JUDGMENT
I.A. Ansari, J.
1. The death reference and criminal appeal have arisen out of the judgment and order, dated 7-6-2005, passed by the Sessions Judge, Morigaon, in Sessions Case No. 31/2005, whereby the accused Mithu Kalita alias Mitu Kalita stands convicted under Section 302, I.P.C. and sentenced to death. The reference for confirmation of the sentence of death has been made under Section 306, Cr. P.C. and the appeal has been preferred by the accused against his conviction and also the sentence of death passed against him.
2. In the present case, a minor girl, namely, X, aged about 5 years 1 month, who had just started going to school, became allegedly victim of an indescribably nerve-shattering and beastly incident of an attempted rape and, then, murder at the hands of the accused, the victim, X, being daughter of PW 12 and CW 1 and the incident having taken place in the evening of 14th of March, 2005.
3. The case of the prosecution, as unfolded at the trial, may, in brief, be set out as follows:
(i) On the day of the occurrence, the victim came with her parents to the house of one of their relatives, Tilak Kalita, where the
marriage of Tilak Kalita’s daughter was to be solemnized. While the victim was in the company of her father at the marriage house, she wished to go to her mother. The victim’s father let the victim go to her mother, who was inside the house, where the marriage ceremony was being solemnized. The mother did not, however, come to know that the victim had left her father and was looking for her mother. The victim’s mother reached her home earlier than her husband and expected the victim, X, to return home with her father, but when the victim’s father returned home from the marriage house without X, her parents realized that X had remained at the marriage house. A person was accordingly sent to the bridegroom’s house; but he came back and informed the parents of X that X had not been found at the marriage house. A search for X was, then, started by her parents, her relatives and also by her co-villagers.
(ii) On the day of the occurrence, Bhaskar alias Prasanta Kalita, a student of Class-V, who had also come to the said marriage ceremony at the house of Tilok Kalita, was taken away by the accused. On coming to know that the accused, who did not enjoy good reputation, had taken away Bhaskar to his house, Bhaskar’s father apprehending that the accused might have taken away Bhaskar for committing unnatural sexual intercourse, went to the house of the accused. The accused at that point of time, was trying to take Bhaskar to a bamboo grove, located at the backyard of the said house. On reaching the house of the accused and on finding the door of the house closed from inside, Bhaskar’s father threatened to break open the door, whereupon the accused reluctantly opened the door of the house and Bhaskar was brought back by his father from the house of the accused.
(iii) When the search for X was in progress on the very night of the occurrence, Ranu Kalita, mother of Bhaskar, informed X’s mother (CW. 1) that Mithu Kalita (i.e., the present accused) might be behind the disappearance of X, for, a short while ago, her son, Bhaskar alias Prasanta, had been taken away by accused-Mithu Kalita to his house and kept locked there, but Bhaskar’s father had, somehow, managed to bring Bhaskar back home from the house of the accused. X’s mother, her other relatives and also their co-villagers, then, came to the house of the accused and, on inquiry made by them, Mithu Kalita’s mother told them that Mithu Kalita was not present at home. However, the villagers, who had so reached the house of accused-Mithu Kalita, demanded to look for Mithu inside the house. When the altercation between the mother of accused-Mithu Kalita and other co-villagers was on, someone pointed out to accused-Mithu Kalita, who was seen running away from the back door of his house. While the accused was so running away, he was chased by, amongst others, Kulu Kalita (P.W. 1), an uncle of the victim, X, and many others. They, eventually, found the accused lying in a cave-like place. When the accused was asked as to where X was, the accused expressed his ignorance; but on being further questioned, the accused told those, who had so apprehended him and surrounded him, that he had sold X to someone from Amchoi. When the people refused to believe the said statement of the accused, the accused told them that he would tell everything in the presence of the police. The people, who had so assembled, then, started proceeding towards Morigaon Police Station along with the accused. In the meanwhile, two co-villagers of the victim, X, namely, Sang Kalita and Pradip Kalita came to the said police station and orally informed the police that a little while ago, Mithu Kalita (i.e., the present accused) had taken away a five year and one month old daughter of Padmeswar Kalita and hid her somewhere and that on being questioned, Mithu Kalita had informed the people that he had sold X to someone from Amchoi. Based on this information, GD Entry No. 410, dated 15-3-2005, at 1.00 a.m., was made and Sub-Inspector IK Kabir (P.W. 15), who was on patrol duty at night, was informed, on VHF, about the incident and was also asked to do the needful. Acting upon the information so received, P.W. 15 proceeded towards the police station; but on his way, he came across a group of people, who were taking the accused to the police station. P.W. 15 stopped the said group of people, took the accused into his custody and interrogated the accused. Acting upon what the accused had informed him, the said police officer (P.W. 15) put the accused into his vehicle and also took along with him two more persons out of the said group of people, these two persons being Arun Kalita (P.W. 2) and Bhadra Kanta Kalita (P.W. 5). The police, on being led by the accused, came, in their vehicle, along with the said two co-villagers, Arun and Bhadra, to Bakigaon and, on reaching the said village, the accused led them to the pond of one Bhupen Bora and in the focus of the torchlight, the accused showed them a spot in the said pond indicating as to where he had left X’s dead body, whereupon P.W. 2(Arun Kalita) and P.W. 5 (Bhadra Kalita) went down to the pond and found X’s dead body, in naked condition, with her head partially buried under the mud and the body floating in the water of the pond. In the meanwhile, a huge number of villagers had arrived there and attempted to snatch away the accused with the object of assaulting him. In order to save the life of the accused, the said police officer, with the help of some CRPF personnel, put back the accused into the vehicle and brought him to the police station leaving behind the dead body of the said victim. After the police had left, P.W. 2 and P.W. 5 took out the said dead body and put the same on the bank of the pond. The deadbody bore bite marks on the victim’s cheeks, face and stomach. Some sticky substance on the victim’s vagina with bleeding therefrom was also noticed. Before the police could arrive at the said place of recovery, the victim’s relatives and her co-villagers brought the victim’s dead body to the said police station. The police accordingly held inquest over the said dead body. On 15-3-2005, at about 10.45 a.m., a written Ejahar was lodged by one Kulu Kalita (P.W. 1), an uncle of the victim, X, and treating this Ejahar as the First Information Report, Morigaon Police Station Case No. 32 of 2005 was formally registered under Sections 376/302/201, I.P.C. against the accused. During the investigation, the accused made judicial confession. In his confessional statement, the accused confessed to the effect that he had taken away X from the wedding house by telling X that he would take her to her mother, he took X to a bamboo grove near the wedding house and tried to have sexual intercourse with her, but as he did not succeed in penetrating, he masturbated and as X had loudly cried out saying that she was experiencing pain, he gagged her mouth and, then, by telling her that he would be taking her to her home, he, carrying X on his lap, went to a water tank near a culvert and while so taking X into the water, he kept constantly pressing her neck with his right hand and by putting her into the water, he pushed her head under the water and lifted her legs up and making sure that X’s head remained under water, he continued to hold X in the said position until the time X stopped struggling and became still. The accused also con fessed to the effect that after X’s death, he left her dead body there and went to his home and when the villagers came to his house, he tried to run away, but the people caught him, when he fell down in a canal, and,on being asked by the people, he told them that he had sold X to someone from Amchoi, but the people did not believe his words and started taking him towards the police station and on the way, they came across a group of CRPF personnel and on being asked by the police, he told the police about what had happened and led them to the place, where X’s dead body was lying. The post-mortem report revealed hat the victim’s person was sexually violated before making her suffocate to death. On completion of the investigation, the police laid charge-sheet against the accused under Sections 376/302/201, I.P.C.
4. To the charges framed, at the trial, under Sections 364, 376, 302 and 201, I.P.C, the accused pleaded not guilty. The trial accordingly proceeded. In support of their case, the prosecution examined as many as 15 witnesses. The learned trial Court also examined three persons as Court witnesses including the said victim’s mother (C.W. 1). The accused was, then, examined under Section 313, Cr. P.C. and in his examination aforementioned, the accused admitted that he had taken away Bhaskar to his house and that Bhaskar’s father came to the house of the accused and got Bhaskar freed from there and, thereafter, he (accused) had enticed and taken away X, he (accused) tried to commit sexual intercourse with her, but when X cried out of pain, he closed her mouth with his hands and took her to the pond and, by putting her head into the pond, made her suffocate to death. The accused also admitted, in his statement recorded under Section 313, Cr. P.C, that he had shown the place, where the occurrence had taken place and the dead body of the victim girl was accordingly recovered. No evidence was, however, adduced by the defence.
5. On conclusion of the trial, the learned trial Court, on finding the accused guilty of the offences charged with, convicted him accordingly and sentenced him to death as mentioned hereinabove.
6. We have heard Mr. J. M. Choudhury, learned senior counsel for the accused-appellant, and Mr. P. Bora, learned Public Prosecutor, Assam, appearing on behalf of the respondents.
7. At the time of hearing of the appeal, Mr. J. M. Choudhary, learned senior counsel, appearing for the accused, has submitted that though, in the face of the materials on record, findings of guilt reached against the accused may, perhaps, not be interfered with, the sentence of death passed against the accused-appellant is not sustainable in the face of the facts and attending circumstances of the case at hand and the law relevant thereto. In support of his submission that the learned trial Court ought not to have imposed the punishment of death on the accused, Mr. J. M. Choudhury placed reliance on Surendra Pal Shivbalakpal v. State of Gujarat .
