete darkness, as an electric bulb was burning
at that time and he had the occasion to see the
incident. Similar is the evidence of the other
prosecution witnesses, which has been analysed with
great anxiety by the High Court. On a careful perusal
of the same, we do not find any reason to differ with
the said evaluation solely on the ground that they are
related to the deceased persons or that they could
not have seen the occurrence. In a case of this
nature, it is the relatives who would come forward to
depose against the real culprits and would not like to
falsely implicate others. They have witnessed the
brutish crime committed and there is nothing on
record to discard their testimony as untrustworthy.
We find that their evidence is reliable and credible
and it would not be inapposite not to act upon the
same. Nothing has been elicited in the crossexamination to record a finding that the evidence is
improbable or suspicious and deserves to be
rejected. They have no motive to falsely implicate
the accused and, that apart, their testimony have
24Page 25
withstood the rigorous cross-examination in material
particulars and received corroboration from the
evidence of the doctor. That apart, the weapons
seized lends credence to the prosecution story.
Quite apart from the above, it is almost well nigh
impossible to perceive that they have any animosity
for some reason to see that the accused persons are
convicted. Their family members have been done to
death in ghastly manner, and in these circumstances,
it cannot be thought of that they would leave the real
culprits and implicate the accused persons.
22. It is next contended by Mr. Jain that the witnesses
have not specifically stated about the exact role
played by each of the accused persons inasmuch as
they have not mentioned who assaulted on which
part of the body and with what weapon. On a perusal
of the evidence, it transpires that the witnesses have
mentioned about the weapons used, the assault
made and the parts of the body where injuries were
inflicted. True it is, there are some discrepancies but
they are absolutely minor. That apart, they had
25Page 26
formed an unlawful assembly with a common object
to put an end to the lives of the deceased persons.
Their common object is writ large because they had
the knowledge and they shared the common object
from the beginning to the end. Applying the
principles laid down in Masalti and others v. The
State of Uttar Pradesh7
, Lalji and others v.
State of U.P.8
and Ramachandran and others v.
State of Kerala9
, we conclude that all the accused
persons were a part of the unlawful assembly with
the knowledge of the common object and,
accordingly, we unhesitatingly repel the contention of
the learned counsel for the appellants.
23. Presently, we shall advert to the appeals wherein the
High Court has acquitted the accused persons. It is
apt to mention here that the State had not preferred
any appeal before the High Court assailing the
judgment of acquittal by the learned trial Judge. As
is seen, the High Court has acquitted seven accused,
namely, Mohan, Lal Chand, Revdilal, Babulal,
7
AIR 1965 SC 202
8
(1989) 1 SCC 437
9
(2011) 9 SCC 257
26Page 27
Mangilal, Ghanshyam and Radhey Shyam, in various
criminal appeals. Before we advert to the
correctness of the view taken by the High Court, we
would like to state the role of the court while dealing
with a judgment of acquittal.
24. In Jadunath Singh and others v. State of U.P.10
,
a three-Judge Bench, while dealing with an appeal
against acquittal, has held thus: –
“22. This Court has consistently taken the
view that an appeal against acquittal the
High Court has full power to review at
large all the evidence and to reach the
conclusion that upon that evidence the
order of acquittal should be reversed. This
power of the appellate court in an appeal
against acquittal was formulated by the
Judicial Committee of the Privy Council in
Sheo Swarup v. King Emperor, 61 Ind App
398 = (AIR 1934 PC 227 (2)) and Nur
Mohammad v. Emperor, AIR 1945 PC 151.
These two decisions have been
consistently referred to in judgments of
this Court as laying down the true scope of
the power of an appellate court in hearing
criminal appeals: see Surajpal Singh v.
State, 1952 SCR 193 = (AIR 1952 SC 52)
and Sanwat Singh v. State of Rajasthan,
(1961) 3 SCR 120 = (AIR 1961 SC 715).”
10 AIR 1972 SC 116
27Page 28
25. In Sohrab and another v. The State of Madhya
Pradesh11
, this Court opined that under the Code of
Criminal Procedure, the High Court has full power to
review at large the evidence upon which the order of
acquittal is founded and to reach the conclusion that
on proper appreciation of the evidence, the order of
acquittal should be reversed. No limitation should be
placed upon that power unless it is expressly stated
in the Code. After so stating, the two-Judge Bench
expressed thus: –
“But in exercising the power conferred by
the Code and before reaching its
conclusions upon fact, the High Court,
should and will always give proper weight
and consideration to such matters as (1)
the views of the trial Judge as to the
credibility of the witnesses; (2) the
presumption of innocence in favour of the
accused, a presumption certainly not
weakened by the fact that he has been
acquitted at his trial; (3) the right of the
accused to the benefit of any doubt; and
(4) the slowness of an appellate Court in
disturbing a finding of fact arrived at by a
Judge who had the advantage of seeing
the witnesses.”
26. In State of M.P. v. Bacchudas alias Balram and
others12, after referring to Bhagwan Singh v.
