JUDGMENT
Sharma, J.
1. In Jhalawar City on June 21, 1996 between 6 and 6.30 p.m. accused appellant Pappu @ Krishnamurari allegedly killed Dilip, Rajesh and Bhanwar Lal at three different places and when assaulted Tilak Raj with knife at a fourth place he was arrested. At 6.35 p.m. Tilak Raj lodged a written report with the Police Station Kotwali Jhalawar. Investigation commenced. The dead bodies were subjected to autopsy. Site was inspected. Statements of the witnesses were recorded under Section 161 Cr.P.C. On completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge No. 2 (Fast Track) Jhalawar. Accused denied the charges framed under Sections 302, 307 and 452 IPC and claimed trial. The prosecution examined 22 witnesses and exhibited 35 documents. In the explanation under Section 313 Cr.P.C. the accused pleaded innocence and produced three witnesses in defence. The learned Trial Judge vide judgment dated July 18, 2001 convicted and sentenced the accused as under-
U/s. 302 IPC
Sentence of death and a fine of Rs.100/- in default to
undergo 15 days imprisonment.
U/s. 307 IPC
to undergo imprisonment for life and fine of Rs.100/- in
default to further undergo 15 days imprisonment.
U/s. 452 IPC
7 years R.I. and fine of Rs.100/- in default to further
undergo 15 days imprisonment.
2. Learned trial judge made reference bearing Death reference No. 1/2001) under Section 366 Cr.P.C. for confirmation of death sentence awarded to the accused Pappu @ Krishnamurari. The accused Pappu also impugned the findings of the learned trial judge by preferring Jail appeal bearing No. 482/2001. We straightway proceed in accordance under Sections 366 and 368 Cr.P.C. to examine the entire evidence independently.
3. The facts of the case, as unfolded during the trial are that the accused Pappu had animosity with Tilak Raj (PW .5) because he appeared as a witness against Pappu in a criminal case lodged by one Ravi. On the fateful day of June 21, 1996 around 6 p.m. accused Pappu shouted to Dilip (now deceased) that he was acting very pricey. Dilip’s Tea Stall was just opposite the Pan shop of Pappu and between the Tea Stall and Pan shop, there was a cement road. Dilip came over to Pappu’s Pan shop to enquiry as to what the matter was and tried to give some explanation but Pappu took out a knife and assaulted Dilip who fell down. Pappu then turned around and went to the shop of one Ram Babu where he found Dilip’s elder brother Rajesh (now deceased). Pappu allegedly attached Rajesh in the shop, Rajesh ran for his life on the main road, Pappu chased him and struck him with the knife. After assaulting Dilip and Rajesh, the accused Pappu all drenched in blood and carrying a blood stained knife in his hand, walked through the busiest market of Jhalawar and reached a place about 3/4th kilometer away at a place called Kale Babu Ki Haveli, where he found Bhanwarlal (now deceased) sitting with Kunj Behari (PW.3) and Mahesh Hada (PW.14). The accused Pappu walked up to Bhanwar Lal and stabbed him. Bhanwar Lal collapsed and died. After this Pappu went to Ratan LaPs house where he found Tilak Raj (PW.5), When Pappu attacked Tilak Raj his wife Shashi Kala (PW.7) ad his nephew Jitendra (PW.2) intervened and they sustained injuries. Pappu dragged Tilak Raj outside the house where Kunj Bihari (PW.3) Hamesh Hada (PW.14) and Yogesh (PW.1) caught hold of the accused. In the meanwhile the police arrived and arrested the accused.
4. We now propose to deal with each incident related to the alleged murders of Dilip, ‘Rajesh’, ‘Bhanwar Lal’ and “assault on Tilak Raj”.