8. Resisting the submissions made on behalf of the accused and seeking confirmation of the sentence of death, the learned Public Prosecutor has submitted that the present one is a fit case for awarding the sentence of death to the accused and in the face of the facts of the present case, the accused has been correctly sentenced to death. Support for this submission is sought to be derived by the learned Public Prosecutor from the case of State of U.P. v. Satish .
9. Though, as already indicated herein-above, the findings of guilt reached against the accused are not seriously disputed at the time of hearing of the appeal, we are of the view that in all fairness, a dispassionate analysis of the evidence on record is necessary for the purpose of not only determining the guilt or otherwise of the accused, but also to assess and appreciate the evidence on record in order to determine the correctness, propriety, legality and necessity of the sentence of death passed against the accused.
10. With the above object in mind, when we turn to the facts of the present case, what attracts our eyes, most prominently, is that the accused has virtually left, without effective cross-examination, the material witnesses produced by the prosecution. This apart, the accused did not only refrain from putting to the Court witnesses any question on vital aspects of their evidence, but that he, in fact, admitted, in substance, in his examination under Section 313, Cr. P.C., incriminating circumstances, which appeared against him from the evidence on record. We may also point out here that the accused, during the course of recording of his statement under Section 313, Cr. P.C., confessed to the same effect as he had done in his judicial confession.
11. Before proceeding any further, therefore, what is important to bear in mind is that though a statement, recorded under Section 313, Cr. P.C. is not a statement made on oath and is not, strictly speaking evidence, yet the statement, so made, can, indeed, be taken into consideration at the trial against the accused for the purpose of arriving at the guilt or otherwise of the accused. In no uncertain words made the Apex Court clear this position of law, when it observed and held in State of Maharashtra v. Sukhdev Singh as follows:
51. That brings us to the question whether such a statement recorded under Section 313 of the Code can constitute the sole basis for conviction. Since no oath is administered to the accused, the statements made by the accused will not be evidence stricto sensu. That is why Sub-section (3) says that the accused shall not render himself liable to punishment if he gives false answer. Then comes Sub-section (4) which reads:
313. (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
Thus the answers given by the accused in response to his examination under Section 313 can be taken into consideration in such inquiry or trial. This much is clear on a plain reading of the above sub-section. Therefore, though not strictly evidence, Sub-section (4) permits that it may be taken into consideration in the said inquiry or trial. See State of Maharashtra v. R. B. Chowdhari . This Court in the case of Hate Singh Bhagat Singh v. State of M.B. held that an answer given by an accused under Section 313 examination can be used for proving his guilt as much as the evidence given by a prosecution witness. In Narain Singh v. State of Punjab this Court held that if the accused confesses to the commission of the offence with which he is charged the Court may, relying upon that confession, proceed to convict him. To state the exact language in which the three-Judge Bench answered the question it would be advantageous to reproduce the relevant observations at page 684-695:
Under Section 342 of the Code of Criminal Procedure by the first sub-section, insofar as it is material, the Court may at any stage of the enquiry or trial and after the witnesses for the prosecution have been examined and before the accused is called upon for his defence shall put questions to the accused person for the purpose of enabling him to explain any circumstance appearing in the evidence against him. Explanation under Section 342 is primarily to be directed to those matters on which evidence has been led for the prosecution to ascertain from the accused his version or explanation — if any, of the incident which forms the subject-matter of the charge and his defence. By Sub-section (3), the answers given by the accused may be taken into consideration’ at the enquiry or the trial. If the accused person in his examination under Section 342 confesses to the commission of the offence charged against him the Court may, relying upon that confession, proceed to convict him, but if he does not confess and explaining circumstance appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety.
Sub-section (1) of Section 313 corresponds to Sub-section (1) of Section 342 of the old Code except that it now stands bifurcated in two parts with the proviso added thereto clarifying that in summons case where the presence of the accused is dispensed with his examination under Clause (b) may also be dispensed with. Sub-section (2) of Section 313 reproduces the old Sub-section (4) and the present Sub-section (3) corresponds to the old Sub-section (2) except for the change necessitated on account of the abolition of the jury system. The present Sub-section (4) with which we are concerned is a verbatim reproduction of the old Sub-section (3). Therefore the aforestated observations apply with equal force.
12. From what has been observed and laid down in Sukhdev Singh (supra), it also becomes transparent that if an accused person, in his examination under Section 313, Cr. P.C., confesses to the commission of the offence(s) charged with, the Court may, relying upon such confession, proceed to convict the accused and that it is only if the accused does not confess and/or chooses to explain the circumstances appearing in the evidence against him or sets up his own version of the occurrence claiming to the effect that he had committed no offence, the statement of the accused, made during the course of examination under Section 313, Cr. P.C., can be considered in its entirety along with other pieces of evidence on record. To put it differently, there is no impediment in law for a Court to found conviction of an accused on his confession made by him during his examination under Section 313, Cr. P.C.
13. Before, however, we enter into the scrutiny of the evidence on record to determine the guilt or otherwise of the accused, what is also pertinent to note is that the evidence of the Investigating Officer (P.W. 14) coupled with what is recorded in Ext. 1, which is the relevant General Diary, shows that on 15-3-2005, at about 1.00 a.m., two of the victim X’s co-villagers, namely, Sang Kalita and Pradip Kalita came to Morigaon Police Station and orally informed the police to the effect that a little while ago, one Mithu Kalita (i.e., the present accused) had taken away a 5 years 1 month old daughter of Padmeswar Kalita and hid her somewhere and that on being questioned in this regard, accused-Mithu Kalita had said that he had sold away the girl to someone from Amchoi. The evidence, so given, by the Investigation Officer (P.W. 14), coupled with the entries made in the said General Diary, clearly shows that based on this information, GD Entry No. 410, dated 15 3-2005, at 1.00 a.m. was made and Sub-Inspector IK Kabir (P.W. 15), who was on patrol duty at night, was accordingly informed, on VHF, by the said police station about the said incident.
14. Lending support to what P.W. 14 has deposed, P.W. 15’s evidence shows that acting upon the information, so received by him, as indicated hereinbefore, when P.W. 15 was proceeding towards the police station, he came across a group of people, who were bringing the accused to the police station, P.W. 15 stopped the said group of people, took into his custody the accused and interrogated the accused and it was, at this stage, that the accused allegedly admitted to have thrown X’s dead body into the pond of Bhupen Bora and that it was after the dead body of X had already been recovered, on being led by the accused, that P.W. 1 (Kulu Kalita), an uncle of the victim, X, lodged a written Ejahar (Ext-1), which was formally treated as the First Information Report of the case.
15. Whether the evidence given by P.W. 15 as to what the accused had told him is admissible at all in evidence and/or the extent to which the information received by P.W. 15 from the accused is admissible in evidence are the two aspects of this case, which we would discuss a little later; but what is of immense importance to note is that though the Ejahar (Ext. 1) has been treated as the First Information Report of the case, it is abundantly clear from the sequence of the events discussed hereinbefore that this Ejahar was lodged subsequent to the investigation, which had already commenced on the basis of the oral information received as early as on 15-3-2005, at 1.00 a.m., at Morigaon Police Station, from the said two co-villagers of the victim, namely, Sang Kalita and Pradip Kalita. The contents of the said Ejahar were, therefore, nothing, but a statement made by P.W. 1 to the police during the investigation of the case. In reality and in law, therefore, it is the GD Entry No. 410, dated 15-3-2005, aforementioned, i.e., the Ext. 10(2), which is the First Information Report of this case.
16. Keeping in view the above noted prominent features of the present case, when we turn to the evidence of P.W. 8 (Bhaskar), we notice that this young boy, aged about 10 years and a student of Class-V, has deposed that Bulu was the daughter of his uncle, he (i.e., the accused) on the night of Bulu’s marriage, went to the marriage ceremony and while he was standing near the place, where the marriage ceremony was taking place, the accused asked him to go with him to the house of the accused to bring rice, but when P.W. 8 declined to go, the accused came to him and took him inside a room of the house of the accused and closed the door of the house from inside. It is in the evidence of P.W. 8 that the accused caught hold of one of his hands and asked him to go to the midst of bamboo grove, but P.W. 8 refused to go and caught hold of the handle of the door of the house trying not to move. It is also in the evidence of P.W. 8 that when P.W. 8 so resisted the move of the accused, the accused dragged P.W. 8 towards him and at that point of time, P.W. 8 put his nails on the accused, which hurt the accused, and, in the meanwhile, P.W. 8’s father, Bhaiti Kalita (P.W. 6), arrived at the said house and demanded that the door be opened. What further transpires from the evidence of P.W. 8 is that the accused, then, asked P.W. 8 to run away from the backdoor of the house, but as P.W. 8 refused to do so and as, in the meanwhile, P.W. 8’s father, once again, demanded that the door be opened or else he would break open the door, the accused opened the door and he (P.W. 8) went out of the house of the accused. It is also in the evidence of P.W. 8 that it was on this night that X was killed.
17. It may be noted that the defence declined to cross-examine P.W. 8. The evidence of P.W. 8 has, thus, remained wholly unshaken. This apart, even when the evidence given by the P.W. 8 was put to the accused, during his examination under Section 313, Cr. P.C., the accused admitted that he had, indeed, taken away P.W. 8 to his house. Moreover, the evidence given by P.W. 8 has been supported in all material aspects by his father (P.W. 6) and apart from the fact that P.W. 6 too was not cross-examined by the defence, the accused did not even dispute the evidence given by P.W. 6, while the accused was examined under Section 313, Cr. P.C., in this regard.
