PETITIONER: SRI MAHENDRA NATH DAS SRI GOBINDA DAS Vs. RESPONDENT: STATE OF ASSAM DATE OF JUDGMENT: 14/05/1999 BENCH: D.P.Mohapatro, Syed Shah Mohammed Quadri JUDGMENT:
J U D G M E N T
S.SHAH MOHAMMED QUADRI,J.
The appellant was found guilty of offence under
Section 302 IPC and was sentenced to death by the Sessions
Judge, Kamrup, Guwahati in S.C.No.114 (K) of 1996 on
18.8.1997 which was confirmed by the Division Bench of the
Gauhati High Court in Criminal Death Ref.No.2 of 1997 and
Criminal Appeal No.254 (J) of 1997 on 3.2.1998. Against the
judgment of the High Court, this appeal is filed by special
leave. This Court admitted the appeal limited to the
question of sentence. The gravamen of the charge against
the appellant is that in the morning hours, around 7 a.m.,
on April 24, 1996 Hara Kanta Das was taking his morning cup
of tea on the corner tea stall of M.G. Road and Chamber
Road, Guwahati along with others. The appellant arrived at
the scene with a sword like weapon and with it dealt blows
to Hara Kanta Das who fell down on the ground. The
appellant amputed the right hand and thereafter severed the
head of Hara Kanta Das (the deceased). With the head of the
deceased in one hand and the blood dripping weapon in the
other hand, he moved majestically towards Fancy Bazar Police
Out Post. The occurrence was witnessed by persons standing
there of whom PW 3, Kalu Das, PW5, Gaya Prasad and PW 8,
Gauri Sankar Thakur were examined as eye witnesses. Ratan
Rai, PW 1, the sweeper rushed to the police station to
inform about the incident. There he found the appellant
entering into the Police Out Post. PW 2, Rateshwar Barman
was on duty. The appellant asked PW 2, where he should keep
the head and the weapon and placed them in the verandah of
the police station. The weapon was seized and marked as
Ext.1 after conducting inquest over the head. After taking
the head to the scene of occurrence where the body was
lying, another inquest was conducted and the body was sent
to the Doctors for conducting post mortem examination. PW
9, Dr.Pratap Ch.Sarmah, conducted the post mortem
examination and sent report, Ext.14. PW 9 noted that the
head of the deceased was severed from the body which was
having as many as nine injuries on it. The learned Sessions
Judge, Kamrup, Guwahati having considered the evidence of
eye witnesses, which was corroborated by the medical
evidence, found the appellant guilty of offence under
Section 302 IPC. On the question of sentence the learned
Sessions Judge gave an opportunity to the appellant to state
the mitigating circumstances, if any, and noted that he did
not state anything relevant and that he even refused to put
his signatures on his statement. The learned Sessions Judge
mentioned that the appellant remained uncooperative, on
being asked further questions in regard to sentence. In the
circumstances of the case having applied the principles laid
down by this Court, the learned Sessions Judge concluded
that it is rarest of the rare case and accordingly sentenced
the appellant to death and referred the case to the High
Court under Section 366(1) Cr.P.C. for confirmation of the
death sentence. The reference was numbered as Criminal
Death Ref.No.2 of 1997. Against his conviction and
sentence, the appellant filed Criminal Appeal No.254 (J) of
1997 in the High Court of Assam, Nagaland, Meghalaya,
Manipur, Tripura, Mizoram and Arunachal Pradesh at Gauhati.
That appeal and Criminal Death Ref.No.2 of 1997 were heard
together. After elaborate consideration of all the facts
and law, the High Court confirmed the conviction and
sentence of death passed by the learned Sessions Judge by
its judgment dated February 3, 1998, referred to above.
Mr.Goswami, learned senior counsel appearing for the
appellant, submitted that the appellant was not properly
represented before the Trial Court as well as the High Court
at the material time; he is a young man of 33 years and
having three unmarried sisters and aged parents; he was
also not well at the time of occurrence. The case has also
not been investigated properly and there is no material to
show that he has become menace to the society. He prayed
that the death sentence may be commuted to life
imprisonment.
