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Whether death sentence or life imprisonment – Killing of a child and an old man for Rs.100/- at gunpoint – committed 23 crimes – Three for murder and two for attempt to murder – Trial court awarded death sentence as it is cold blooded murder – High court confirmed – Apex court converted to life imprisonment and awarded 20 years of rigorous imprisonment with out any remission of the sentence already under gone = Birju …. Appellant Versus State of M.P. …. Respondent= 2014 ( Feb. Part)judis.nic.in/supremecourt/filename=41222

Whether death sentence or life imprisonment –  Killing  of a child and an old man for Rs.100/- at gunpoint – committed 23 crimes – Three for murder and two for attempt to murder – Trial court awarded death sentence as it is cold blooded murder – High court confirmed – Apex court converted to life imprisonment  and awarded 20 years of rigorous imprisonment with out  any remission  of the sentence already under gone = 

R-R TEST=

(1)  the

     offences relating to the commission of heinous crime like murder, rape,

     armed dacoity, kidnapping etc. by the accused with a  prior  record  of

     conviction for capital felony  or  offences  committed  by  the  person

     having  a  substantial  history  of  serious  assaults   and   criminal

     conviction; and 

(2)  the offence was committed while the  offender  was

     engaged in the commission of another serious offence.   First  criteria

     may be a relevant factor while applying  the  R-R  test,  provided  the

     offences relating to heinous crimes like  murder,  rape,  dacoity  etc.

     have ended in conviction.

 

 whether the instant case falls within the category of rarest  in

           rare case, we visualize the following circumstances :-

 

 

              i) The offence  was  not  committed  under  the  influence  of

                 extreme mental or emotional disturbance.

 

 

             ii) Appellant is a quite matured person aged  about  45  years.

                 He is neither young nor old.

 

 

            iii) Looking to his  criminal  antecedent  i.e.  he  was  charge

                 sheeted for commission of 24 criminal cases, out of which 3

                 were under Section 302  of  “the  IPC”  and  2  were  under

                 Section  307  of  “the  IPC”,  therefore,   there   is   no

                 probability that the  accused  would  not  commit  acts  of

                 violence in future and his presence in society would  be  a

                 continuing threat to society.

 

 

             iv) There is no probability or possibility  of  reformation  or

                 rehabilitation of the appellant.

 

 

              v) In  the  facts  and  circumstances  of  the  present  case,

                 accused/appellant cannot morally justify the commission  of

                 murder of child aged one year by him.

 

 

             vi) There is no direct or indirect evidence  available  to  say

                 that accused  acted  under  the  duress  or  domination  of

                 another person.

 

 

            vii) The condition of appellant/accused was not such, which  may

                 show that he was mentally defective  and  the  said  defect

                 impaired his capacity to appreciate the criminality of  his

                 conduct.

 

 

           viii) It is purely a cold blooded murder and evidence  on  record

                 clearly showing the fact that appellant has  absolutely  no

                 regard for life and limb of others.”

 

 

     14.   One of the factors which weighed with the High  Court  to  affirm

     the  death  sentence  was  that  the  accused  was  charge-sheeted  for

     commissioning of 24 criminal cases,  out  of  which  three  were  under

     Section 302 IPC and two were under Section 307 IPC,  consequently,  the

     Court held that there was no probability that  the  accused  would  not

     commit the act of violence in  future  and  his  presence  would  be  a

     continuing threat to the society.  The Court also took  the  view  that

     there  was  no   possibility   or   probability   of   reformation   or

     rehabilitation of the accused.

=

Consequently,

     while affirming the conviction, we are not prepared to say that it is a

     rarest of rare case, warranting capital  punishment.    We,  therefore,

     set aside the death sentence awarded by the trial Court and affirmed by

     the High Court, and convert the same to imprisonment for life.

in Swami Shraddanand (2) alias  Murli

     Manohar Sharma v. State of Karnataka (2008) 13 SCC 767.  

In that  case,

     this Court took the view that there is a third  category  of  cases  in

     which Court can, while awarding the sentence for imprisonment of  life,

     fix a term  of  imprisonment  of  14  or  20  years  (with  or  without

     remission) instead of death penalty  and  can,  in  appropriate  cases,

     order that the sentences would run consecutively and not  concurrently.

