CASE NO.: Appeal (crl.) 947 of 2003 PETITIONER: Sushil Murmu RESPONDENT: State of Jharkhand DATE OF JUDGMENT: 12/12/2003 BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT. JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT,J
The little drops of humanness which conjointly make humanity a
cherished desire of mankind had seemingly dried up, when a young
child of 9 years was sacrificed before Goddess Kali by the appellant for
his own prosperity is what the prosecution alleges.
“Little drops of
Water, little grains of sand,’
Make the mighty ocean
And the pleasant land,
Little deeds of kindness, little
Words of love,
Help to make earth happy
Like the heaven above.”
Said Julia A.f. Cabney in “Little Things”.
The still, sad music of humanity had become silent when it was
forsaken by the accused-appellant is what has been found by the Courts
below.
11th December, 1996 turned out to be a heart-breaking day for
Somlal Besra (PW-2). In the evening of that day he found his son Chirku
Besra (hereinafter referred to as ‘the deceased’) missing from house. He
searched for him making inquiries from various persons. Information
surfaced that he was sacrificed before Goddess Kali by the appellant.
Two other persons, his wife and mother were also said to be parties to
the gruesome killing. The prosecution case centered round extra judicial
confession made by accused before large number of persons, recovery of
dead body at the behest of the accused-appellant and evidence of a
witness who saw the accused carrying a bag on a bicycle which was thrown
to a pond and after throwing the bag to the pond the accused returning
by bicycle. The severed head was recovered from the bag thrown to the
pond. Information was given to police, investigation was undertaken.
All the three accused persons were tried for offences punishable under
Sections 302 and 201 of the Indian Penal Code, 1860 (for short ‘the
IPC‘). The appellant was found guilty for both the accusations and was
sentenced to death for the former and 7 years rigorous imprisonment for
the latter. Benefit of doubt was, however, given to the co-accused and
they were acquitted. Reference was made by the trial Judge i.e. the
First Additional Sessions Judge, Jamtara for confirmation of death
sentence under Section 366 of the Code of Criminal Procedure, 1973 (in
short ‘the Code’) by the Jharkhand High Court which by the impugned
judgment upheld both the convictions and sentence. It was held that the
murder was gruesome and death sentence was most appropriate sentence.
Against the said judgment the present appeal has been filed. While
granting leave, by order dated 4.8.2003 scope of appeal was limited to
the question of sentence.
Mr. Anil Kumar Mittal, learned amicus curiae submitted that even
according to prosecution killing was not done with any motive. Though
superstition is not expected and encouraged in modern society, yet an
illiterate and tribal born and brought up in an atmosphere surcharged
with superstition should not be awarded death sentence. The modern
trend, according to him, is reformation and when in the case at hand
balance sheet of aggravating and mitigating circumstances is drawn up,
the mitigating circumstances far outweigh the aggravating situation and,
therefore, the death sentence should be altered to life sentence.
In response, learned counsel for the respondent-State submitted
that a 9 years old child was sacrificed in the most brutal and diabolic
manner. This is a case which falls within the “rarest of rare”
category and, therefore, death sentence has been rightly awarded. It
was pointed out that it is not the first instance when the accused is
charged with commission of such offences. In fact, as records reveal,
the appellant along with two of his relatives was facing trial at the
relevant time for committing murder by sacrificing of his own brother
before Goddess Kali.
Section 302 IPC prescribes death or life imprisonment as the
penalty for murder. While doing so, the Code instructs the court as to
its application. The changes which the Code has undergone in the last
three decades clearly indicate that Parliament is taking note of
contemporary criminological thought and movement. It is not difficult to
discern that in the Code, there is a definite swing towards life
imprisonment. Death sentence is ordinarily ruled out and can only be
imposed for “special reasons”, as provided in Section 354(3). There is
another provision in the Code which also uses the significant expression
“special reason”. It is Section 361. Section 360 of the Code re-
enacts, in substance, Section 562 of the Criminal Procedure Code, 1898
(in short “the old Code”). Section 361 which is a new provision in the
Code makes it mandatory for the court to record “special reasons” for
not applying the provisions of Section 360. Section 361 thus casts a
duty upon the court to apply the provisions of Section 360 wherever it
is possible to do so and to state “special reasons” if it does not do
so. In the context of Section 360, the “special reasons” contemplated
by Section 361 must be such as to compel the court to hold that it is
impossible to reform and rehabilitate the offender after examining the
matter with due regard to the age, character and antecedents of the
offender and the circumstances in which the offence was committed. This
is some indication by the legislature that reformation and
rehabilitation of offenders and not mere deterrence, are now among the
foremost objects of the administration of criminal justice in our
country. Section 361 and Section 354(3) have both entered the statute
book at the same time and they are part of the emerging picture of
acceptance by the legislature of the new trends in criminology. It
would not, therefore, be wrong to assume that the personality of the
offender as revealed by his age, character, antecedents and other
circumstances and the tractability of the offender to reform must
necessarily play the most prominent role in determining the sentence to
be awarded. Special reasons must have some relation to these factors,
Criminal justice deals with complex human problems and diverse human
beings. A Judge has to balance the personality of the offender with the
circumstances, situations and the reactions and choose the appropriate
sentence to be imposed.