Dilip’s Murder
5. Two eye witnesses viz. Sarveshwar Dutt (PW.8) and Abdul Aziz (PW.11) deposed that murder of Dilip was committed by Pappu in a busy market place. According to Sarveshwar Dutt (PW.8) Pappu told Dilip that he was siding with his enemies and acting very pricey. Thereupon Dilip came across the main road to Pappu’s. Pan Shop and inquired as to what the matter was. When Dilip was clarifying the position, Pappu cursed him. After few minutes Pappu pulled out a knife and assaulted Dilip. He struck Dilip on the neck and stabbed him in the stomach. Abdul Aziz (PW.11) in him deposition stated that Pappu told Dilip that he and his brother were acting very pricey. When Dilip tried to clarify, Pappu got down from his shop and inflicted knife blows on both sides of neck and chest of Dilip. As per medical injury report (Ex.P.16) Dilip sustained as many as four incised wounds as under-
(i) Incised would (stab) 2 1/2″x 1″x Trachea cut – 1 1/2″ above the sterno clavicles joint left lat. aspect of neck
Oblique spindle shape-air and blood came out from would. Major vessel of neck also cut left side-directed downward and medially -Dangerous to life – Sharp
(ii) Incised wound 1 1/2″ x 1″ muscle deep spindle in shape downward medially, 1″ above the sterno clavicles joint at lat, aspect of neck – Simple sharp.
(iii) Incised would – 3/4″ x 1/2″x skin deep – 1″ later and 1/2″ below the left nipple of chest. – simple sharp
(iv) Incised would – 2″ x 1/2″ x l/2″x bone deep medial aspect of left hand-Simple sharp.
Dilip was examined at 7.05 p.m. on June 21, 1996 and he died at 11.30 p.m. Autopsy on the dead body of Dilip was conducted at 9.10 a.m. on June 22, 1996. As per post mortem report (Ex.P.1) cause of his death was shock due to excessive bleeding as a result of cutting left side of major vessel of neck.
6. Mr. R.S. Chauhan learned amicus curiae contended that according to site plan (Ex.P.27) the eye witnesses Sarveshwar Dutt and Abdul Aziz were standing a street away from the shop of the accused and it was not possible for them to hear the altercation between Dilip and the accused in the noise of busy market place. It is further urged by the learned counsel that witness Sarveshwar Dutt categorically deposed that Pappu stabbed Dilip on the stomach but the injury report of Dilip (Ex.P.16) and Post mortem report believed such a deposition as no injury was found on the stomach of Dilip. As tnere is irreconcilable conflict between ocular and medical testimony the accused is entitled to the benefit of doubt in view of the ratio indicated in Sri Niwas v. Ram Bharosey. Learned counsel further canvassed that although Sarveshwar Dutt informed about the incident to the police yet his statement under Section 161 Cr.P.C. was not recorded till June 22, 1996. This delay caste a doubt about the veracity of his testimony as was held in Babu Maulana v. State of Rajasthan. Referring to the cross examination of witness Abdul Aziz, learned counsel urged that he was the land lord of Ravi and he had one testified against Pappu. Thus Abdul Aziz is an inimical witness. His conduct at the time of alleged incident was most unnatural. Although he had seen the accused drenched in blood carrying a bloody knife yet he did not raise any alarm. He did observe the crime coolly. His statement was also recorded by the police on June 22, 1996. There are material contradictions in the statements of Sarveshwar Dutt and Abdul Aziz on material point as to how many injuries Dilip had sustained.
Rajesh’s Murder
7. The prosecution examined four eye witnesses namely Sarveshwar Dutt CPW.8) Abdul Aziz (PW.11), Ram Bharos (PW. 18) and Tara Chand (PW.19) to the alleged murder of Rajesh. Sarveshwar Dutt deposed that after inflicting injuries to Dilip, Pappu walked to the shop of Ram Babu where Dilip’s brother Rajesh was sitting. Pappu altercated and assaulted Rajesh with knife in his stomach and Rajesh fell down. According to Abdul Aziz, Pappu after the incident with Dilip went to the shop of Hari Mohan where Dilip’s brother Rajesh was sitting. Pappu caught hold of Rajesh and inflicted knife blows on his neck and chest. Ram Bharos (PW. 18) in his deposition stated that he had seen Pappu inflicting knife blows on the left side of chest of Rajesh. Tara Chand (PW.19) stated that he had seen Rajesh drenched with blood and at that time Pappu was armed with knife. Pappu was saying that he would kill all his enemies.
8. According to post mortem report (Ex.P.19) Rajesh sustained following an-temortem injuries-
(i) Stab incised would – spindle shape-Oblique 1-1/4″ x 1/2″ x lung deep. Directed towards down ward just below the clavicle at left border of sternum.