     Above sentencing policy has been  adopted  by  this  Court  in  several

     cases, since then, 

the latest being Gurvail Singh v.  State  of  Punjab

     (2013) 10 SCC 631.  

We have  indicated  that  this  a  case  

where  the

     accused is involved in twenty four criminal cases, 

of which  three  are

     for the offence of murder and 

two are for attempting to commit  murder.

     In such circumstances, if the appellant is given  a  lesser  punishment

     and let free, he would be a menace to the society.

 

 

     21.    We are of the view that this is a fit case  where  20  years  of

     rigorous imprisonment, without remission, to the  appellant,  over  the

     period which he has already undergone, would be  an  adequate  sentence

     and will render substantial justice.  Ordered accordingly.

 

 

     22.    The appeals stand disposed of as above.   

 

2014 ( Feb. Part)judis.nic.in/supremecourt/filename=41222

K.S. RADHAKRISHNAN, VIKRAMAJIT SEN

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs.1352-1353 OF 2012
Birju …. Appellant
Versus
State of M.P. …. Respondent

 
J U D G M E N T

 
K.S. Radhakrishnan, J.

 
1. We are, in this case, concerned with the killing of a child aged
one year who was in the arms of PW1, the grand-father, for which the
accused was awarded death sentence by the trial court, which was
affirmed by the High Court and these appeals have been preferred by the
accused against the judgment of conviction and sentence awarded to him
for the offences under Section 302 of the Indian Penal Code, read with
Section 27 of the Arms Act, 1959.
2. The prosecution case, in short, is as follows:
PW1, the complainant was standing at the grocery shop of Kamal Bansal
(PW2) on 13.12.2009 at about 8.15 PM for purchasing some goods. He was
holding his grandson, Arman, aged one year in his arms. PW4, Jagdish,
was also standing in front of the said shop. The accused-Birju,
resident of the same locality, known as Rustam Ka Bagicha, came out
there on a motorcycle. After parking the motorcycle, he went to
Babulal and questioned him as to why he was standing there. Babulal
replied that he had come to purchase some kirana. While so, the
accused-appellant demanded Rs.100/- for consuming liquor. Babulal
expressed his inability to give the money, on which, the accused abused
him in the name of his mother and took out a country made pistol from
his pocket and shot, which hit on the right temporal area of infant-
Arman. Persons of the locality, which included Rakhi, daughter of the
complainant, her aunt-in-law Sharda Bai and few other inhabitants of
the area, reached the spot after hearing the sound. Son-in-law of the
complainant, Jeevan, took Arman to the hospital and PW1 immediately
reached the police station and lodged the first information report.
3. PW 12, the Station House Officer, reached the spot and prepared
a spot map (Ext.P/2) and seized the blood stained shirt of complainant
Babulal vide seizure memo (Ext.P/3). Empty cartridge, motorcycle and
used bullet were seized from the spot vide seizure memo (Ext.P/6).
Inquest report (Ext.P/8) was prepared on the dead body, which was then
sent for post-mortem examination. PW10 Dr. A.K. Langewar conducted the
post-mortem examination.
4. The accused was later nabbed and from his possession pistol was
recovered and seized articles were sent for examination to the Forensic
Science Laboratory, Tamil Nadu vide Ext.P/18-A. The investigation
officer recorded the statements of witnesses and completed the
investigation and the accused was charge-sheeted under Sections 302,
327 and 398 of the IPC and Sections 25 and 27 of the Arms Act, 1959.
5. The prosecution examined 12 witnesses and produced 19 documents
and none was examined on the side of the defence.
6. As already indicated, after appreciating the oral and
documentary evidence, the trial court found the accused guilty and held
that the case of the accused falls under “rarest of rare” category and
awarded capital punishment, which was affirmed by the High Court. The
accused was also convicted under Section 27 of the Arms Act and was
sentenced to rigorous imprisonment for three years and a fine of
Rs.1000/-, which was also affirmed by the High Court.
7. Mr. Rana Ranjit Singh, learned counsel appearing for the
appellant, submitted that the case on hand is not the one which falls
in the category of “rarest of rare” warranting capital punishment.
Learned counsel pointed out that even if the entire prosecution case is
accepted, the offence would be covered under Section 304 Part II IPC.
Learned counsel also pointed out that the accused had no intention to
kill either PW1 or the child. The accused, at best, was under extreme
mental or emotional disturbance and there will be no occasion for him
to indulge in similar offence in future, and the possibility of accused
being reformed could not be ruled out. Learned counsel also submitted
that the trial court and the High Court have committed an error in
awarding the death sentence on the ground that the accused was involved
in various other criminal cases which, according to the counsel, cannot
be an aggravating factor to be taken into consideration for the purpose