It should be borne in mind that before the amendment of Section
367(5) of the old Code, by the Criminal Procedure Code (Amendment) Act,
1955 (26 of 1955) which came into force on 1.1.1956, on a conviction for
an offence punishable with death, if the court sentenced the accused to
any punishment other than death, the reason why sentence of death was
not passed had to be stated in the judgment. After the amendment of
Section 367(5) of the old Code by Act 26 of 1955, position is clear that
the normal penalty is imprisonment for life. It can be awarded in the
presence of extenuating circumstances which reduce the gravity of the
offence. The matter is left, after the amendment, to the discretion of
the court. The court must, however, take into account all the
circumstances, and state its reasons for whichever of the two sentences
it imposes in its discretion. Therefore, the former rule that the
normal punishment for murder is death is no longer operative and it is
now within the discretion of the court to pass either of the two
sentences prescribed in this section; but whichever of the two sentences
he passes, the Judge must give his reasons for imposing a particular
sentence. The amendment of Section 367(5) of the old Code does not
affect the law regulating punishment under IPC. This amendment relates
to procedure and now courts are no longer required to elaborate the
reasons for not awarding the death penalty; but they cannot depart from
sound judicial considerations preferring the lesser punishment.
Section 354(3) of the Code marks a significant shift in the
legislative policy underlying the old Code as in force immediately
before 1.4.1974, according to which both the alternative sentences of
death or imprisonment for life provided for murder were normal
sentences. Now, under Section 354(3) of the Code the normal punishment
for murder is imprisonment for life and death penalty is an exception.
The court is required to state the reasons for the sentence awarded and
in the case of death sentence “special reasons” are required to be
stated, that is to say, only special facts and circumstances will
warrant the passing of the death sentence. It is in the light of these
successive legislative changes in the Code that the judicial decisions
prior to the amendment made by Act 26 of 1955 and again Act 2 of 1974
have to be understood.
This Court in Ediga Anamma v. State of A.P. (1974 (4) SCC 443) has
observed : (SCC pp. 453-54, para 26)
“26. Let us crystallize the positive
indicators against death sentence under Indian law
currently. Where the murderer is too young or too
old, the clemency or penal justice helps him. Where
the offender suffers from socio-economic, psychic or
penal compulsions insufficient to attract a legal
exception or to downgrade the crime into a lesser
one, judicial commutation is permissible. Other
general social pressures, warranting judicial notice,
with an extenuating impact may, in special cases,
induce the lesser penalty. Extraordinary features in
the judicial process, such as that the death sentence
has hung over the head of the culprit excruciatingly
long, may persuade the court to be compassionate.
Likewise, if others involved in the crime and
similarly situated have received the benefit of life
imprisonment or if the offence is only constructive,
being under Section 302, read with Section 149, or
again the accused has acted suddenly under another’s
instigation, without premeditation, perhaps the court
may humanely opt for life, even like where a just
cause or real suspicion of wifely infidelity pushed
the criminal into the crime. On the other hand, the
weapons used and the manner of their use, the
horrendous features of the crime and hapless,
helpless state of the victim, and the like, steel the
heart of the law for a sterner sentence. We cannot
obviously feed into a judicial computer all such
situations since they are astrological imponderables
in an imperfect and undulating society. A legal
policy on life or death cannot be left for ad hoc
mood or individual predilection and so we have sought
to objectify to the extent possible, abandoning
retributive ruthlessness, amending the deterrent
creed and accenting the trend against the extreme and
irrevocable penalty of putting out of life.”
In Bachan Singh v. State of Punjab (1980 (2) SCC 684) it has been
observed that: (SCC p. 751, para 209)
“A real and abiding concern for the dignity of
human life 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
alternative option is unquestionably foreclosed.”
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 is
exercised. In order to apply these guidelines, inter alia, the following
questions may be asked and answered, (a) is there something uncommon
about the crime which renders sentence of imprisonment for life
inadequate and calls for a death sentence?; 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?
Another decision which illuminatingly deals with the question of
death sentence is Machhi Singh v. State of Punjab (1983 (3) SCC 470).
In Machhi Singh (supra) and Bachan Singh (supra) cases the
guidelines which are to be kept in view when considering the question
whether the case belongs to the rarest of the rare category were
indicated.