18. Because of what we have pointed out above, we see no reason to disbelieve the evidence of P.W. 6 and P.W. 8 and their evidence clearly shows that the accused had taken away P.W. 8 to his house from the said marriage house, though P.W. 8 was unwilling to leave the marriage house along with the accused and that it was, eventually, on arrival of P.W. 6 at the house of the accused, that P.W. 8 was set free. What also cannot be ignored is that the learned trial Court has recorded that the child witness, namely, P.W. 8, has stated before the Court that he was afraid of the accused and he also stated that the accused would kill him. This demonstrates the level of fear, which the accused had generated in the mind of an innocent child, such as, P.W. 8, on the night of the alleged occurrence.
19. In the backdrop of the above evidence on record, we, now, turn to the evidence of P.Ws. 1, 2. 3, 4, 5, 6 and C.W. 1.
20. From the evidence of C.W. 1 (i.e., the mother of the victim girl), what transpires is that on the day of the occurrence, a marriage ceremony, at the house of the paternal uncle of the accused, was held, the house of the accused being located contiguous to the house, where the marriage was solemnized. What also transpires from the evidence of C.W. 1 is that in the evening on that day, C.W. l’s daughter, X, aged about 5 years 1 month, went along with her parents and also her grand-mother to the house, where the marriage was being solemnized, and when C.W. 1 returned home, her husband and mother-in-law were still at the house, where the marriage was being solemnized; but when her husband and mother-in-law returned home, they all realised that X had not come back home and they all, then, went to the house, where the marriage was solemnized, looking for X and as X was not found there, a man was sent to the house of the bridegroom, but when even at the house of the bridegroom, which is located at a little distance away from the house of the bride, X was not found, she (C.W. 1), accompanied by Ranu (mother of P.W. 8), went to the house of the bridegroom. The fact that X came to the house of the bride and did not return home is supported by the evidence of P. Ws. 1, 2, 3, 4 and 5.
21. What further transpires from the evidence of C.W. 1 is that when she was looking for X along with Ranu, i.e., the mother of P.W. 8 (Bhaskar), it was, in fact, Ranu, who told C.W. 1 that Mithu (i.e., the accused) had, a short while ago, taken away her son, Bhaskar, and she, therefore, suspected that Mithu might have taken away C.W. l’s daughter too. We may, at this stage, pause and, once again, refer to the evidence of P.W. 6 (i.e., the father of P.W. 8), for, this witness’s evidence indicates that when his son (P.W. 8) had been taken away by the accused, he suspected that the accused might have taken away P.W. 8 for committing unnatural sexual intercourse and it was for this reason that he had gone to the house of the accused and brought his son home and while he (P.W. 6) was asleep at his house at night, his wife, Ranu, informed him that X was missing from the marriage house and it was at this point of time that P.W. 6 informed his wife, Ranu, about taking away of P.W. 8 by the accused and further told his wife, Ranu, that they should look of Mithu and accordingly, P.W. 6, his wife, Ranu, and others went to the house of the accused looking for X. From the evidence discussed hereinbefore, it is clear as to why P.W. 6 had expressed his suspicion before his wife, Ranu, that the accused might be the one behind the disappearance of X.
22. Bearing in mind the above aspects of the evidence on record, when we proceed further with the evidence of P.Ws. 3, 4, 6 and C.W. 1, we notice that according to their evidence, when they came to the house of the accused looking for the accused, the mother of the accused showed two rooms to them, but they found another room of the said house under lock and key and they, therefore, demanded that the locked room be opened or else they would break open the locked door and that it was at that point of time that the accused was seen by some person running away from the backdoor of the house. While the accused was so running away, he was, according to the evidence of P.W. 1, chased by P.W. 1 and others and the accused was, eventually, caught, while he (the accused) was lying in a cave-like place and questioned about X and, on being so questioned by the people, who had assembled there, the accused, according to the evidence of P.Ws. 2,3, 5 and 6, told those, who had gathered there, that he had sold the girl to a person from Amchoi. On being further questioned, the accused replied that he would disclose everything before the police. It is in the evidence of P.Ws. 1, 2, 3, 5 and 6 that when the villagers were taking the accused to the police station, they happened to come across a police patrol party, the police took the accused into their custody and questioned him about the occurrence, the accused admitted that he had killed X near the pond of Bhupen Bora at Gosainpukuri and the accused agreed to show the place of occurrence. Whether the evidence given by these witnesses to the effect as to what the accused had told the police are admissible in evidence and, if so, the extent to which such evidence is admissible is a question, which we would deal with at a latter stage. For the present moment, however, what is necessary to note is that the evidence given by P.Ws. 1, 2, 3, 5, 6 and C.W. 1 clearly reveal the reason as to why a search for the accused was started, how the accused was apprehended and what the accused had, initially, told them and as to where they met the police and where the police questioned them. The evidence given by these witnesses to the effect that they met the police on their way to the police station, that the police questioned the accused and the accused agreed to show the place of occurrence is supported by the evidence of P.W. 14 (Investigating Officer) and P.W. 15 (Sub-Inspector, IK Kabir), for, the evidence of these two police officers reveal, as already indicated hereinabove, that on receiving oral information, at Morigaon Police Station, from two of the co-villagers of the victim, P.W. 15, who was on patrol duty at night, was informed, on VHF, by the said police station about the information, which they had received, and, on receiving the information, when P.W. 15 was proceeding towards the police station, he came across a group of people, who were taking the accused to the police station.
23. When we proceed further with the evidence on record, particularly, the evidence of P.W. 15, we notice that on finding the accused with the said group of people, P.W. 15 took the accused into his custody and interrogated the accused and, during the course of this interrogation, the accused voluntarily admitted to him that he had killed the girl and thrown away her dead body into the pond of Bhupen Bora and he was willing to show the place, where the dead body of the victim girl was kept hidden. The evidence given by P.W. 15 and other prosecution witnesses, such as, P.Ws. 1, 2, 3, 4, 5 and 6 to the effect that the accused admitted before P.W. 15 that he had killed the girl was clearly inadmissible in law, for, no fact was, admittedly, discovered on the basis of the confession so made by the accused to P.W. 15. As regards the evidence given by P.W. 15 that the accused told him that he had thrown the dead body of X into the pond of Bhupen Bora and that he was willing to show the place, where the dead body of the victim girl was kept hidden, what cannot be ignored is that the statement, which P.W. 15 attributes to have been so made to him by the accused, is not supported completely by the evidence of P.Ws. 1, 2, 3, 5 and 6 inasmuch as P.Ws. 1, 2, 3, 5 and 6 have merely deposed that the accused offered to show the place of occurrence. The evidence of P.Ws. 1, 2, 3, 5 and 6 give no indication as to what exactly the accused had told to P.W. 15. Situated thus, when it is not clear as to what exactly the accused had told the police, we are of the view that by applying Section 27 of the Evidence Act, it would be too hazardous to rely on the evidence given by P.W. 15 as to what the accused had told him. What has, however, surfaced unscathed from the evidence of P.W. 15 is that from the place, where P.W. 15 had taken the accused into his custody, he (P.W. 15) took also two persons, from amongst the group of people present on the road, into his vehicle and proceeded with them and also with the accused, in the said vehicle, to Bakari-gaon. It is in the evidence of P.W. 15 that as indicated by the accused, he directed the vehicle to be stopped near a pond and after asking the accused about the spot, he focused his torch-light and in the focus of the torch-light, the accused showed a particular place in the pond, whereupon Arun (P.W. 2) and Bhadra (P.W. 5) got down to the pond and it was Arun, who found the dead body of the victim and raised hullah, but since, in the meanwhile, a huge crowd had gathered at the said place and people attempted to snatch away the accused, he (P.W. 15), with the help of the CRPF personnel, put the accused into his vehicle and came back to the police station leaving the dead body behind him. P.W. 15 has further deposed that after keeping the accused at the police station, when he was coming out of the police station to go back to the said pond, a large number of people brought the dead body of the victim girl to the police station. The evidence of P.W. 15 had remained without being seriously disputed by the defence. Moreover, the accused admitted, in his exr animation under Section 313, Cr. P.C., that he had shown the place to P.W. 15 and that at the time of recovery of the dead body, polfce had saved him from the hands of the public.
