JUDGMENT
G.B. Pattnaik, J.
1. The learned Additional Sessions Judge, Ganjam, Berhampur, having convicted the accused Under Section 302. Indian Penal Code, and having sentenced him to be hanged by the neck tilt he is dead has made the reference to this Court Under Section 366 of the Code of Criminal Procedure. The accused has preferred the Criminal Appeal from the Jail against his conviction and sentence passed by the learned Additional Sessions Judge Under Section 302 as well as Under Section 324, Indian Penal Code. By the judgment of the learned Additional Sessions Judge, the accused has been convicted Under Section 302, Indian Penal Code for killing a young girl called Sabita Reddy and has further been convicted Under Section 334, Indian Penal Code, for causing hurt to PWs 1 and 10 and has been sentenced to rigorous imprisonment for two years on that Count.
2. The prosecution case, in brief, is that one and half years prior to the date of occurrence, a quarrel had ensued between the accused and the father of the deceased and on account of the said quarrej. the accused had borne a grudge. On 20th of June. 1990, at 11. 00 A. M. deceased, a young girl of six years’ old was playing on the village ‘Danda’ along with her friends.The accused all on a sudden lifted the deceased and entered into his house and bolted the doors from inside. Several persons who saw the lifting of the girl raised hullah. PWs 1, 4 and 10 came running and knocked the door of the accused, but the door was found to be closed. At last they broke open the back- side door and entered into the house and found deceased Sabita lying dead with bleeding injuries and a small Kati'(M. O. I.) stained with blood was lying there. They also found the accused himself standing there with another ‘Khanda-Kati (M. O. II) and when PWs 1 and 10 advanced towards the accused, he struck them with the weapon in his hand as a result of which both PWs 1 and 10 sustained injuries and thereafter the accused escaped through the back-door with M. O. II in his hand. PW 1 tKetrrwent to the police station and lodged a report which was treated as F.I.R. (Ext. 1). The two injured persons, namely PWs 1 and 10 were examined medically on police requisition. The police then registered a case and started investigation and on completion of the investigation filed charge-sheet. On being committed, the accused stood his trial,
3. The defence plea is one of denial.
4. The prosecution examined 11 witnesses in all. The defence has examined none. Of the 11 prosecution witnesses, PWs 5 and 6 deposed about the accused lifting the child and entering into his house. PWs. 1,4 and 10 deposed about their breaking open the door of the house of the accused and entering inside, their seeing the deceased lying injured with bleeding injuries and accused standing there. PW 2 is the doctor who examined PWs 1 and 10 and PW 3 is the doctor who had conducted the autopsy on the dead body of the deceased. PW 7 is the Sub-Inspector of Police who apprehended the accused near Khajuria Bandha tank and PW 8 is the constable who took the deadbody of Sabita for post mortem examination. PW 9 is the Magistrate who had recorded the confessional statement of the accused and PW 11 is the Investigating Officer.
5. The learned Additional Sessions Judge relying upon the evidence of PWs 1, 4, 5,6 and 10 as well as the confessional statement of the accused, o Ext. 14, came to the conclusion that it was the accused who was the author of the injuries found on the deceased Sabita as well as in respect of the injuries found on PWs 1 and 10. Considering the act of the accused to be a brutal one, the learned Additional Sessions Judge convicted the accused Under Section 302, Indian Penal Code, and awarded the extreme penalty of death. So far as the conviction of the accused Under Section 324, Indian Penal Code is concerned, penalty of rigorous imprisonment for two years has been awarded by the learned Additional Sessions Judge.
6. Mr. Mund, the learned counsel appearing for the accused, places before us the evidence of PWs 1, A, 5, 6 and 10 but is unable to point out any infirmity in their statements so as to impeach their testimony. We shall scrutinise their evidence to find out whether there is any infirmity in their testimony. But having failed in his attempt to impeach the testimony of these witnesses, Mr. Mund submits that even though the accused might have committed murder of deceased Sabita, yet there is no special reason, special to the facts and circumstances of the present case, which can be catalogued as justified for a severe punishment of death, sentence, particularly when the crime in question cannot be said to have sent tremors in the community to be firmly dealt with to protect the community from the perpetrators of such crime.
7. Before considering the question whether the extreme penalty of death should be awarded in the facts and circumstances of the present case, we think it appropriate to consider the evidence on record to find out whether the prosecution has been able to establish the charge beyond all reasonable doubts.