Mr.Sunil Jain, learned counsel appearing for the
State, contended that the cruel manner in which the crime is
committed did not admit of any leniency; the deceased came
pre-determined duly armed with sword and targeted the
deceased among the crowd of persons standing there while the
deceased was unarmed and was taking his morning tea and that
it is a fit case to confirm the death sentence. The
exercise of power to award death sentence is now
circumscribed by Section 354(3) Cr.P.C. The said
sub-section provides that when the conviction is for an
offence punishable with death or, in the alternative, with
imprisonment for life or imprisonment for a term of years,
the judgment shall state the reasons for the sentence
awarded, and, in the case of sentence of death, the special
reasons for such sentence. The principles with regard to
awarding punishment of death are now well-settled by
judgments of this Court in Bachan Singh vs. State of Punjab
[AIR 1980 SC 989], Machhi Singh & Ors. vs. State of Punjab
[(1983) 3 SCR 413] and Kehar Singh & Ors. vs. State (Delhi
Administration) [(1988) 3 SCC 609. Briefly stated, the
principles are : that on conviction under Section 302 IPC
the normal rule is to award punishment of life imprisonment
and that the punishment of death should be reserved only for
the rarest of rare cases. Whether a case falls within `the
rarest of rare’ cases has to be examined with reference to
the facts and circumstances of each case. The Court has to
take note of the aggravating as well as the mitigating
circumstances and conclude whether there was something
uncommon about the crime which renders the sentence of
imprisonment for life inadequate and calls for a death
sentence. The Court is also expected to consider whether
the circumstances of the crime is such that there is no
alternative but to impose death sentence after according
maximum weightage to the mitigating circumstances which
speak in favour of the offender. These principles have been
applied by this Court in innumerable cases. The learned
counsel for the appellant has, however, relied on the
judgment of this Court in Raja Ram Yadav & Ors. vs. State
of Bihar [(1996) 9 SCC 287] in support of his contention
that the death sentence has to be commuted into life
imprisonment. In that case the convicts- appellants were
tried for offences punishable under Section 302 IPC and were
sentenced to death by the trial court. There were feuds
between Rajputs and Yadavs in Chhechhani. The incident of
carnage to which the case related had taken place as the
retaliation of Yadavs by killing the Rajputs. The Trial
Court awarded death sentence which was confirmed by the High
Court. The sole eyewitness of the occurrence was 9 year old
boy. While reiterating the aforesaid principles this Court,
on the special facts of the case, held thus : “After
keeping in mind the relevant considerations for awarding the
extreme penalty of death and also on considering the fact
that in the instance case, the sole eyewitness did not tell,
according to PW 1, the names of four of the appellants we
feel that although the murders had been committed in a
pre-meditated and calculated manner with extreme cruelty and
brutality, for which normally sentence of death will be
wholly justified, in the special facts of the case, it will
not be proper to award extreme sentence of death on the
appellants.”
The other case referred to by him is Ronny vs. State
of Maharashtra [(1998) 3 SCC 625]. There three appellants
were convicted under Sections 376 and 302/34 IPC for
committing rape and gruesome murder and were sentenced to
death by the Trial Court. The High Court declined to take a
different view. This Court while considering the question
of sentence observed that as it was not possible to predict
as to who among the three played which part and therefore it
might be that the role of one had been more culpable in
degree than that of the others and vice versa and considered
it appropriate to commute the death sentence to imprisonment
for life. In State of Himachal Pradesh vs. Manohar Singh
Thakur [(1998) 6 SCC 158] the evidence against the convict
was circumstantial evidence. The Trial Court convicted him
of offence punishable under Section 302 but the High Court,
on appeal, recorded acquittal. On the State’s appeal to
this Court the judgment of the High Court was set aside and
the order of conviction passed by the Trial Court was
restored. On the question of sentence it was observed that
though murder by its very nature is shocking, that per se
does not justify death penalty. Further this Court found
that it was not a rarest of rare case. In Allauddin Mian
vs. State of Bihar [AIR 1989 SC 1456] this Court laid down
that unless the nature of the crime and the circumstances of
the offender reveal that the criminal is a menace to the
society and the sentence of life imprisonment would be
altogether inadequate, the Court should ordinarily impose
the lesser punishment and not the extreme punishment of
death which should be reserved for exceptional cases only.
The ratio of these cases is of no help to the appellant. We
may, however, note here that in Shankar vs. State of Tamil
Nadu [(1994) 4 SCC 478], the finding recorded by the High
Court was that the crime indulged was gruesome,
cold-blooded, heinous, atrocious and cruel and the
accused-appellant was proved to be an ardent criminal and
thus a menace to the society. On those findings, the death
sentence was confirmed by this Court as the facts disclosed
that the culpability of the accused-appellant has assumed
extreme depravity and therefore special reasons can be said
to exist to order the death penalty. Now coming to the
facts of this case, the circumstances of the case
unmistakably show that the murder committed was extremely
gruesome, heinous, cold-blooded and cruel. The manner in
which the murder was committed was atrocious and shocking.
After giving blows with a sword to the deceased when he fell
down the appellant amputed his hand, severed his head from
the body carried it through the road to the police station
(majestically as the trial court puts it) by holding it in
one hand and the blood dripping weapon on the other hand.
Does it not depict the extreme depravity of the appellant?
In our view it does. The mitigating circumstances pointed
out by the learned counsel for the appellant are, though the
appellant himself did not state any mitigating circumstances
when inquired about the same by the learned Sessions Judge,
that the appellant is a young man of 33 years and having
three unmarried sisters and aged parents and he was not well
at that time. These circumstances when weighed against the
aggravating circumstances leave us in no doubt that this
case falls within the category of rarest of rare cases. The
Trial Court has correctly applied the principles in awarding
the death sentence and the High Court has committed no error
of law in confirming the same. On these facts, declining to
confirm the death sentence will, in our view, stultify the
course of law and justice. In Govindasami vs. State of
Tamil Nadu (JT (1998) 3 260 ] Mukherjee,J. speaking for the
court observed, “If, inspite thereof, we commute the death
sentence to life imprisonment we will be yielding to
spasmodic sentiment, unregulated benevolence and misplaced
sympathy”.
In these circumstances, we uphold the death sentence.
The appeal is accordingly dismissed.