(ii) Stab incised would – 3/4″ x 1/4″ muscle deep. Oblique 2″ above the sterno clavicles joint anterior aspect of left side of neck.
(iii) Abrasion – 1/2″ x 1/2″ lat. to left eye.
Cause of death was shock due to excessive bleeding as a result of cutting of left side of major vessel and left lung injury.
9. Mr. R.S. Chauhan learned counsel urged that all the four eye witnesses contradicted each other on material points therefore they are unreliable and untrustworthy witnesses. Rajesh as per site plan (Ex.P.27),did not fall in the shop of Ram Babu but allegedly collapsed’at a point marked ‘J’ i.e. in front of the house of Hari Mohan. Ocular evidence has not been corroborated by medical evidence. Statement of Ram Bharos (PW.18) was not recorded till June 23, 1996 which caste doubt on the veracity of his statement. Post Mortem report was so unscientifically recorded that no reliance should be placed on it.
Bhanwar Lal’s Murder
10. The prosecution examined two eye witnesses viz. Kunj Bihari (PW.3) and Mahesh Hada (PW. 14) to the alleged murder of Bhanwar Lal. Kunj Bihari (PW.3) in his deposition stated that on June 21, 1996 around 6.30 p.m. he alongwith Bhanwar Lal and Mahesh Hada were sitting on the chabutra of Jwala Bhawan and chatting together. He saw Pappu carrying a knife in his hand and coming from the side of motor Garage. The moment he came, he struck Bhanwar Lal on the chest and also caused injury on the head with knife. Bhanwar Lal started bleeding and died then and there. Mahesh Hada (PW.14) an advocate narrated almost the same version as was deposed by Kunj Bihari.
11. Autopsy on the dead body of Bhanwar Lal was conducted and as per post mortem report (Ex.P.18) Bhanwar lal sustained following injuries before his death-
(i) Stab Incised would 1″x 1/2″ (at mid) x piercing oblique spindle shape – Sternum and visceral deep-Directed towards the heart-Lower l/3rd of sternum 1/2″ apart from mid line – Rt. side of heart.
(ii) Incised would – 1/2″ x 1/4″ x skin deep Rt. frontal part of heart. (iii) Abrasion 1/2″ x 1/2″upper eye lid of Rt. eye. Cause of death was shock due to injury on heart, left lung and lever.
12. Mr. R.S. Chauhan learned counsel canvassed that although there were tenants in Kale Babu Ki Haveli yet the prosecution examined only two eye witnesses. Kunj bihari is nephew of the deceased Bhanwar Lal and Mahesh Hada is a chance witness. Surprisingly although both the witnesses had allegedly seen Pappu carrying with a bloody knife yet they made no attempt to protect Bhanwar Lal. They did not even shout. Such an unnatural conduct does not seem to emanate from a true eye witnesses. It is urged by the learned counsel that considering the unnatural conduct of both the witnesses and looking to the fact that their ocular testimony was contradicted by the post mortem report. These eye witnesses are highly unreliable and the accused Pappu can not be convicted on the basis of their testimony.
Tilak Raj’s Assault
13. In his deposition Tilak Raj (PW.5) stated that on June 21, 1996 around 6 p.m. he was at his uncle’s house and brushing his teeth, suddenly Pappu came from the back and inflicted knife blow on his neck. Before the turned to his back, Pappu gave repeated knife blow on his head, hand and chest. His wife Shashikala (PW.7) and nephew Jeetendra (PW.2) intervened. At the same time police came over there and caught hold of Pappu and seized his knife. Pappu was shoutjng that he had already killed Dilip, Rajesh and Bhawar Lal. Tilak Raj instituted written report (Ex.P.11) with the police and got his injuries examined. As per injury report (Ex. P.13) Tilak Raj sustained following injuries –
(i) Incised would 4″ x 1 1/2″ x muscle deep Lat. aspect of Left shoulder.
(ii) Incised would (vertically) 1/2″ x 1/4″ skin deep above the left eye brow.
(iii) Incised wounds (two wounds) 1/2″ x 1/2″ x 1’/4″ and 1″x 1/2″x 1/2″ – 1″ apart each other on Top of Head.
(iv) Incised would (spindle) 1″ x 1/2″ skin deep.