Their Lordships discussed the -oral evidence, confession, serological and autopsy reports and found :
9. In view of the aforesaid evidence, we have no hesitation to confirm the conclusion of the learned Additional Sessions judge that it is the accused who is the perpetrator of the crime and who caused the’ injuries in question on the deceased as a result of which the deceased died and, therefore, the prosecution must be held to have established the charge Under Section 302, Indian Penal Code, against the accused appellant, beyon all reasonable doubts.
10. The question, however, further remains for consideration is whether the offence can be said to be of such an exceptional nature and the offender is of such a menace to the society that he deserves the extreme punishment of death. No doubt, the injures on the deceased indicate that the assault on her was brutal after lifting her from the road while she was playing. Mr. Mund, the learned counsel for the accused appellant, brings to our notice two decisions of the Supreme Court, reported in A.I.R. 1980 Supreme Court, 898 (Bachan Singh v. State of Punjab) as well as A. I. R. 1989 Supreme Court, 1456 (Allauddin Mian and Ors. Sharif Mian and Anr. v. State of Bihar). In those decisionn their Lordships of the Supreme Court have indicated as to where the extreme penalty of death should be given, in Bachan Singh’soase (AIR 1980 S.C- 898), where the constitutionality of the provision of award of penalty had been challenged, their Lordships of Supreme Court observed :
“………In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the pro- portion of extreme depravity that ‘special reasons’ can legitimately be said to exist.”
With reference to the facts and figures furnished by the Union of India in that case, it was also indicated that :
“……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…………”
In Allauddin Mian’s case (AIR 1989 S. C. 1456), their Lordships of the Supreme Court observed : o
“Section 302, IPC casts a heavy duty on the Court to choose between death and imprisonment for life. When the Court is called upon to choose between the convict’s cry ‘ I want to live’ and the prosecutor’s demand ‘he deserves to die it goes without saying that the Court must show a high degree of concern and sensitiveness in the choice of sentence. In our justice delivery system several difficult decisions are left to the presiding officers, some- times without providing the scales or the weights for the same. In cases of murder, however, since the choice is between capital punishment and life imprisonment the legislature has provided a guideline in the form of Sub-section (3) of Section 354 of the Criminal Procedure Code, 1973……………This provision makes it obligatory in cases of conviction for an offence punishable with death or with imprisonment for life or for a term of years to assign reasons in support of the sentence awarded to the convict and further ordains that in case the Judge awards the death penalty’special reasons* for such sentence shall be stated in the judgment………….”
It was further observed :
“Where a sentence of severity is imposed, it is imperative that the Judge should indicate the basis upon which he considers a sentence of that magnitude justified. Unless there are special reasons, special to the facts of the particular case, which can be catalogued as justifying a severe punishment the Judge would not award the death sentence, It may be stated that if a Judge finds that he is unable to explain with reasonable accuracy the basis for selecting the higher of the two sentences his choice should fall on the lower sentence. In all such cases the law casts an obligation on the Judge to make his choice after carefully examining the pros and cons of each case. It must at once be conceded that offenders of some particularly grossly brutal crimes which send tremors in the community have to be firmly dealt with to protect the community from the perpetrators of such crimes. Where the incidence of a certain crime is rapidly growing and is assuming menacing proportions, for example, acid pouring or bride burning, it may be necessary for the Courts to award exemplary punishments to protect the community and to deter others from committing such crimes. Since the legislature in its wisdom thought that in some rare cases it may still be necessary to impose the extreme punishment of death to deter others and to protect the society and in a given case the country, it left the choice of sentence to the judiciary with the rider that the Judge may visit the convict with the extreme punishment provided there existspacial reasons for so doing…………”
Applying the tests laid down in the aforesaid two cases to the facts and circumstances of the present case, we find that the motive for the crime was quite obscure and the kilting was not for any gain. Even though the assault has been bruta yet it cannot be said that it is one of those “rarest of the rare” cases where the extreme penalty of death should be awarded. Taking into consideration the nature of the crime and the circumstances of the offender, it is not possible to hold the offence is a menace to the society and, therefore, the sentence of life imprisonment would be altogether inadequate. We would accordingly hold that this case does not deserve the extreme punishment of death and, on the other hand, we would sentence the accused appellant with the alternative punishment of imprisonment for life. Consequently, while upholding the conviction Under Section 302, Indian Penal Code, we direct that the accused appellant be sentenced to imprisonment for life. The reference ‘ made by the learned Additional Sessions Judge Under Section 366 of the Code of Criminal Procedure is accordingly discharged.
11. So far as the .conviction of the appellant Under Section 324, Indian Penal Code, is concerned, as well as the sentence passed there- under, the same remains unassailable and cannot be interfered with.
The Death Reference as welt as the Jail Criminal Appeal are accordingly disposed of.
D.M. Patnaik. J.
I agree.