CASE NO.: Review Petition (civil) 999 of 1994 PETITIONER: Amrutlal Someshwar Joshi RESPONDENT: State of Maharashtra DATE OF JUDGMENT: 01/09/1994 BENCH: M. M Punchhi & K. Jayachandra Reddy JUDGMENT:
JUDGMENT
1994 Supp(3) SCR 23
ORDER
K. Jayachandra Reddy, J.
1. Amrutal Someshwar Joshi, the petitioner in this review petition is the
appellant in Criminal Appeal No. 87/94 which has been dismissed by us on
10.8.94. The appellant has been convicted by the trial court under Section
302 I.P.C. and sentenced to death. The same has been confirmed by the High
Court. We heard Criminal Appeal No. 87/94 filed by him in this Court at
length and ultimately dismissed the same holding that the appellant killed
three persons including a child aged about three years in a brutal and
diabolical manner with a view to commit robbery. We also held that the
motive was henious and the crime committed was a cold-blooded, brutal and
diabolical one and that his case fell within the category of ‘rarest of
rare cases’. Accordingly we confirmed the judgments of the courts below
awarding death sentence to the petitioner herein. Hence the present Review
Petition has been filed seeking review of our judgment dated 10.8.94 in
Criminal Appeal No. 87/94.
2. In the meanwhile a separate petition dated 22.8.94 to review the
judgment in Criminal Appeal No. 87/94 sent by the convicted accused from
jail is received which is not separately numbered. In this review petition
as well as the regular review petition filed through counsel, some points
regarding appreciation of evidence by this Court have been raised. We have
examined these points and we see no merit in any of them. It may be
mentioned here that all the relevant evidence has been considered in detail
and thereafter we reached the conclusion that the said items of evidence
considered by us by themselves are sufficient to bring home the guilt to
the accused and we accordingly confirmed the concurrent findings of the
courts below. There is no need to consider each one of them again in these
review petitions. We any incidentally mention here that in the petition
sent from jail the convicted accused has given his age as 25 years. He,
however, has not raised may point regarding his age stating it should be
taken as a mitigating circumstance. Learned counsel for the petitioner,
however, mainly concentrated on the age of the convicted accused on the
date of commission of the offence in support of his plea that the young age
should be treated as a mitigating circumstances in the matter of awarding
death sentence.
3. Since this is a case of death sentence, we have heard the learned
Counsel for the petitioner as well as learned Counsel for the State.
Learned counsel for the petitioner submitted that the petitioner on the
date of occurrence i.e. 4.8.87 was only 17 years old and therefore having
regard to his age, death sentence ought not to have been awarded. In
support of this submission strong reliance is placed on a judgment of this
Court in Harnam v. State of U.P. : 1976CriLJ1642 which
was followed in Raisul v. State of U.P. : 1977CriLJ1555 .
In Harnam’s case, Justice P.N. Bhagwati, as he then was, having held that
the crime committed by the appellant was a most reprehensible and heinous
disclosing brutality and callousness to human life, yet having noted that
the appellant was of 16 years of age at the time of commission of crime,
however, held that a murderer who is below 18 years of age at the time of
commission of the offence should be considered to be “too young” and that
“he would be entitled to the clemency of penal justice and it would not be
appropriate to impose the extreme penalty of death on him”. In Raisul’s
case, Justice P.N. Bhagwati, who spoke for the Bench in a short judgment
following the judgment in Harnam’s case, again held that the appellant
Raisul was below 18 years of age at the time of commission of the offence
and therefore death sentence should not have been imposed on him.
4. The learned Counsel for the petitioner, in the instant case, submitted
that the age of the accused is one of the mitigating circumstances and that
if the accused is young he shall not be sentenced to death. In this context
the learned Counsel also placed reliance on the judgments of this Court in
Bachan Singh v. State of Punjab etc. etc. : [1980] 2 SCC
20 and Shankar @ Gauri Shankar and Ors. v. State of Tamil Nadu
: 1994CriLJ3071 . It may be mentioned here that in Bachan
Singh’s case, a Constitution Bench of this Court mentioned some aggravating
circumstances warranting the imposition of death sentence and also
mentioned some mitigating circumstances and age of the accused was
mentioned to be one such mitigating circumstance. It was also observed by
this Court that “There are numerous other circumstances justifying the
passing of the lighter sentence as there are countervailing circumstances
of aggravation. We cannot obviously feed into a judicial computer all such
situations, since they are astrological imponderables in an imperfect and
undulating society.” In Machhi Singh and Ors. v. State of Punjab
: [1980] 3 SCC 470 a Bench of three Judges of this Court
having noted the principles laid down in Bachan Singh’s case observed thus:
In order to apply these guidelines inter alia the following questions may
be asked and answered:
(a) Is there something uncommon about the crime which renders sentence of
imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative
but to impose death sentence even after according maximum weightage to the
mitigating circumstances which speak in favour of the offender?