24. Close on the heels of the above evidence of P.W. 15, P.W. 2 (Arun) has deposed that the police took him (P.W. 2) and Bhupen Bora (P.W. 5) along with the accused in the police vehicle and left others on the road. It is in the evidence of P.W. 2 that the police made the accused sit in the front seat of the vehicle to show the path and as indicated by the accused, the police stopped the vehicle near Gosaipukuri (which is the name of a pond) and as soon as the vehicle was stopped, he (P.W. 2) loudly called the name of X repeatedly, but received no response, whereupon he (P.W. 2) asked the accused to show the place, where he had left X, the accused, then, pointed to the middle point of the pond and the police accordingly focused the torch-light towards the place shown by the accused, he (P.W. 2) went down to the pond, which had knee-deep water, and when he arrived at the said spot, he found X’s head was inside the mud and her body floating in the water and, on so finding the said dead; body, he (P.W. 2) raised hullah saying that the girl had been killed. It is also in the evidence of P.W. 2 that other people also came to the said place and he (P.W. 2) asked P.W. 5 to bring out the dead body. It is in the evidence of P.W. 2 that when he (P.W. 2) along with others went towards police vehicle trying to snatch away the accused from the police, the police took away the accused to the police station. The evidence, so given by P.W. 2, has been corroborated in material aspects by P.W. 5 inasmuch as P.W. 5 has also deposed that he along with P.W. 2 went down to the, pond, which had knee-deep water, and fo|und X’s dead body under the mud, he (P.W.5) carried the victim’s dead body, which was completely naked, to the bank of the pond and laid the dead body there. The evidence given by P.Ws. 2, 5 and 15 to the effect that the accused had pointed out a place in the said pond and on the basis of what the accused had indicated, P.W. 2 and P.W. 5 went down to the pond and that the victim’s, dead body was found with its head partially buried underneath the mud and her dead body floating in the water of the pond is admissible in evidence. This apart, since the evidence, so given, has not been disputed by the defence, we see no reason to disbelieve the evidence given by P.Ws. 2.5. and 15 as to when, where, in what manner and in what condition, the victim’s dead body was recovered.
25. Coupled with the above, the undisputed evidence of P.Ws. 2 and 5 is that the said dead body was completely naked and there was bite marks on both her cheeks, stomach and face and that they noticed some bleeding from the vagina and that some kind of sticky substance was also noticed by them on the vagina of the said victim and that P.W. 5, accompanied by others, came to the police station carrying the said dead body.
26. A close scrutiny of the evidence of P.Ws. 1, 2, 3, 5 and 15 shows that the material aspects of their evidence have not been disputed by the defence. The evidence of these witnesses, therefore, remained unshaken in material particulars. From the evidence of these witnesses, what emerges is that the accused was brought by the police to Bakarigaon and, on being led by the accused, the police brought their vehicle to Bhupen Bora’s pond and, in the focus of the torch-light, the accused pointed out a place, which was almost in the middle of the pond, P.Ws, 2 and 5 went down to the pond, it was P.W. 2, who, first, found the said dead body with its head buried under the mud and body floating in the water, P.W. 5 took out the said dead body and laid the same at the bank of the pond, the victim’s body was naked with marks of teeth bite on her cheeks, face and stomach, some bleeding was noticed from the vagina and some kind of sticky substance was present at the vagina. What also emerges from the evidence of these witnesses is that since the people gathered and demanded that the accused be handed over to them, P.W. 15, apprehending serious threat to the life of the accused, put the accused into his vehicle and brought him to the police station. Before, however, P.W. 15 could go back to the pond, P.W. 15, accompanied by other co-villagers,’ brought the victim’s dead body to the said police station, whereupon inquest was held over the said dead body.
27. What, thus, surfaces unscathed from the above discussion of the evidence on record, as a whole, is that on the fateful evening of 14th of March, 2005, there was a marriage ceremony at the house of the paternal uncle of the accused, the said marriage house being adjacent to the; house of the accused’, the accused took away, from the said place of marriage, P.W. 8, a young boy, aged about 10 years and a student of Class-V, to the house of the accused and locked him inside a room and after closing the door of his house, the accused caught hold of one of the hands of the P.W. 8 and asked him to go to the midst of the bamboo grove and when P.W. 8 caught hold of the handle of the door and refused to go, the accused dragged P.W. 8 towards him and at that point of time, P.W. 8 put his nail on the hand of the accused, which caused hurt to the accused, and, in the meanwhile, apprehending that the accused might by to have unnatural sexual intercourse with P.W. 8, P.W. 8’s father (i.e., P.W. 6) came to the house of the accused and demanded that the door be opened and even at this stage, the accused asked P.W. 8 to run away from the back door of the house, but P.W. 8 refused to leave and when P.W. 6 threatened to break open the door, the accused, left with no option, opened the door of the house and P.W. 8 got freed.
28. What also surfaces unscathed from the evidence on record is that from the said marriage house, when X’s parents and her grand-mother returned home on the night of the said marriage, they realised that X had not returned home from the marriage house, a search for X was, therefore, started. The search carried X’s parents to the house of the bride, but X was not found there and when the search for X was in progress, P.W. 8’s father (i.e., P.W. 6) told his wife, Ranu, that the accused might be the one, who had taken away X, for, the accused had, a short while ago, taken away P.W. 8 to his house. On coming to know what the accused had done to P.W. 8, when X’s parents along with some others including P.W. 6 came to the house of the accused and enquired about the accused, the mother of the accused told them that the accused was not at home, but when the people, who had so gathered at the house of the accused, saw a room closed and demanded to look into the complete house, an altercation ensued between mother of the accused and the people, who had so gathered there, and at that point of time, some people saw the accused running away and when they started shouting, some of the people present there including P.W. 1 chased the accused and the accused was, eventually, caught by, amongst others, P.W. 1, while the accused was hiding in a cave-like place. On being questioned by the people, who had so caught hold of the accused, the accused, initially, expressed his ignorance about X’s disappearance, but when P.W. 4, in order to elicit the truth from the accused, falsely charged the accused that he had been seen taking away X, the accused tried to bluff them all by saying that he had sold X to someone from Amchoi. However, when the people refused to believe what the accused had told, the accused said that he would disclose the entire truth to the police. The group of people, who had caught hold of the accused, then, proceeded towards Morigaon Police Station; but, in the meanwhile, as indicated hereinabove, on receiving oral information regarding the disappearance of X, P.W. 15 was informed, on VHF, by the said police station about the disappearance of X and when P.W. 15, who was on patrol duty, was proceeding towards police station, he found a large number of people bringing the accused to the police station, whereupon P.W. 15 took the accused into his custody and interrogated the accused. On being so interrogated, the accused made some statement to the P.W. 15. What this statement actually was is not exactly discernible from the evidence on record; but what emerges clearly from the evidence on record is that after making enquiries from the accused about X, P.W. 15 put the accused and also P.Ws. 2 an 5 into his vehicle and brought them, on being led by the accused, to Bakarigaon village, whereupon the accused led them to Bhupen Bora’s pond, P.W. 15 stopped the vehicle near the said pond, the accused pointed out, in the focus of the torch-light, a place, which was almost at the middle of the said pond, P.Ws. 2 and 5 accordingly went down to the pond, which had knee-deep water, and it was P.W. 2, who found X’s dead body with its head buried under the mud and her dead body floating in the water. On finding the dead body, P.W. 2 cried out that the girl had been killed. In the meanwhile, people had gathered near the police party and demanded that the accused be handed over to them. In order to save the life of the accused, P.W. 15, with the help of the CRPF personnel, put the accused into the vehicle and brought him to the police station. However, before the po-lice could arrive back at the said pond, P.Ws. 2 and 5 brought out the dead body of X and laid her on the bank of the pond, they noticed bite marks on both her cheeks, face and stomach, they also noticed some sticky substance with slight bleeding from the victim’s vagina and, then, P.W. 5, accompanied by the victim’s relatives and co-villagers, brought the said dead body to the said police station, whereupon inquest was held.
29. Lending support to the evidence of P.Ws. 2 and 5 as regard the condition in which they had found the dead body, P.W. 9, who had held autopsy on the said dead body on 15-3-2005, has deposed that on conducting post-mortem examination over the said dead body, he found as follows:
External appearance:
Dead body of about 5 to 6 years old girl, rigor mortis present with mud over the chest, teeth bite mark present in the middle left cheek, circular teeth bite mark over chin, size 1 and half inch x half inch. Froth coming out from both nostrils. Ecchymosed over the upper part of side of neck size 1 and half inch x half inch. Teeth bite mark elliptical, 4 Nos., of teeth mark visible at lower part of left side of chest. Abrasion over the back of right scapular region, size 2″ x 1″, Cranium and sinal canal : Found to be healthy.
Thorax : Fractured ribs 9th and 10th ribs on the left in front of lower side of chest.
Pleura : There is tear in the left side of left part.
Lungs : Both Lungs are found to be congested.:
Pericardium : Healthy.
Heart : Found to be congested’, contained old blood.
Abdomen Part : Walls, peritoneum : Healthy. Stomach and its contents : undigested food particles. Intestine was found to be distended due to presence of gas.
Liver, spleen, kidney Found to be healthy.
Bladder was found to be empty. Genitalia : Oozing out of blood from genital present. There was vaginal laceration.
30. ft is in the evidence of P.W. 9 that the injuries were ante-mortem, ecchymosis was present in the neck and that the vaginal laceration was seen along with oozing out of blood, which was due to forceful penetration of the vagina. It is also in the evidence of P.W. 9 that teeth bite marks in different areas were present. In the opinion of P.W. 9, the cause of death was shock following forceful penetration as well as asphyxia following throttling and that the death was instantaneous.
31. The defence, it may be noted, declined to cross-examine P.W. 9. The findings of P.W. 9 and his opinion with regard to the injuries found in the said dead body and the cause of death were, thus, not disputed. This apart, we see no reason, in the facts and circumstances of the present case, to doubt the veracity and/or correctness of the findings of P.W. 9 and/or his opinion with regard to the cause of death of the said victim.