(v) Incised would 1 1/4″ x 1/2″ x skin deep Post auxiliary line left side of chest.
(vi) Incised would 1 1/2″ x 1/2″ x 1/2″ Left side post aspect of neck. (vii) Incised would 3″ x 1 ” muscle deep Upper 1/3rd of rt. leg. (viii) Incised would 1″ x 1/2″ x 1/4″ Post and ant. aspect of left hand.
14. Shashi Kala (PW.7) deposed that on June 21, 1996 around 6.30 p.m. she, her husband Tilak Raj and nephew Jeetendra were sitting at his uncle in law’s house. Krishnamurari came over there with an open knife and started inflicting blows on head, shoulder, hand and chest of her husband Tilak Raj. When she and Jeetendra intervened, they also sustained injuries. According to injury report (Ex. P.15) Shashi-kala sustained following injuries-
(1) Incised would 1 1/2″ x 1/2″ x Bone deep Rt. Index finger, (ii) Incised would 1″ x 1/2″ x muscle deep Rt. Middle finger, (iii) Incised would 1/2″ x 1/4″ Rt. ring finger, (iv) Incised would 1/8″ x 1/10″ x 1/10″ Lt. middle finger.
15. Jeetendra (PW.2) also deposed that Krishnamurari came over there with open knife and inflicted injuries on the head, shoulder, neck, left hand and chest of Tilak Raj. When Jitendra and Shashi Kala intervened thy also received injuries. Jeetendra was medically examined and as per his injury report (Ex. P. 14) he sustained one incised would 1″ x 1/2″ x 1/2″ in between the Rt. Index finger and thumb.
16. Mahesh Hada (PW.14) Kunj Bihari (PW.3) and Yogesh (PW.1) caught hold of Pappu @ Krishnamurari and handed him over to the police. Manvendra Singh, Investigating Officer (PW.20) testified this fact. Knife was seized from the possession of Pappu vide Ex.P.2. Blood smeared soil from all the four places of incident was recovered and sealed. Blood stained clothes of the three deceased and injured were also seized. As per injury report Ex.D.3 Pappu sustained following injuries-
(i) Vertical lacerated would 1/2″ x 1/4″ x 1/4″ Just below left eye blow.
(ii) Tr. lacerated would 1 1/2″ x 1/4″ x 1/4″ over Rt. Parietal bone of head.
(iii) Tr. lacerated would 1 1/4″ x 1/4″ x 1/4″ – 1/1/2″ below injury No. 2 (iv) Tr. Incised would 1/2″ x 1/4″ x 1/4″ Rt. little finger (v) Tr. Incised would 1/2″ x 1/4″ x 1/4″ Upper l/3rd over Rt. fore finger. (vi) Tr. Incised would 1/2″ x 1/4″x 1/4″ Upper l/3rd of Rt. middle finger.
(vii) Tr. Incised would 1/2″ x 1/4″ x 1/4″ Upper 1/3 rd of Rt. Index
Finger.
(viii) Abrasion 1″ left palm.
(ix) Tr. Incised would 1 3/4″ x 1/8″ x 1/4″ Over distal part of left thumb.
17. Mr. R.S. Chauhan learned counsel contended that again ocular evidence is in conflict with the medical evidence. The intention of Pappu to kill Tilak Raj is not apparent from the nature and the number of injuries. The story of the prosecution is not believable on this point of attack on Tilak Raj either. Most of the wounds received by Tilak Raj were on the front part of the body. The place and the nature of injuries clearly show that these wounds had either been received somewhere else or they were self inflicted. The prosecution story that Pappu dragged Tilak Raj outside the house and he was caught by Mahesh Hada, Kunj Bihari and Yogesh is not believable. There are material contradictions in the statements of these witnesses. Even according to site plan (Ex. P.22) they were all shown as standing outside the house, however they all had described the assault inside the house as though they were eye witnesses of the said assault.
18. Mr. Chauhan next contended that delay in beginning the investigation is inexplicable and it caste doubt about the veracity cf the prosecution case. There was an inordinate delay in sending the FIR to the Magistrate which rendered the FIR suspicious. The prosecution has suppressed the genesis of the case. Injuries sustained by the accused Pappu were not explained. The I.O. had personal prejudice against the accused and the intentionally left the material witnesses.