If upon taking an overall global view of all the circumstances in the light
of the aforesaid proposition and taking into account the answers to the
questions posed hereinabove, the circumstances of the case are such that
death sentence is warranted, the court would proceed to do so.
In Allauddin Mian and Ors. v. State of Bihar : 1989CriLJ1466 this Court
after referring to Bachan Singh’s case observed thus :
That is why this Court in Bachan Singh’s case observed that when the
question of choice of sentence is under consideration the Court must not
only look to the crime and the victim but also the circumstances of the
criminal and the Impact of the crime on the community.
5. Neither In Bachan Singh’s case decided by a Constitution Bench nor in
Machhi Singh’s case nor in Allauddin Mian’s case, which are later in point
of time, there is any reference to Harnam’s case or Raisul’s case nor there
is any indication in those three later cases that a person aged about 18
years of age on the date of commission of the offence should under no
circumstances be sentenced to death. We are only referring to this aspect
to show that there is no inflexible rule that a criminal aged about 17 or
18 years should never be sentenced to death irrespective of other
circumstances, however aggravating they may be.
6. Learned counsel for the petitioner, however, submitted that the view
taken in Harnam’s case or Raisul’s case certainly comes to the rescue of
the petitioner who was aged only about 17 years at the time of commission
of the offence. Assuming for argument sake that this Court in these two
cases has laid down that the accused who is under 18 years of age should
not be sentenced to death, still the important question to be considered in
this case is whether the petitioner was aged only 17 years on the date of
commission of the offence as is being claimed. The date of the occurrence
in this case was 4.8.87. The accused-petitioner when examined under Section
313 Cr.P.C. on 26.8.92 gave his aged to be about 22 years. Relying on this,
the learned Counsel submitted that the age of the petitioner on 4.8.87 i.e.
the date of commission of the offence, was only about 17 years and
therefore death sentence should not have been imposed. The trial court
after having convicted the petitioner under Sections 302 and 394 I.P.C.
examined the accused on the next day on the point of sentence after
explaining the sum and substance of the reasoning of its judgment. The
accused stated that justice has not been done to him and that considering
his young age, the court should show him the sympathy. The learned trial
Judge also heard the advocate for the accused on the point of sentence who
stated that when the offence was committed, the accused was of 17 years of
age. The public prosecutor contended that the accused was not 17 years of
age at the time of commission of offence placing reliance on a true copy of
the school leaving certificate of the accused in which his date of birth
was mentioned as 1.5.67. The learned trial Judge held that the accused was
not of 17 years of age relying on the said certificate. It is very
pertinent to note that nobody questioned the authenticity of the said
certificate. The learned Trial Judge after elaborate discussion on the
question of sentence and also on the question of age ultimately held that
this is a case where death sentence alone would meet the ends of justice.
Before the High Court, on question of sentence, the learned Counsel for
accused urged that the accused was a young man of about 20 years of age.
The High Court, however, having taken all the circumstances and findings of
the court below into consideration, by its judgment dated 26.10.93
dismissed the appeal and confirmed the death sentence. We are unable to
understand as to how the petitioner who gave his age as 22 years on 26.8.92
when examined under Section 313 Cr. P.C. could be of 20 years of age in the
year 1993 when the High Court heard the appeal. Likewise in the special
leave petition filed in this Court on 27.1.94 the age of the petitioner is
given as 20 years. Strangely in the review petition dated 22.8.94 sent by
the convicted accused from jail, which is also attested by the Jail
Superintendent, he has given his age as 25 years. If one goes by this age,
then he would have almost completed 18 years on the date of commission of
the offence. We are only pointing out these aspects only to show that the
age as such given by the accused or by his advocates at various stages
differently is of no consequence and cannot be given any weight. Even
before the High Court, the authenticity of the date of birth of the
appellant as given in the school leaving certificate has not been
questioned. Consequently the statement of the accused regarding his age
cannot be the criteria to hold that he was below 18 years of age on the
date of commission of the offence. Learned counsel for the petitioner,
however, submitted that the accused has not been questioned separately with
reference to the date of birth given in the school leaving certificate and
therefore that cannot be acted upon. We see no force in this submission. It
is only after the conclusion of the trial and after rendering the judgment,
the accused as per the provisions of Cr.P.C. was questioned in the matter
of awarding of sentence. When there was a vague statement regarding age,
the prosecution produced the school leaving certificate and the same was
placed on record and the authenticity of the same has never been in doubt.
Learned counsel, however, further submitted that the accused can be
medically examined at this stage. Under the above circumstances, we do not
think that this exercise has to be undertaken by this Court at this stage
when the authenticity of the school leaving certificate has never been in
doubt. The date of birth given in the said certificate is 1.5.67 and the
petitioner was aged more than 20 years on the date of commission of the
offence. Therefore the petitioner’s case does not come within the principle
laid down in Harnam’s case which has been followed in Raisul’s case.
7. Having given our earnest consideration to the questions raised, we see
absolutely no grounds to reduce the sentence to imprisonment for life on
the grounds urged by the learned Counsel. Accordingly the Review Petitions
are dismissed.