32. In the above back-drop, we, now, turn to the evidence of P.W. 13, an Additional Chief Judicial Magistrate, who recorded the judicial confession of the accused. On close scrutiny of the evidence of P.W. 13; we notice that when the accused was brought, on 21-3-2005, for recording of his confessional statement before P.W. 13, P.W. 13 asked the accused if he was willing to make the confession and the accused, unhesitatingly, told P.W. 13 that he (the accused) wanted to make the confessional statement, whereupon P.W. 13 explained to the accused the consequences of making of the confessional statement and, after taking due precautions, P.W. 13 gave three hours’ time for reflection to the accused. After the period of reflection was over, P.W. 13. as Ext. 9 (which is the record of judicial confession) discloses, explained to the accused, once again, the consequences of making confession and also made it clear to him that he was not bound to make confession. In fact, we notice that P.W. 13 made it clear to the accused that even if he (accused) chose not to make confession, he would not be handed over to the police. This apart, P.W. 13 asked the accused if he needed a lawyer of his choice, but the accused declined to have the services of any lawyer. The record (Ext. 9) also shows that when P.W. 13 questioned the accused as to why he wanted to confess, the accused replied by saying that since he had committed the offence, he wanted to confess. Though the accused, on being asked by P.W. 13, as to whether he had been beaten by the police, replied by saying that he had been beaten once, what needs to be noted here is that merely because of the fact that the accused had been beaten by the police, his confession cannot be rejected outright as involuntary if the evidence on record shows that the accused had made the confession not because of beating, but out of repentance. There was virtually no cross-examination of P.W. 13 to show that the confession made by the accused was involuntary. This apart, the accused admitted, in his statement under Section 313, Cr. P.C., that he did make confession before the Magistrate and signed it. In the case at hand, in the face of all the precautions, which P.W. 13 took as indicated hereinbefore, we have no hesitation in holding that the judicial confession made by the accused was voluntary, particularly, when we find that the accused was given necessary assurance by P.W. 13 by making it clear to the accused that even if he chose not to make confession, he would not be handed over to the police.
33. In his confessional statement, the accused stated thus : “A marriage had been solemnized in the house of my paternal uncle Saruptiou on 14-3-2005. I attended the marriage. A lot of people also attended the same, X was one of them. Her is past 10/15 houses after ours. I do not know which class she was in. The time then was around 9 p.m. when X said that she wanted to go to her mother, I took her out of the wedding house, saying that I would take her to her mother, I took her to a bamboo grove near the wedding house. Once in the bamboo grove, I took off her clothes and rendered her naked. I took off my trousers and got naked myself. Making her lie on her back, I climbed on to her. I tried to push my left index finger into her vagina, but did not succeed, I then pressed my penis against her vagina and tried to penetrate. But there was no penetration. I tried several times. When X loudly said that she had been experiencing pain, I gagged her. Having failed to push my penis into her vagina, I masturbated. Then I felt urinating. The urine passed by me fell on her. Saying that I would be taking her home, I carried her on my lap and started. On the way, I came across a water tank near a culvert. With a view to killing her, I got into the tank with X still in my lap. While taking her into the water, I was pressing her neck with my right hand. Putting her into the water, I pushed her head under the water. I kept her like that for some time. Pushing her head into the water, I lifted her legs up, making sure that her head was under water. While being kept in that position, X beat the water with her hands. After sometime, she became still. After she had died, I left her body there and went home. While at home, my cousin (my paternal uncle’s son) and a few other villagers came to our house and tried to nab me. Coming out of the house, I tried to run away. But the people caught me, when I fell down in a canal. They asked me where I had taken X. Members of the public assaulted me. I then told them that I had sent X to Amsoi. But not believing in my words, the people took me towards the police station. On the way we came across a group of CRPF personnel. They asked us what had happened, I then told them about occurrence and led them to the place, where X’s dead body was lying. The villagers got into the tank and took out X’s dead body from it.
Having committed the bad act (rape/forcible sexual intercourse) on X, I pressed her neck down into the water and killed her, I killed X in that manner out of anger, because her father used to roam about in the village calling me a thief.
I am feeling bad now. But what of that now; I have already committed the incident.”
34. There is, it may be noted, no impediment in law in convicting an accused on the basis of his own confession if the Court finds that such confession is voluntary and true. In the case at hand, we have already indicated hereinabove that the judicial confession of the accused was voluntary. (See Shankaria v. State of Rajasthan AIR 1978 SC 1248 : 1978 Cri LJ 1251 Sarwan Singh v. State of Punjab and Shivappa v. State of Kamataka .
35. The question, now, therefore, is if the judicial confession of the accused is true too? How to ascertain if a voluntarily made judicial confession can be relied upon as true, one can recall the decision in Shankaria v. State of Rajasthan AIR 1978 SC 1248 wherein the Apex Court observed thus,
If the first test is satisfied, the Court must, before acting upon the confession, reach the finding that what is stated therein is true and reliable. For judging the reliability of such a confession, or for that matter of any substantive piece of evidence, there is no rigid canon of universal application. Even so, one broad method, which may be useful in most cases for evaluating a confession, may be indicated. The Court should carefully examine the confession and compare it with the rest of the evidence, in the light of the surrounding circumstances and probabilities of the case. If on such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evi dence and the surrounding circumstances, it may be taken to have satisfied the second test.
36. From the judicial confession made by the accused, it clearly follows that the accused took away the victim girl from the wedding house by falsely telling her that he would bring her to her mother and, then, he took the victim to a bamboo grove and after making her naked inside the bamboo grove and after taking off his own clothes and becoming naked, he made the victim lie on her back, he climbed on her and tried to push his left index finger into her vagina, but did not succeed and, then, he pressed his penis into her vagina and tried to penetrate, but there was no penetration and when he made several attempts of penetration, the victim loudly cried out, because of pain, whereupon he gagged her. The accused, then, masturbated and urinated on the victim’s vagina and, falsely telling her that he would be taking her to her home, he carried her, on his lap, to the water tank and with the intent to kill hen he went down to the tank with the victim in his lap. The judicial confession made by the accused also reveals that while taking the, victim into the water of the said tank, he kept pressing her neck with his right hand and by putting her into the water, he pushed her head under the water. The confessional statement further discloses that pushing the victim’s head into water, the accused lifted her legs up, but her head remained under water and when the victim was put in that position, as described by the accused the victim beat the water with both her hands and after some time, she became still and died. The confessional statement reveals that after the victim had died, the accused left her dead body at the very place, where she had died and went home.
37. What is of immense importance to note, now, is that the confessional statement made by the accused receives corroboration from the materials on record inasmuch as the evidence on record clearly shows that the victim had disappeared from the wedding house and her dead body was found lying under the water of the pond. The injuries, which were found on the victim’s dead body, corroborates the mariner in which the accused describes his attempt to commit rape on the victim and also the manner in which he had killed her. The medical evidence on record fully supports the description given by the accused in his confessional statement. The confessional statement gives requisite details and makes it clear that the accused made the confessional statement of his own, for, it was, within his own knowledge, as to how the victim was killed. We, therefore, see no reason not to hold that the judicial confession made by the accused is true.
38. Coupled with the above, the confessional statement made by the accused also lends credence to the evidence of P.Ws. 1, 2, 3, 5, 6 and C.W. 1 that when the co-villagers of the accused arrived at his house and tried to catch hold of the accused, he tried to run away and the people chased him and caught hold of him.
39. The fact that the accused pointed out the place, where the dead body was, eventually found is, in fact, not disputed by the accused, when the evidence given, in this regard, by the witnesses was put to the accused in his examination under Section 313, Cr.P.C; rather, the accused admitted, in his statement under Section 313, Cr. P.C., that he had, indeed, shown the place, where he had thrown the dead body.
40. What emerges from the above discussion of the evidence on record is that the confessional statement made by the accused is voluntary and true, for, the confessional statement is nothing, but a catalogue of events, which fits in with the rest of the evidence on record, and the surrounding circumstance’s1. Such a confession,1 coupled with other oraal as well as medical evidence on record, discussed hereinabove, is sufficient to hold that what the accused had confessed were not only voluntary, but true too.
41. There is yet another aspect of this case, which we need to point out and emphasis. We have already indicated before entering in to the veracity of the evidence on record that in the light of the decision in Sukhdev Singh 1992 Cri LJ 3454 (supra), there is no impediment, in law in convicting an accused on the basis of his confession made during the course of his examination under Section 313, Cr. P.C. if the same is voluntary and believed to be true. Bearing in mind this aspect of law, when we revert to the examination of the accused under Section 313, Cr.P.C what we find impossible to ignore is that the accused, in this examination, has stated, “The evidence of the doctor is true. At the time of sexual intercourse, X due to pain cried but I closed her mouth with hands….Ext. 3 is the photograph of the girl on whom I committed rape and killed. I also lifted the girl with a view to kill…. It is true. I carried the girl in her naked condition, I killed her keeping her head and face under water and at that time, I caught at her neck tightly with both hands.” In fact, in no uncertain words, the accused stated, “Yes, I took away X secretly from marriage house of my uncle and in the midst of bamboo bari (i.e., bamboo grove), 1 committed sexual intercourse and committed murder at Gosaipukhuri.”
42. It is abundantly clear from the above statements made by the accused, during the course of his examination under Section 313, Cr. P.C, that his statements are nothing, but his confession to the effect that he did entice and take away the victim from the marriage house of his uncle, he carried the victim to the bamboo grove, committed sexual acts, as described by him, to satisfy his carnal lust and killed her.
43. The statements made by the accused under Section 313, Cr. P.C. are in themselves, as laid down in Sukhdev Singh (supra), sufficient to hold that the accused enticed and took away the victim from the marriage house to the bamboo grove, attempted to have sexual intercourse with her, caused her death in the manner as is described by the accused and the victim’s dead body was left in the pond.