of awarding the death sentence.
8. Mr. C.D. Singh, learned counsel appearing for the State, on the
other hand, pointed out that the prosecution has proved the case beyond
reasonable doubt. Learned counsel referred to the evidence of PW4 and
PW7 and stated that they were eye-witnesses to the incident and there
is no reason to discard their oral evidence. Learned counsel submitted
that the murder was committed in cold blooded manner and evidence on
record clearly shows that the accused has absolutely no regard for the
life or limb of others. Learned counsel also submitted that there is
no probability of reformation or rehabilitation of the accused.
Learned counsel also submitted that, in the instant case, crime test,
criminal test and R-R test have been fully satisfied and there is no
reason to interfere with the death sentence awarded by the trial court
and affirmed by the High Court.
9. PWs 1 to 4 and 7 fully and completely supported the case of the
prosecution. PW1, the grand-father of the child, PWs 2, 3, 4 and 7
have depicted an eye-to-eye picture of what transpired on the fateful
day. Their version is consistent and highly reliable. Eye witnesses’
version is fully corroborated with post-mortem and FSL reports. PW6,
of course, has been declared as hostile, but the evidence of a hostile
witness cannot be discarded as a whole and the relevant parts thereof,
which are admissible in law, can be used, either by the prosecution or
the defence. Reference may be made to the judgment of this Court in C.
Muniappan and Others v. State of Tamil Nadu (2010) 9 SCC 567. PW6, in
his statement under Section 164 Cr.P.C. has stated that, on the date of
the incident, he heard PW1 shouting “goli mar di”, “goli mar di”, which
indicates that, to that extent, the statement supports the prosecution.
The incident, as already stated, happened in front of a grocery shop
at about 8.15 PM on 13.12.2009 when PW1 was standing in front of the
grocery shop of PW2. Accused, at that time, reached the spot and
demanded Rs.100/-, which PW1 refused to pay and, for that sole reason,
he took out the pistol from his pocket and shot, which hit the temporal
region of Arman, aged one year and he died.
10. Motive for committing the murder was evidently for getting the
money to consume liquor for which, unfortunately, a child of one year
became the casualty. The country made pistol used for committing the
offence was subsequently recovered. PW10, who conducted the post-
mortem on the dead body of the child, noticed various injuries and
reiterated that the bullet had pierced through the meningeal membranes
and both the lobes of the brain. PW10 Doctor opined that the wound was
caused by firearm and the deceased died within 24 hours of post-mortem
examination. The prosecution has successfully proved the cause of
death and the use of the firearm by the accused and we fully concur
with the findings of the trial court, affirmed by the High Court that
offences under Section 302 IPC and Section 27 of the Arms Act, 1959,
have been made out.
11. We are now concerned with the question whether the case falls
under the category of “rarest of rare”, warranting the death sentence.
12. We have held in Shankar Kisnrao Khade v. State of Maharashtra
(2013) 5 SCC 546 that even if the crime test and criminal test have
been fully satisfied, to award the death sentence, the prosecution has
to satisfy the R-R Test. We have noticed that one of the factors which
weighed with the trial court as well as the High Court to award death
sentence to the accused was his criminal antecedents. The High Court
while dealing with the criminal antecedents of the accused stated as
follows:
“14. The appellant is having criminal antecedent, which is
clear from the statement of investigating officer (PW-12) Mohan
Singh in paragraph 12, wherein he has deposed that the appellant
is a notified bully in the concerned police station and as many
as 24 criminal cases were registered against him by the police,
out of which three cases of murder and two were attempt to
commit murder. In all these cases, after investigation,
appellant was charge sheeted for trial before the court of law.
In cross-examination, this statement has been challenged by the
defence. In paragraph 13 only question was put to this witness
that along with the charge sheet list of criminal cases were not
filed, on which witness replied that same is available in the
case diary. After this answer, counsel for the appellant did
not ask the Court to verify this fact and also no suggestion was
given to this witness that appellant was not facing prosecution
in all the above mentioned criminal cases. These facts are
sufficient to hold that appellant was fully aware about the use
and consequence of the deadly weapon like pistol, and when his
demand was not satisfied; he used the same intentionally to
commit murder of child, Arman. The injuries show that pistol
was fired very accurately and bullet pierced through and through
at the vital part of the body i.e. skull. When appellant was
using firearm for causing injury to infant Arman, he must be
knowing the consequence that because of use of such deadly
weapon, there would be no chance for survival of a child aged
one year.”