11 AIR 1972 SC 2020
12 (2007) 9 SCC 135
28Page 29
State of M.P.13 and other pronouncements, it has
been stated that the principle to be followed by the
appellate court considering the appeal against the
judgment of acquittal is to interfere only when there
are compelling and substantial reasons for doing so.
If the impugned judgment is clearly unreasonable
and relevant and convincing materials have been
unjustifiably eliminated in the process, it is a
compelling reason for interference.
27. In State of Rajasthan through Secretary, Home
Department v. Abdul Mannan14, this Court has
stated that when an accused is acquitted of a
criminal charge, a right vests in him to be a free
citizen and this Court is very cautious in taking away
that right. The presumption of innocence of the
accused is further strengthened by the fact of
acquittal of the accused under our criminal
jurisprudence. The courts have held that if two views
are possible on the evidence adduced in the case,
then the one favourable to the accused, may be
13 (2003) 3 SCC 21
14 (2011) 8 SCC 65
29Page 30
adopted by the court. However, this principle must
be applied keeping in view the facts and
circumstances of the case and the thumb rule is
whether the prosecution has proved its case beyond
reasonable doubt. If the prosecution has succeeded
in discharging its onus, and the error in appreciation
of the evidence is apparent on the face of the record,
then the court can interfere in the judgment of
acquittal to ensure that the ends of justice are met.
This is the linchpin around which the administration
of criminal justice revolves.
28. In State of Rajasthan v. Shera Ram alias Vishnu
Dutta15, after survey of the earlier pronouncements,
it has been observed that there is a very thin but a
fine distinction between an appeal against conviction
on the one hand and acquittal on the other. The
preponderance of judicial opinion of this Court is that
there is no substantial difference between an appeal
against conviction and an appeal against acquittal
except that while dealing with an appeal against
15 (2012) 1 SCC 602
30Page 31
acquittal, the Court keeps in view the position that
the presumption of innocence in favour of the
accused has been fortified by his acquittal and if the
view adopted by the High Court is a reasonable one
and the conclusion reached by it had its grounds well
set out on the materials on record, the acquittal may
not be interfered with. Thus, this fine distinction has
to be kept in mind by the Court while exercising its
appellate jurisdiction. The golden rule is that the
Court is obliged and it will not abjure its duty to
prevent miscarriage of justice where interference is
imperative and the ends of justice so require and it is
essential to appease the judicial conscience.
29. Keeping in view the aforesaid principles, we proceed
to analyse the reasons ascribed by the High Court
while recording the acquittal. In the case of Lal
Chand @ Ram Niwas, the High Court has opined that
though he was named along with other persons who
constituted a group of 25-26 persons and had
surrounded the house of Purshottam, yet none of the
witnesses had mentioned that he had gone on the
31Page 32
roof of the house or damaged the roof and, therefore,
his participation in the crime appears to be doubtful.
While addressing the conviction relating to Revdi Lal,
the High Court has noticed that the only evidence
against him is that he had gone to the house of
Purshottam and thrown stones, but no other witnesse
has named him barring Ramlal, PW-2. The High
Court has found that in all possibility, there was
exaggeration or embellishment and, accordingly,
given him benefit of doubt. Dwelling upon the
conviction of Ghanshyam, the Division Bench has
observed that the allegations against him are
omnibus in nature and do not inspire confidence and,
accordingly extended benefit of doubt. On similar
analysis, Radhey Shyam s/o Prahlad, Mangi Lal and
Babu Lal S/o Dev Lal have been extended the benefit
of doubt. As far as Mohan Lal is concerned, the High
Court perceived that there are material
contradictions in the evidence of the witnesses
pertaining to the involvement of Mohan Lal and,
hence, felt that it was not safe to convict him and,
32Page 33
accordingly, on proper scrutiny of the evidence, gave
him the benefit of doubt. Applying the principles laid
down by this Court in the aforesaid authorities, it is
very difficult to hold that there are ‘substantial and
compelling reasons’, ‘good and sufficient grounds’,
‘very strong circumstances’, ‘distorted conclusions’
or ‘glaring mistakes’, and the prosecution has
discharged the onus and, therefore, we are of the
considered opinion that the view expressed by the
High Court does not suffer from any such infirmity.
We are inclined to think that the approach of the
High Court cannot be said to be totally implausible.
It has taken note of the involvement of number of
persons and, after filtering the grain from the chaff
and on due consideration of the material on record,
has extended the benefit of doubt to the accused
persons who have been acquitted. Thus, we are not
disposed to dislodge the conclusions arrived at by
the High Court in recording the acquittal.
30. The next issue that emerges for consideration is
whether the High Court has fallen into error by
33Page 34
commuting the death sentence to that of life
imprisonment. The High Court, while dealing with
the Death Reference, has opined that when specific
overt acts have not been attributed and similarly
placed accused persons have been given life
sentence and Ram Narayan, who had engineered the
incident, has breathed his last, it would not be
appropriate to impose death sentence. The High
Court has observed that the three sons of Ram
Narayan had been awarded death sentence and the
other two are villagers and in the backdrop of the
situation, there were mitigating factors for
commutation of the sentence.