44. What crystallizes from the above discussion is that the judicial confession made by the accused has been proved to be voluntary and true. The confession, so made, coupled with the oral evidence adduced by the prosecution indicating as to why the accused was suspected to be involved in the disappearance of the victim, why the victim’s parents, their relative and other co-villagers happened to come to the house of the accused looking for him and how the accused attempted to run away, but he was chased and caught and, eventually, led the police to the pond of Bhupen Bora and in what condition, the said dead body was found and taken out of the pond leave really no room for doubt that the accused did take away the victim from the wedding house and tried to commit sexual intercourse with her, but having failed in his attempts, he killed her and caused disappearance of the dead body in order to screen himself from punishment. In short, the judicial confession made by the accused coupled with the evidence discussed above and the confession of the accused made during his examination under Section 313, Cr. P.C. are sufficient to hold the accused guilty of the offences under Section 376 read with Section 511, Sections 302 and 201 of the Indian Penal Code.
45. Because of what have been discussed and pointed out above, we hold that the accused was guilty of the offences committed under Section 376 read with Section 511, I.P.C. and that the accused was also guilty of the offences under Sections 302 and 201, I.P.C. We, therefore, convict the accused of offences under Section 376 read with Section 511 of the I.P.C. We also uphold the conviction of the accused for offences under Sections 302 and 201 of the I.P.C.
46. The question, now, which we are required to answer is as to whether in the facts and circumstances of the present case, the accused deserved to be awarded the extreme penalty of death? Our quest for an answer to this question necessitates a small survey on the development of the law, on this subject, in India.
47. Coming to the question of the sentence or confirmation of the capital punishment imposed on the accused, what may be pointed out is that the march of human civilization has, undoubtedly, reduced the number of crimes in respect of which death penalty is, now, awarded. In the 18th century, there were about two hundred offences for which death penalty was the rule. Now, death penalty has altogether been abolished in the European Union. In the United States of America too, only crime of treason has till recently been left punishable with death. So also, in India, there are only a handful of offences under the Indian Penal Code, which call for capital punishment. In this context, one may, perhaps, safely say that the scenario in India, especially, the post-independence era, has not been facile. In the year 1949, Rajya Sabha mooted a proposal to altogether repeal death sentence. However, in the backdrop of the events of the partition of India, the then Home Minister made a forceful argument for retention of the capital punishment and, ultimately, the proposal was withdrawn. In the year 1962, a resolution was moved and passed by the Lok Sabha referring to the Law Commission of India, for its views, the desirability or otherwise of the retention of sentence of death. In their 35th report, rendered in the year 1967, the Law Commission of India emphasised the risk of abolition of capital punishment by stating, inter alia, thus, “Experience of other countries could not be conclusive for India. Need for deterrent control provided by capital punishment is greater here in various classes of society. There is greater danger in India of increase in violent crimes if capital punishment is abandoned, particularly, in respect of professional criminals.” The 35th report of the Law Commission, thus, favoured retention of death sentence, particularly, in respect of professional criminals. Approach to the criteria for imposition of death sentence noticeably changed with the coming into force of the Code of Criminal Procedure, 1973, on 1st of April, 1974. What was the position of law with regard to death sentence, before the Code of Criminal Procedure, 1973, came into force, can be summarised by referring to some decisive judicial pronouncements in this regard.
48. In Paras Ram v. State of Punjab S.L.P. (Cri.) Nos. 698 and 678 of 1953, decided on October 9, 1973 the facts were that Paras Ram, who was a fanatic devotee of the Devi, used to hold satsangs at which bhajans Were sung in praise of the Goddess. Paras Ram ceremonially beheaded his four year old boy at the crescendo of the morning bhajan. He was tried, convicted and sentenced to death for the murder. On his death sentence being confirmed by the High Court, Paras Ram filed a petition for grant of special leave to appeal to the Supreme Court under Article 136 of the Constitution. It was contended, inter alia, on behalf of Paras Ram, that the very monstrosity of the crime provided proof of his insanity sufficient to exculpate the offender under Section 84, I.P.C. and this ought to have been considered as a mitigating circumstance, while imposing on him the sentence of death. V. R. Krishna Iyer, J., speaking for the Bench, refused to grant special leave and summarily dismissed the petition with these observations: “The poignantly pathological grip of macabre superstitions on some crude Indian minds in the shape of desire to do human and animal sacrifice, in defiance of the scientific ethos of our cultural heritage and the scientific impact of our technological century, snows up in crimes of primitive horror such as the one we are dealing with now, where a blood-curdling butchery of one’s own beloved son was perpetrated, aided by other ‘pious’ criminals to propitiate some blood thirsty deity. Secular India, speaking through the Court must administer shock therapy to such anti-social ‘piety,’ when the manifestation is in terms of inhuman and criminal violence. When the disease is social, deterrence through Court sentence must, perforce, operate through the individual culprit coming up before Court. Social justice has many facets and Judges have a sensitive, secular and civilising role in suppressing grievous injustice to humanist values by inflicting condition punishment on dangerous deviants.
49. In Jagmohan Singh v. The State of U.P. too, the Supreme Court expressed the view that for certain types of murders, death penalty alone can be considered adequate deterrent inasmuch as the Court observed thus, “A large number of murders is undoubtedly of the common type. But some at least are diabolical in conception and cruel in execution. In some others where the victim is a person of high standing in the country society is liable to be rocked to its very foundation. Such murders cannot be; simply wished away by finding alibis in the social maladjustment of the murderer. Prevalence of such crimes speaks, in the opinion of many for the inevitability of death penalty not only by way of deterrence but as a token of emphatic disapproval of the society.”
50. Responding to the question whether life imprisonment was an adequate substitute for death penalty, the Court in Jagmohan (supra) noted, “In the context of our Criminal Law, which punishes murder, one cannot ignore the fact that life imprisonment works out in most cases to a dozen years of punishment and it may be seriously questioned whether that sole alternative will be an adequate substitute for the death penalty.”
51. In Ediga Anamma v. State of A.P. V. R. Krishna Iyer, J. speaking for the Bench, observed. …deterrence through threat of death may still be a promising strategy in some frightful areas of murderous crime. It was further observed in Ediga Anamma (supra) that “horrendous features of the crime and the hapless and helpless state of the victim steel the heart of law for the sterner sentence.”
52. Before introduction of the Code of Criminal Procedure, 1973, the judicial scenario, in this country, thus, as we have already indicated above, reflected the necessaty of retention of death penalty in some cases of murder for its deterrent effects and disfavoured abolition of death penalty altogether. We have already taken note of a few prominent cases in this regard.
53. We may, now, pause here to point out that the Criminal Procedure Code, 1973, engrafted the hitherto latent legislative intent by providing in subsection (3) of Section 354 thus, “(3) 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.”
54. What follows from a bare reading of the provisions of Section 354(3), Cr. P.C. is that the law makers have introduced ‘legislative limit to the imposition of death penalty inasmuch as it has, now, been made mandatory for the Courts to assign ‘special reasons’ if a Court has to award capital punishment.
55. What constitute ‘special reasons’ for awarding of death penalty have, however, been a subject of divergent views, the prominent ones being the cases of Shiv Mohan Singh v. State Delhi Admn. Bishnu Deo Shaw v. State of W. B. and Rajendra Prasad v. State of U.P. .
56. In Shiv Mohan Singh v. State Delhi Admn. too V.R. Krishna Iyer, J. speaking for the Court, reiterated, by referring to the earlier judgment in Ediga Anamma’s case (supra), the necessity of retention of death penalty for its deterrent effects in these words, “In Ediga Anamroa this Court, while noticing the social and personal circumstances possessing an extenuating impact, has equally clearly highlighted that in India under present conditions deterrence through death penalty may not be a time-barred punishment in some frightful area of barbarous murder.”
57. Even in Charles Sobraj v. Supdt. Central Jail Tihar New Delhi V. R. Krishna Iyer, J. speaking for a Judge Bench of the Supreme Court, reiterated that deterrence was one of the vital considerations of punishment.
58. In the realm of death penalty in India, a visible change, somewhat suddenly, took place with the pronouncements of the decisions in Bishnu Deo Shaw (supra) and Rajendra Prasad (supra).
59. In Bishnu Deo Shaw (supra), the Supreme Court held that reformation and rehabilitation of the offender and not mere deterrence are, now, among the foremost objects of the administration of criminal jus-tice. The Court observed to the effect that ‘special reasons’ must have a nexus with the personality of the offender as revealed by his age. character, antecedents and tracta-bility of the offender to reform. In Rajendra Prasad (supra), Krishna Iyer, J. held that ‘special reasons’, necessary for imposition of death sentence, must relate not to the ‘crime’ as such, but to the ‘criminal’. In other words, the Apex Court, in the two cases cited hereinbefore, took the view that ‘special reasons’ have to be reform-oriented. In the backdrop of the fact that the Code of Criminal Procedure, 1973, had been introduced with the intention of reforming the criminal justice system and aimed at rehabilitating the criminals rather than destroying or eliminating them, the Court took the view that ‘special reasons’ cannot be any reason; rather, a Court, before awarding death penalty, must conclude that the convict is irredeemable. Noticing this shift in the position of law, which Rajendra Prasad (supra) sought to reflect, the Constitution Bench, in Bachan Singh v. State of Punjab, observed thus,
In Rajendra Prasad , however, the majority (of 2 :1) has completely reversed the view that had been taken in Ediga Anamma regarding the application of Section 354(3) on this point. According to it, after the enactment of Section 354(3), ‘murder most foul’ is not the text. The shocking nature of the crime of the number of murders committed is also not the criterion. It was said that the focus has now completely shifted from the crime to the criminal. “Special reasons” necessary for imposing death penalty “must relate not to the crime as such but to the criminal.