 
13. Further, the High Court also, after referring to the various
cases, where this Court had awarded death sentence, considered the
present case as rarest of rare one and stated as follows:
“26. In the light of aforesaid legal position for considering
whether the instant case falls within the category of rarest in
rare case, we visualize the following circumstances :-
i) The offence was not committed under the influence of
extreme mental or emotional disturbance.
ii) Appellant is a quite matured person aged about 45 years.
He is neither young nor old.
iii) Looking to his criminal antecedent i.e. he was charge
sheeted for commission of 24 criminal cases, out of which 3
were under Section 302 of “the IPC” and 2 were under
Section 307 of “the IPC”, therefore, there is no
probability that the accused would not commit acts of
violence in future and his presence in society would be a
continuing threat to society.
iv) There is no probability or possibility of reformation or
rehabilitation of the appellant.
v) In the facts and circumstances of the present case,
accused/appellant cannot morally justify the commission of
murder of child aged one year by him.
vi) There is no direct or indirect evidence available to say
that accused acted under the duress or domination of
another person.
vii) The condition of appellant/accused was not such, which may
show that he was mentally defective and the said defect
impaired his capacity to appreciate the criminality of his
conduct.
viii) It is purely a cold blooded murder and evidence on record
clearly showing the fact that appellant has absolutely no
regard for life and limb of others.”
14. One of the factors which weighed with the High Court to affirm
the death sentence was that the accused was charge-sheeted for
commissioning of 24 criminal cases, out of which three were under
Section 302 IPC and two were under Section 307 IPC, consequently, the
Court held that there was no probability that the accused would not
commit the act of violence in future and his presence would be a
continuing threat to the society. The Court also took the view that
there was no possibility or probability of reformation or
rehabilitation of the accused.
15. We have in Shankar Kisanrao Khade’s case (supra) dealt with the
question as to whether the previous criminal record of the accused
would be an aggravating circumstance to be taken note of while awarding
death sentence and held that the mere pendency of few criminal cases,
as such, is not an aggravating circumstance to be taken note of while
awarding death sentence, since the accused is not found guilty and
convicted in those cases. In the instant case, it was stated, that the
accused was involved in 24 criminal cases, out of which three were
registered against the accused for murder and two cases of attempting
to commit murder and, in all those cases, the accused was charge-
sheeted for trial before the court of law. No materials have been
produced before us to show that the accused stood convicted in any of
those cases. Accused has only been charge-sheeted and not convicted,
hence, that factor is not a relevant factor to be taken note of while
applying the R-R test so as to award capital punishment. May be, in a
given case, the pendency of large number of criminal cases against the
accused person might be a factor which could be taken note of in
awarding a sentence but, in any case, not a relevant factor for
awarding capital punishment. True, when there are more than two dozen
cases, of which three relate to the offence of murder, the usual plea
of false implication by the defence has to be put on the back seat, and
may have an impact on the sentencing policy, since the presence of the
accused could be a continuing threat to the society and hence calls for
longer period of incarceration.
16. We also notice, while laying down various criteria in
determining the aggravating circumstances, two aspects, often seen
referred to in Bachan Singh v. State of Punjab (1980) 2 SCC 684, Machhi
Singh and others v. State of Punjab (1983) 3 SCC 470 and Rajendra
Pralhadrao Wasnik v. State of Maharashtra (2012) 4 SCC 37, are (1) the
offences relating to the commission of heinous crime like murder, rape,
armed dacoity, kidnapping etc. by the accused with a prior record of
conviction for capital felony or offences committed by the person
having a substantial history of serious assaults and criminal
conviction; and (2) the offence was committed while the offender was
engaged in the commission of another serious offence. First criteria
may be a relevant factor while applying the R-R test, provided the
offences relating to heinous crimes like murder, rape, dacoity etc.
have ended in conviction.
17. We may first examine whether “substantial history of serious
assaults and criminal conviction” is an aggravating circumstance when