31. Apart from the reasons ascribed by the High Court,
we think it apposite to consider the circumstances
whether in the present case, death sentence is
warranted. In Bachan Singh v. State of Punjab16
,
the Constitution Bench has held as follows: –
“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
16 (1980) 2 SCC 684
34Page 35
rarest of rare cases when the alternative
option is unquestionably foreclosed.”
32. In Machhi Singh and Others v. State of
Punjab17
, the Court, after stating the feeling of the
community and its desire for self preservation,
expressed that in every case, the community does
not desire to withdraw the protection of self
preservation by sanctioning the death penalty. It
may do so in “rarest of rare cases” when its
collective conscience is so shocked that it would
expect the holders of the judicial power centre to
inflict death penalty irrespective of their personal
opinion as regards the desirability or otherwise of
retaining death penalty. After so stating, the threeJudge Bench culled out the propositions envisaged
from Bachan Singh’s case which are as follows: –
“(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
along with the circumstances of the
‘crime’.
17 (1983) 3 SCC 470
35Page 36
(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 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.”
33. In Haresh Mohandas Rajput v State of
Maharshtra18
, the Bench referred to the principles
in Bachan Singh (supra) and Machhi Singh (supra)
and proceeded to state as follows:-
“ “The rarest of the rare case” comes
when a convict would be a menace and
threat to the harmonious and peaceful
coexistence of the society. The crime may
be heinous or brutal but may not be in the
category of “the rarest of the rare case”.
There must be no reason to believe that
the accused cannot be reformed or
rehabilitated and that he is likely to
continue criminal acts of violence as would
18 (2011) 12 SCC 56
36Page 37
constitute a continuing threat to the
society. The accused may be a menace to
the society and would continue to be so,
threatening its peaceful and harmonious
coexistence. The manner in which the
crime is committed must be such that it
may result in intense and extreme
indignation of the community and shock
the collective conscience of the society.
Where an accused does not act on any
spur-of-the-moment provocation and
indulges himself in a deliberately planned
crime and meticulously executes it, the
death sentence may be the most
appropriate punishment for such a ghastly
crime. The death sentence may be
warranted where the victims are innocent
children and helpless women. Thus, in case
the crime is committed in a most cruel and
inhuman manner which is an extremely
brutal, grotesque, diabolical, revolting and
dastardly manner, where his act affects
the entire moral fibre of the society e.g.
crime committed for power or political
ambition or indulging in organised criminal
activities, death sentence should be
awarded. (See C. Muniappan v. State of
T.N.19
, Dara Singh v. Republic of India20
,
Surendra Koli v. State of U.P.21
, Mohd.
Mannan v. State of Bihar22 and Sudam v.
State of Maharashtra23.)”
34. In Ram Pal v. State of U.P.24
, a two-Judge Bench
took note of the fact that there has been termination
of life of number of people and opined that the
19 (2010) 9 SCC 567
20 (2011) 2 SCC 490
21 (2011) 4 SCC 80
22 (2011) 5 SCC 509
23 (2011) 7 SCC 125
24 (2003) 7 SCC 141
37Page 38
number of deaths cannot be the sole criterion for
awarding the maximum punishment of death. It
further ruled that while in a given case, death penalty
may be the appropriate sentence even for a single
murder, it would not necessarily mean that in every
case of multiple murders, death penalty has to be the
normal rule. The Court took note of the guidelines
stated by the Constitution Bench in the case of
Bachan Singh (supra), the aggravating
circumstances and the mitigating circumstances
postulated therein and opined that the incident had
taken place as a sequel to the murder of close
relative of the appellant and the other principal
accused which was suspected to have been
committed by the members of the victims’ family.
The two-Judge Bench expressed the view that the
circumstance could be treated as a circumstance
which amounted to a provocation from the victim
side. That apart, the two-Judge Bench observed that
the appellant therein was similarly placed with the
other accused persons who had been imposed
38Page 39
sentence for life imprisonment and further, they had
spent nearly seventeen years in custody.
35. In the present case, as we notice from the factual
matrix, the crime had taken place because Ram
Narayan had suspected that the accused persons
were responsible for extinguishing the life spark of
his son. It is also seen that similarly placed persons
have been imposed life sentence. Quite apart from
that, all the accused persons have almost spent
thirteen years in custody. Regard being had to the
totality of the circumstances, it cannot be said that
imprisonment for life is inadequate and the
circumstances are so grave that it calls for a death
sentence. When we adjudge the whole scenario in
proper perspective, we are inclined to think that it is
not a case which can be treated to be a case of
extreme culpability and there is no other option but
to impose death penalty. Thus, we do not find any
error in the decision of the High Court by which it has
commuted the death sentence to life imprisonment.
39Page 40
36. Consequently, the appeal filed by the accusedappellants and the appeals filed by the State for
enhancement of penalty and reversal of the
judgment of acquittal rendered in favour of the
accused persons are dismissed.
……………………………….J.
[K. S. Radhakrishnan]
….………………………….J.
[Dipak Misra]
New Delhi;
April 22, 2013.
40

 

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