19. It is further urged by the learned counsel that since the case deals with four separate and distinct offences, the accused should have been charged and tried separately in accordance with Section 218 Cr.P.C. The provisions contained in Section 235 Cr.P.C. have not been complied with by the learned trial Judge. Despite the gravity of the case the trial judge did not examine Ravi as a court witness as well as relatives of Dilip and Rajesh, Learned trial judge was duty bound to cross examine Dr. G.S. Chauhan on material point but he did not do so. Thus the trial is totally vitiated.
20. Per contra Mr. Rajendra Yadav, learned Public Prosecutor contended that the accused Pappu in a calculated manner eliminated Dilip, Rajesh and Bhanwarlal. Pappu also attempted to kill Tilak Raj. in respect of discrepancies in the statements of the eye witnesses, it is contended by the learned Public Prosecutor that no true witness can possibly escape from making some discrepant details. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. One day delay in recording the statement of witnesses by the police was not fatal in the facts and circumstances of the case. It is urged that in view of the totality of the circumstances the case comes amongst rarest of rare case and sentence of death was rightly passed by the learned trial court.
21. We have carefully gone through the material on record in order to appreciate the submission advanced before us. A close look at the statements of the eye witnesses goes to show that there are some discrepancies in their testimony, but we find that presence of the eye witnesses examined by the prosecution is natural and on scanning their testimony from the point of view of trustworthiness we find that they are truthful witnesses. Their Lordships of the Supreme Court in Rammi v. State of M.P., indicated in para 24 thus-
“24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. Not true witness can possible escape from making some discrepant details. Perhaps and untrue witness who is well tutored can necessarily make his testimony totally non-discrepant. But court should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witnesses) is unrealistic approach for judicial scrutiny.”
22. In the instant case the witness Sarveshwar Dutt deposed that Pappu inflicted knife blow on the stomach of Dilip. But from the post mortem report no injury was found on stomach. A close scrutiny of the statement of Sarveshwar Dutt demonstrates that he had seen the incident from a long distance and because of the distance this witness averred that knife blow was inflicted on the stomach. In fact the blow was inflicted just below the nipple and above the stomach. Thus in our view this discrepancy is not very much material to discard the entire testimony of Sarveshwar Dutt. Moreover we do not find any infirmity in the statement of Abdul Aziz as his testimony has been corroborated by the medical evidence and even if we ignore the statement of Sarveshwar Dutt the prosecution in our opinion has established on the basis of testimony of Abdul Aziz that accused Pappu inflicted knife blow on the neck and chest of Dilip.
23. The angle chosen by the learned counsel for the accused to attack the prosecution case with reference to the site plan is also devoid of merit. There may be discrepancies in the statements of prosecution witnesses but on the basis of that it can not be said that the occurrence did not take place. The testimony of Sarveshwar Dutt that injuries on the person of Rajesh were caused in the shop of Ram Babu cannot be discarded on the ground that when the accused was making assault it would not be possible either for the accused indulging in the assault or the victim to be stationery
at a particular point. In Ram Swaroop v. State of U.P., the deceased died as a result of gun shot firing and witnesses assaulted. Witnesses deposed that they were assaulted on the north side of a chabutra which was a small plat form 2-3 paces in width and 3-4 paces in length but in site plan place shown as point 3 was on east of chabutra. Despite this discrepancy it was held by the Hon’ble Supreme Court that it cannot be said that the occurrence did not take place there. Relying on the oral evidence it was held that the deceased was shot at towards the south-west of the chabutra and the witnesses were injured towards the north of the chabutra. It was observed by their Lordships of the Supreme Court the “High Court rightly took the view that as the assault was going on it would not be possible for the persons indulging in the assault to be stationary at a particular point.
24. Our attention has been drawn by the learned counsel for the accused appellant to the various lapses of the investigation but on this ground we are unable to reject the testimony of the eye witnesses as we find element of truth in their testimony. In State of U.P. v. Sikandar Ali, their Lordships of the Supreme Court observed in para 11 thus –
“This court has repeatedly cautioned that the lapse of the investigation should not prevent the court from accepting the eye witnesses evidence if it is otherwise truthful.”