the court is dealing with the offences relating to the heinous crimes
like murder, rape, armed docoity etc. Prior record of the conviction,
in our view, will be a relevant factor, but that conviction should have
attained finality so as to treat it as aggravating circumstance for
awarding death sentence. The second aspect deals with a situation
where an offence was committed, while the offender was engaged in the
commission of another serious offence. This is a situation where the
accused is engaged in the commission of another serious offence which
has not ended in conviction and attained finality.
18. In the instant case, the Court took the view that there was no
probability that the accused would not commit criminal acts of violence
and would constitute a continuing threat to the society and there would
be no probability that the accused could be reformed or rehabilitated.
In Shankar Kisanrao Khade’s case (supra), while dealing with the
criminal test (mitigating circumstances), this Court noticed one of the
circumstances to be considered by the trial Court, while applying the
test, is with regard to the chances of the accused not indulging in
commission of the crime again and the probability of the accused being
reformed and rehabilitated. We find, in several cases, the trial
Court while applying the criminal test, without any material on hand,
either will hold that there would be no possibility of the accused
indulging in commission of crime or that he would indulge in such
offences in future and, therefore, it would not be possible to reform
or rehabilitate him. Courts used to apply reformative theory in
certain minor offences and while convicting persons, the Courts
sometimes release the accused on probation in terms of Section 360
Cr.P.C. and Sections 3 and 4 of the Probation of Offenders Act, 1958.
Sections 13 and 14 of the Act provide for appointment of Probation
Officers and the nature of duties to be performed. Courts also, while
exercising power under Section 4, call for a report from the Probation
Officer. In our view, while awarding sentence, in appropriate cases,
while hearing the accused under Section 235(2) Cr.P.C., Courts can also
call for a report from the Probation Officer, while applying the Crime
Test guideline No.3, as laid down in Shankar Kisanrao Khade’s case
(supra). Court can then examine whether the accused is likely to
indulge in commission of any crime or there is any probability of the
accused being reformed and rehabilitated.
19. We have no doubt in our mind that the accused had the full
knowledge, if he fires the shot on the temporal area, that is between
the forehead and the ear, it would result in death of the child of one
year who was in the arms of PW1. Appellant, of course, demanded
Rs.100/- from PW1, which he refused and then he took out the pistol and
fired at the right temporal area of the child, as retaliation of not
meeting his demand and there is nothing to show that, at the time of
the incident, he was under the influence of liquor. Consequently,
while affirming the conviction, we are not prepared to say that it is a
rarest of rare case, warranting capital punishment. We, therefore,
set aside the death sentence awarded by the trial Court and affirmed by
the High Court, and convert the same to imprisonment for life.
20. We are, however, of the view that this is a fit case where we
can apply the principle laid down in Swami Shraddanand (2) alias Murli
Manohar Sharma v. State of Karnataka (2008) 13 SCC 767. In that case,
this Court took the view that there is a third category of cases in
which Court can, while awarding the sentence for imprisonment of life,
fix a term of imprisonment of 14 or 20 years (with or without
remission) instead of death penalty and can, in appropriate cases,
order that the sentences would run consecutively and not concurrently.
Above sentencing policy has been adopted by this Court in several
cases, since then, the latest being Gurvail Singh v. State of Punjab
(2013) 10 SCC 631. We have indicated that this a case where the
accused is involved in twenty four criminal cases, of which three are
for the offence of murder and two are for attempting to commit murder.
In such circumstances, if the appellant is given a lesser punishment
and let free, he would be a menace to the society.
21. We are of the view that this is a fit case where 20 years of
rigorous imprisonment, without remission, to the appellant, over the
period which he has already undergone, would be an adequate sentence
and will render substantial justice. Ordered accordingly.
22. The appeals stand disposed of as above.

 

 

 
……..……………………J.
(K.S. Radhakrishnan)

 
……..……………………J.
(Vikramajit Sen)
New Delhi,
February 14, 2014.

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