60. From the above observations made in Bachan Singh (supra), it is clear that the Constitution Bench took note of the fact that according to the decision in Rajendra Prasad (supra), since after the enactment of Section 354(3), ‘murder most foul’ was no longer the test for imposing death penalty nor were the shocking nature of the crime or the number of murders committed. Essential criteria for imposition of death penalty and that the focus had, now, completely shifted from the crime to the criminal and “special reasons”, necessary for imposing death penalty, shall relate ‘not to the crime as such, but to the criminal’. Disagreeing with the views so expressed in Rajendra Prasad (supra), the Constitution Bench, in Bachan Singh (supra), observed, in paragraph 201, thus, “201. With great respect, we find ourselves unable to agree to this enunciation, as we read Sections 354(3) and 235(2) and other related provisions of the Code of 1973. It is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of “special reasons” in that context the Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the fact and circumstances of the particular case. More often than not these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because ‘style is the man.’ In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate watertight compartments. 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 proportion of extrerme depravity that special reasons” can legitimately be said to exist.
61. There was yet another shift in the position of law with regard to the imposition of death sentence, which Rajendra Prasad (supra) reflected and it was this: The death sentence was constitutionally permissible only if the security of the State and society, public order and the interest of the general public were threatened by the murder, which took place. Reacting to the law, so laid down in Rajendra Prasad (supra), the Apex Court, in Bachan Singh (supra), observed, in paragraph 204, thus, “204. In Rajendra Prasad (1979) 3 SCC 646 : 1979 SCC (Cri) 749, the majority said : “It is constitutionally permissible to swing a criminal out of corporeal existence only if the security of State and Society, public order and the interests of the general public compel that course as provided in Article 19(2) to (6)”. Our objection is only to the word “only”. While it may be conceded that a murder which directly threatens, or has an extreme potentiality to harm or endanger the security of State and Society, public order and the interests of the general public, may provide “special reasons” to justify the imposition of the extreme penalty on the person convicted of such a heinous murder, it is not possible to agree that imposition of death penalty or murderers who do not fall within this narrow category is constitutionally impermissible. We have discussed and held above that the impugned provisions in Section 302, Penal Code, being reasonable and in the general public interest, do not offend Article 19, or its ‘ethos; nor do they in any manner violate Articles 21 and 14. All the reasons given by us for upholding the validity of Section 302 Penal Code fully apply to the case of Section 354(3) Code of Criminal Procedure also. The same criticism applies to the view taken in Bishnu Deo Shaw v. State of W. B. which follows the dictum in Rajendra Prasad .”
62. Thus, Bachan Singh v. State of Punjab, reported in (1980) 2 SCC 684, overruled the decisions in Bishnu Deo Shaw (supra) and Rejendra Prasad (supra) and categorically held that the law, as it stands, does not mandate that ‘special reasons’ must be reform-oriented only or that the death penalty can be imposed only when the security of the State or of the society is threatened or the public order and the interest of the general public are in jeopardy. The Court held that any reason, which is just and adequate in the facts and circumstances of a given case, shall qualify as a ‘special reason’. In short, one cannot, according to what the Court observed in Bachan Singh (supra), restrict imposition of death penalty only to cases, where the security of the State and the society, public order and the interest of the general public are threatened and/or that the ‘special reason’ for imposition of death penalty “must relate not to the crime as such, but to the criminal”, rather, the “special reasons” must pay, according to what Bachan Singh (supra) lays down, due regard both to the crime as well as criminal and what is the relative weight to be given to the aggravating and mitigating factors would really depend on the facts and circumstances of a given case for, many a times, the crime as well as the criminal may be intertwined and it may not be possible for the Court to separate the ‘crime’ from the ‘criminal’ or the ‘criminal’ from the ‘crime’.
63. What, thus, follows from the above discussion is that ‘special reasons’, which Section 354(3) mandates the Courts to record before imposing the death penalty, may take into account both the crime as well as the criminal. In fact, in many cases, these two factors are closely interwoven and may have to be studied together in order to come to a finding as to whether the death penalty is warranted or not. The Court must, while scrutinizing the crime and the criminal, prepare a balance sheet of aggravating as well as mitigating circumstances. While computing the aggravating and mitigating circumstances, the Court shall have to look into the nature of the offence, the manner of its execution, the nature of planning, heinous-ness or otherwise of the crime, the impact of the crime on the society and the society’s reactions thereto. The Court must also pay due regard to the circumstances of the offender including his personality as a whole, which would obviously include his age, character, antecedent, the situation in which the crime was committed, and, above all, the probability of his being reformed and rehabilitated. To put if differently, the criminal can be treated as a sick person and may be sub divided into two groups. Those, who suffer from curable diseases and in respect of whom, society must make endeavour to cure, reform and rehabilitate. The second group of the sick persons may be those, who suffer from incurable disease and are immune to treatment. They are not only immune to treatment, but their very existence may be a grave danger to the community at large.
64. While considering the question of death sentence, what a Court has to understand is as to whether there is any judicial limitation to the imposition of death penalty and, if so, what is the extent of such limitation? The answer to this momentous question is not very far to seek. Made it clear, the Constitution Bench, in Bachan Singh 1980 Cri LJ 636 (supra), that the Court would not venture to formulate rigid standards’ as regard the cases, which demand capital punishment. Further clarified the Supreme Court, in Bachchan Singh (supra), that it is neither practicable nor desirable that the criteria of applying discretion by the Courts to sentence a guilty person to death be laid down exhaustively and in rigid standards. However, the broad criteria guiding the Courts in respect of imposition of death penalty were given shape in Bachan Singh (supra) by making it clear that the extreme penalty of death can be inflicted only in gravest cases of extreme culpability. Thus, the rule limiting the death penalty to “the murder most foul” is, now, christened ‘in the rarest of rare cases’. In other words, the Supreme Court made it clear in Bachan Singh (supra) that awarding of sentence of life imprisonment is the general rule now and that only special facts and circumstances of a given case may warrant the awarding of capital punishment. It was held in Bachan Singh (supra) that normal rule is that the offender shall be sentenced to imprisonment for life, but the Court may, when the circumstances of a given case so justify, depart from this normal rule and impose capital punishment. The Court, however, must justify the imposition of the harshest punishment of death by assigning ‘special reasons’. It may not be out of place to reiterate here that ‘special reasons’ cannot remain confined to either crime or criminal; rather, the ‘special reasons’ may relate to the crime or to the criminal and, in many cases, the ‘special reasons’ may relate to the ‘crime’ as well as the ‘criminal’. However, what was made clear and authoritatively pronounced in Bachan Singh (supra) is that the death penalty cannot be imposed except ‘in the rarest of rare cases’, when alternative option is ‘unquestionably foreclosed’ inasmuch as the Apex Court in Bachan Singh (supra) observed thus. “A real and abiding concern for the dignity of human postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases, when the alternatively option is unquestionably foreclosed.”
65. In Machhi Singh v. State of Punjab reported in 1983 Cri LJ 1457 the guidelines, emerging from Bachan Singh’s case (supra), have been culled out as follows:
(i) The extreme penalty of death need not be inflicted except to 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’.
(iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be and 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 likes to be drawn up and in doing so the mitigating circumstances has 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.
66. In order to apply the guidelines aforementioned, following questions, observed the Supreme Court, in Machhi Singh (supra), 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 ?
67. Further pointed out the Supreme Court in Machhi Singh’s case (supra) that in rarest of rare cases, when the collective conscience of the community is so shocked that it will expect the upholders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The Apex Court, however, clarified, in Machhi Singh (supra), that the community may entertain such sentiment in the following circumstances:
(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.
(2) When the murder is committed for a motive which evinces total depravity and meanness, e.g. murder by hired assassin for money or reward, or cold blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste or minority community etc, is committed not for personal reasons but in circumstances which arouse social wrath, or in a cases of ‘bride burning’ or ‘dowry deaths’ or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality are committed.
(5) When the victim of murder in an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murder is in a dominating position, or a public figure generally loved and respected by the community.
If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the Court would proceed to do so.
68. In the light of the decisions in Bachan Singh (supra) and Machhi Singh (supra) what can be safely concluded is that in ev ery case in which the question of imposition of death penalty arises, 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 to impose death penalty is exercised. In order to apply these guidelines, the following questions may, inter alia, be asked and answered, namely, (a) is there something uncommon about the crime, which renders the sentence of imprisonment for the life inadequate and calls for a death sentence?; and (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 ?
69. The Supreme Court thus, in Machhi Singh (supra), crystallized the principle of ‘rarest of rare cases” by limiting it to the gravest of grave murder and held that the extreme penalty of death should be imposed only in extreme cases. If the trial Court finds, but not otherwise, that the nature of the offence is heinous, the plan and design diabolical, execution is most brutal and there is little prospect of the offender reforming himself, the Court may impose death sentence. The Apex Court, in Machhi Singh (supra), emphasised that death penalty must be imposed only when the 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 sentence the convict to imprisonment for life cannot be consciously exercised having regard to the nature of the crime, all the relevant circumstances in which the crime was committed, prospect of the offender to reformation and rehabilitation. Where collective conscious of the community is so shocked that it will expect the upholders of judicial power centre to inflict death penalty, the Court must respond by awarding the extreme penalty of death provided, of course, that all other judicially settled relevant factors justify imposition of such a penalty.