25. In so far as the argument in regard to delay in examining the witnesses is concerned it is also devoid of merit as no unfair practice on the part of investigating agency for concocting the false case has been brought to our notice. Hon’ble Supreme Court in Ranbir v. State of Punjab, indicated in para 7 thus –
“The question of delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a got up witness to falsely support the prosecution case.”
26. The arguments raised by Mr. R.S. Chauhan learned counsel on the basis of the post-mortem report of the deceased Dilip, Rajesh and Bhanwar Lal also do not appeal to us. We have before us clear evidence of the witnesses that establish beyond reasonable doubt that death of Dilip, Rajesh and Bhanwar Lal was caused by knife and in view of clear evidence about the cause of death the autopsy examination looses all its significance as is held by the Hon’ble Supreme Court in Kehar Singh v. State, that where there is a clear evidence about the cause of death the post mortem examination looses all its significance. Post mortem examination becomes important only in those cases where the cause of death is to be established and is a matter of controversy.
27. We also do not find merit in the contention of learned counsel that the witnesses examined by the prosecution are chance witnesses and no reliance should be placed on their testimony. It is well settled that testimony of a chance witness only requires close scrutiny, such a witness cannot be considered untruthful because he is a chance witness. On a close scrutiny of the testimony of witnesses we find the presence of Abdul Aziz (PW.11) Mahesh Hada (PW.14) Kunj Bihari (PW.3), Tilak Raj (PW.5), Shashi Kala (PW @ 7) and Jeetendra (PW.2) is most natural. Nothing in favour of the accused could be elicited from their cross examination. Considering their testimony from the point of view of trustworthiness we are satisfied that they had not spoken untruth and their testimony had not been polluted and we find their evidence honest and true.
28. We find ourselves unable to agree with this submission of learned counsel that the origin and genesis of the case has been suppressed by the prosecution. Most of the injuries sustained by the injured were on the fingers and the prosecution has explained those injuries. Shashikala and Jeetendra had a scuffle with the accused and they both sustained incised wounds on their fingers. The accused was caught with the
knife by Mahesh Hada and Kunj Bihari and was handed over to the police. In the memo of arrest we find narration of the injuries sustained by the accused.
29. We also do not find any merit in this submission of the learned counsel that the case suffers from the vires of misjoinder of charges and the trial stands vitiated. The prosecution in our view has established interconnection in between ali the four incidents and this is not a case of misjoinder of charges. Even otherwise, in trying all the four incidents together no failure of justice is caused to the accused. We are unable to accept this contention of the learned counsel that the case be remanded for de novo trial. In a recent judgment rendered in State of M.P. v. Bhooraji and others, their Lordships of the Supreme Court indicated that a de’novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It should be limited to the extreme exigency to avert “a failure of justice”.
30. On an independent appraisal on record we are satisfied that the prosecution has established the charges under Section 302, 307 and 452 IPC against the accused beyond reasonable doubt and he was rightly convicted.
31. That takes us to the quantum of sentence. Section 302 IPC beyond stating that the sentence for murder is either death of imprisonment for life, does not elaborate any further on that are the circumstances under which death sentence or lesser sentence could be imposed. Their Lordships of the Supreme Court in Bachan Singh v. State of Punjab, while being reluctant to categorise or list all aggravating circumstances, held that the aggravating circumstances, held that the aggravating circumstances, which may qualify and form the basis of special reasons in Section 354(3) Cr.P.C. must be aggravation of abnprmal or special degree. The Hon’ble Supreme Court also indicated that the sentence of death must be imposed only in “the rarest of rare cases.”
During the hearing of Bachan Singh’s case (supra) it was suggested that the following circumstances may be considered as guidelines for determining aggravating circumstances which would warrant the imposition of death penalty-
(a) if the murder has been committed after previous planning and involves extreme brutality: or
(b) if the murder involves exceptional depravity: or
(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant while such member or public servant was on duty.
32. In exercising its discretion the court may take into consideration, the following circumstances as mitigating, on the basis of which the lesser punishment of imprisonment for life may be imposed:
(i) That the offence was committed under the influence of extreme mental or emotional disturbance:
(ii) If the accused is young or old, he shall not be sentence to death;
(iii) The probability that the accused would not commit communal acts of violence as would constitute a continuing threat to society;
(iv) The probability that the accused can be reformed and rehabilitated;
(v) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence;
(vi) That the accused acted under the duress of domination of another person;
(vii) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
33. In Brijkishore Pandey v. The State of U.P., their Lordships of the Supreme Court indicated that plea of irresistible impulse may be taken into account in assessing the true punishment to be given in a given case.