70. In the backdrop of the position of law with regard to imposition of death penalty as discussed above, let us, now, cull out the aggravating and mitigating circumstances appearing against the present accused.
AGGRAVATING CIRCUMSTANCES
1. The victim was innocent and helpless female child, aged barely 5 years and had just started going to school.
2. This is a case of repeated attempts to commit rape on an innocent and helpless 5 years old child, murder of the victim and causing of disappearance of the victim’s dead body.
3. The child did not sexually excite the accused and did not, thus, contribute to the commission of offence.
4. The accused kidnapped the victim not merely with the intent to kill her, but to also commit rape on her in order to take revenge not from the victim, but from her father, for, the victim’s father according to the accused, used to call the accused a thief and, in fact, the accused had been in jail on several occasions on being arrested for commission of the offences of theft.
5. Rape was not on the spur of the moment, but planned inasmuch as the accused took the victim to the bamboo grove by falsely telling her that he would be carrying her to her mother.
6. The present one was not a simple case of attempted rape on a child, murder and causing disappearance of the evidence of the crime; rather, the accused, in order to make the victim succumb to his might, evil intent and lust bit on the cheek of the child and her stomach. The bite marks, which the dead body bore stand testimony of such barbaric acts of the accused.
7. The victim was put to excruciating pain, for,: the accused has himself stated, in his confessional statement, that the victim had cried out of pain, when he made repeated attempt to cause penetration.
8. The accused exhibited complete absence of human feelings during the course of the commission of the offence and till long time thereafter.
9. Despite committing the dastardly acts on the hapless child, the accused suffered from no instinctive remorse; rather, he tried to abscond and behaved as if he was wholly ignorant of what had happened to the child. In fact, the accused behaved as if no wrong had been done by him and that he was completely innocent.
10. Even when the accused was apprehended, he tried to escape by telling the people that he had sold the child to someone from Amchoi.
11. The manner in which the innocent and helpless child was put to attempt of rape and, ultimately, killed were most inhuman, barbaric and dastardly.
12. The act of attempt to commit rape, murder and disposal of the dead body were cold blooded.
13. There was no sign of instant repentance; rather, the accused tried to bluff his way out by telling people that the innocent child had been sold to someone from Amchoi.
14. The confession made by the accused was not prompt.
15. The accused took revenge not by eliminating the victim’s father, who used to call the accused a thief; rather, he chose the innocent and helpless child to take revenge.
16. The acts of the accused demonstrated the devil and despicable nature of his character, thinking process, mind set and outlook.
17. Moments before the dastardly acts, which the accused committed on the innocent five years old child, he had taken away Prasanta, a boy, aged barely 10 years and a student of Class-V and confined him in his house and this young boy could be rescued only when his father appeared on the scene and threatened to break open the door of the said house.
18. As deposed to by P.W. 4, who is the aunt of the accused, and as the accused too admits, in his examination under Section 313, Cr. P.C. the accused had been involved in offences of theft in the past and had been in jail and not only the people, but even grown up children were scared to go out of their house because of the accused and the accused had become, thus, a terror in his village.
19. When the accused was taking away the victim, X, his role was almost that of a trustee, for, the innocent child had believed the accused and reposed trust in him that he would led her to her mother. The accused, however, betrayed this trust and took away the child to the bamboo grove in order to commit rape on her and killed her with the object of taking revenge from his father.
20. The community to which the victim as well as the accused belonged was not merely horrified and shocked, but intensely detested the accused for the nature of the offences, which the accused had committed and the manner in which he had committed the offences so much so that his co-villagers wanted to snatch away the accused from the hands of the police.
21. The sentence to be imposed by this Court must exhibit the society’s patent disapproval of the acts of the accused.
22. Past conduct of the accused shows that though young, he had become a threat to the society. The young age of the accused cannot, therefore, be treated as an extenuating circumstance. The Court has to bear in mind the people’s reaction and expectation from the Court.
23. Making of a judicial confession, in itself, cannot override all other aggravating circumstances enumerated hereinabove.
MITIGATING CIRCUMSTANCES
1. The accused is a young boy aged about 20 years.
2. Though belated, the accused made a clean breast of what he had done by making a judicial confession.
3. At the trial, the accused showed some signs of remorse by owing up all his wrongs.
71. On a careful consideration of the aggravating circumstances appearing against the accused and also the mitigating factors, which appear in his favour, we find that even after giving full weightage to the mitigating circumstances, which appear in favour the accused, the aggravating circumstances far outweigh the mitigating circumstances, in short, pitted against aggravating circumstances cave into the aggravating circumstances.
72. The manner in which the innocent and helpless child was put to repeated attempt of rape and, ultimately, killed were, as already indicated hereinabove, most inhuman, barbaric and dastardly. The accused, as pointed out hereinabove, exhibited complete absence of human feelings and sensitivity during the course of commission of the offence and for fairly long time thereafter. The dastardly act of the accused becomes all the more inhuman, barbaric and beastly, when we find that the child, in question, had in no way sexually excited the accused and she became a victim of revenge not because of her own fault but because of the fact that her father used to call the accused a thief. In view of the fact that the accused had remained in jail on several occasions for being allegedly involving in offences of theft, the fact that he had become a terror in his village are not in dispute. What also cannot be ignored is that the accused did not suffer from any instinctive ramous; rather, he tried to abscond and behave that he is wholly ignorant of what have happened to the child. In fact, he behaved like a person that no wrong had been done by him and that he was completely ignorant so much so that even when he was apprehended, he tried to bluff his weigh out by telling the people that he had sold the child to someone from Amchoi. Coupled with the above, these un-ignorable circumstances, the Court have also to bear in mind the reaction of the society to which both the victim and the accused belonged. The Supreme Court has made it clear in Machhi Singh (supra) that when a murder is committed in an extreme revolting manner, the community would be justified in expressing its extreme indignation to such act of the accused. In the case at hand, the accused did not merely throttled the child to death, what he, in fact, did was to put the head of the child inside the water and lifted her legs up and in this position made the helpless child suffocated to death. The manner of killing the child was, to say the least, ghastly, grotesque and bristly. A perpetrator of such offence, as the accused has committed, and the barbaric manner in which the offences have been committed, leave no room for doubt in the mind of this Court that the present one is such a case, which falls within the category of rarest of rare cases and the alternative option of letting the accused off with imprisonment for life is ‘unquestionably foreclose’.
73. In Surendra Pal Shivbalakpal 2004 Cri LJ 4642 (supra), which Mr. J. M. Choudhury learned Senior Counsel, has relied upon to contend that the penalty of sentence of death ought not to have been imposed in the present case, what needs to be pointed out is that in Surendra Pal Shivbalakpal (supra), the Apex Court did not find, in the facts and attending circumstances of that case, that the penalty of death should have been imposed on the appellant, for, the accused was aged about 36 years at the time of occurrence, there was no evidence to show that he was involved in any criminal case in the past, he was a migrant labourer from U.P. and was living in impecunious circumstances and, above all, there was nothing on the record to show that the appellant, if left alive, would be a menace to the society in future. In the case at hand, though the accused is a young person, the evidence on record clearly re-Veals that he was involved in the past in offences of theft, he had remained in jail in some criminal cases, his co-villagers and, particularly, children of the village used to be scared of him. Moreover, the beastly and grotesque manner in which the crime was committed indicate that the accused, if let off with life imprisonment, may become a menace to the society in future. Above all, the reaction of the society and the degree of the shock that the people in the society to which the victim and the accused belong show that the society felt appalled at the dastardly manner in which the innocent and helpless child was sexually abused, assaulted and put to death. Having suffered from such deep a shock, the collective conscious of the community would reasonable and justified in expecting the upholders of judicial power centre to inflict the extreme penalty of death.
74. Pointing out that undue sympathy to impose inadequate sentence would do harm to the justice delivery system by undermining the public confidence in the efficacy of law, the Apex Court, in Sevaka Perumal v. State of T.N. held that it is the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.
75. In Dhananjoy Chatterjee v. State of W.B. the Supreme Court has observed that a shockingly large number of criminals go unpunished thereby increasingly encouraging the criminals and in the ultimate making justice suffer by weakening the system’s creditability. The imposition of appropriate punishment, points out the Supreme Court in Dhananjoy Chatterjee (supra), is the manner in which the Court responds to the society’s cry for justice against the criminal. Justice, according to the Supreme Court, in Dhananjoy Chatterjee (supra) demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime and that the Court must not only keep in view the rights of the criminal, but also the rights of the victim of the crime and the society at large, while considering the imposition of appropriate punishment.
76. What thus crystallizes from the above discussion is that the present one is a case in which undue sympathy of the accused may shake public confidence in the efficacy of the justice delivery system and this Court must respond to the situation positively and shall not hesitate to confirm the imposition of penalty of death on the accused.
77. In the result and for the reasons discussed above, we confirm the sentence of death imposed on the accused by the learned trial Court and dismiss the appeal. The Criminal Death Reference as well as the Criminal Appeal shall accordingly stand disposed of.
78. Send back the LCR.