34. In Shri Bhagwan v. State of Rajasthan, five persons of a family were battered to death without mercy by a young culprit aged about 20 years. Their Lordships of the Supreme Court, commuted the death sentence imposed upon the accused into sentence of imprisonment of life nd indicated that the accused shall not be released form the prison unless he has served out atleast 20 years of imprisonment including the period already undergone by him.
35. Their Lordships of the Supreme Court in Dalbir Singh v. State of Punjab, observed thus-
“Taking the cue from the English Legislation on abolition, we may, suggest that life imprisonment which strictly means imprisonment for the whole of main’s life, but in practice amounts t incarceration for a period between 10 and 14 years may at the option of the convicting court, be subject to the condition that the sentence of imprisonment shall last as long as life lasts where there are exceptional indications of murderous recidivism and the community can-not run the risk of the convict being at large. This takes care of judicial apprehensions that unless physically liquidated the culprit may at some remote time repeat murder.”
36. The aforequoted principle was followed by their Lordships of the Supreme Court in Subhash Chander v. Krishna Lal , and it was indicated in para 23 thus-
“However, in the peculiar circumstances of the case, apprehending imminent danger to the life of Subhash Chander and his family in future, Caking on record the statement made on behalf of Krishan Lal (A-1) we are inclined to hold that for him the imprisonment for life shall be the imprisonment in prison for the rest of his life. He shall not be entitled to any commutation or premature release Under Section 401 Cr.P.C. Prisoners Act, Jail Manual or any other statute and the Rules made for the purposes of grant of commutation and remissions.”
37. We deem it appropriate at this juncture to refer the views indicated by K. PEASE & C. FITZMAUR1CE in : The Psychology of Judicial Sentencing (1986) Page 49-
“Let us first assume that the more serious a crime is the more we disapprove of it was the more we would like to reduce its incidence. How would a judge operating according to each of the sentencing purposes set out above relate offence seriousness to sentence severity? When incapacitation is the informing principle, the more serious the offence the longer the time for which the offender would properly be incapacitated, thereby preventing more of the serious crime. When deterrence is the informing principle the more serious the offence, the more severe the sentence, on the ground that the more serious the offence the more the offender and other citizens should be produced with disincentives against committing it when rehabilitation is the sentencing purpose the more serious the offence, the more damaged must be the personality of the offender, and hence the longer he must be detained by the State in order to the damage.”
38. The acts of unparalleled evil and barbarity of the accused Pappu @ Krishnamurari as noticed by us in the instant case, cannot be looked with equanimity. The crime committed by him tends to destroy one’s faith in all that is good in life. Pappu, on the date of the offence was 28 years of age and plea of irresistible impulse has also been raised on his behalf by the learned Amicus Curiae and in order to asses the true punishment in the facts and circumstances of the case we have to take into account
the said plea in view of ratio indicated in Brij Kishore Pandey v. The State of U.P. (supra). On a careful scrutiny of the entire evidence we find that the offence was committed by the accused under the influence of extreme mental or emotional disturbance and we do not think it to be one of the rarest of rare cases warranting death sentence. Hence even though we commute the death penalty, yet we are of the view that the punishment should have deterrent effect as well was not further chance to the accused for relapsing into the crime and becoming danger to the society. Placing reliance on the ratio indicated in Shri Bhagwan v. State of Rajasthan (supra) we upheld the conviction of the accused under Section 302 IPC but commute the death sentence imposed upon the accused Pappu @ Krishna Murari and direct that he shall undergo the sentence of imprisonment for life, we further direct that the accused shall not be released from the prison unless he has served out at least 20 (twenty) years of imprisonment including the period already undergone by him. We confirm the conviction under Section 307 and 452 IPC and the sentence so awarded by the learned trial Judge to the accused.
39. The reference is answered accordingly and with the above directions and modification in the sentence the appeal of accused stands disposed of. We record our appreciation for the able assistance rendered by Mr. R.S. Chauhan learned Amicus Curiae.