In Machhi Singh case (supra) it was observed: (SCC p. 489, para
39)
The following questions may be asked and answered as a test to
determine the “rarest of the rare” case in which death sentence can be
inflicted:-
(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?
The following guidelines which emerge from Bachan Singh case
(supra) will have to be applied to the facts of each individual case
where the question of imposition of death sentence arises: (SCC p. 489,
para 38):-
(i) The extreme penalty of death need not be inflicted
except in 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 an 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 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 is exercised.
In rarest of rare cases when collective conscience of the
community is so shocked that it will expect the holders 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 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 a cold-blooded murder for gains of a person
vis-`-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 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 is an innocent child, or a
helpless woman or old or infirm person or a person vis-`-vis whom
the murderer 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.
A convict hovers between life and death when the question of
gravity of the offence and award of adequate sentence comes up for
consideration. Mankind has shifted from the state of nature towards a
civilized society and it is no longer the physical opinion of the
majority that takes away the liberty of a citizen by convicting him and
making him suffer a sentence of imprisonment. Award of punishment
following conviction at a trial in a system wedded to the rule of law is
the outcome of cool deliberation in the court room after adequate
hearing is afforded to the parties, accusations are brought against the
accused, the prosecuted is given an opportunity of meeting the
accusations by establishing his innocence. It is the outcome of cool
deliberations and the screening of the material by the informed man i.e.
the Judge that leads to determination of the lis.
The principle of proportion between crime and punishment is a
principle of just desert that serves as the foundation of every criminal
sentence that is justifiable. As a principle of criminal justice it is
hardly less familiar or less important than the principle that only the
guilty ought to be punished. Indeed, the requirement that punishment
not be disproportionately great, which is a corollary of just desert, is
dictated by the same principle that does not allow punishment of the
innocent, for any punishment in excess of what is deserved for the
criminal conduct is punishment without guilt.
The criminal law adheres in general to the principle of
proportionality in prescribing liability according to the culpability of
each kind of criminal conduct. It ordinarily allows some significant
discretion to the Judge in arriving at a sentence in each case,
presumably to permit sentences that reflect more subtle considerations
of culpability that are raised by the special facts of each case.
Judges in essence affirm that punishment ought always to fit the crime;
yet in practice sentences are determined largely by other
considerations. Sometimes it is the correctional needs of the
perpetrator that are offered to justify a sentence. Sometimes the
desirability of keeping him out of circulation, and sometimes even the
traffic results of his crime. Inevitably these considerations cause a
departure from just desert as the basis of punishment and create cases
of apparent injustice that are serious and widespread.
Proportion between crime and punishment is a goal respected in
principle, and in spite of errant notions, it remains a strong influence
in the determination of sentences. Anything less than a penalty of
greatest severity for any serious crime is thought to be a measure of
toleration that is unwarranted and unwise. But in fact quite apart from
those considerations that make punishment unjustifiable when it is out
of proportion to the crime, uniformly disproportionate punishment has
some very undesirable practical consequences.
A bare look at the fact situation of this case shows that the
appellant was not possessed of the basic humanness and he completely
lacks the psyche or mind set which can be amenable for any reformation.
He had at the time of occurrence a child of same age as the victim and
yet he diabolically designed in a most dastardly and revolting manner to
sacrifice a very hapless and helpless child of another for personal gain
and to promote his fortunes by pretending to appease the deity. The
brutality of the act is amplified by the grotesque and revolting manner
in which the helpless child’s head was severed. Even if the helpless and
imploring face and voice of the innocent child did not arouse any trace
of kindness in the heart of the accused, the non-challant way in which
he carried the severed head in a gunny bag and threw it in the pond
unerringly shows that the act was diabolic of most superlative degree in
conception and cruel in execution. The tendency in the accused and for
that matter in any one who entertains such revolting ideas cannot be
placed on par with even an intention to kill some but really borders on
a crime against humanity indicative of greatest depravity shocking the
conscience of not only any right thinking person but of the Courts of
law, as well. The socially abhorrent nature of the crime committed also
ought not to be ignored in this case. If this act is not revolting or
dastardly, it is beyond comprehension as to what other act can be so
described is the question. Superstition is a belief or notion, not
based on reason or knowledge, in or of the ominous significance of a
particular thing or circumstance, occurrence or the like but mainly
triggered by thoughts of self aggrandizement and barbaric at times as in
the present case. Superstition cannot and does not provide justification
for any killing, much less a planned and deliberate one. No amount of
superstitious colour can wash away the sin and offence of an unprovoked
killing, more so in the case of an innocent and defenceless child.
Criminal propensities of the accused are clearly spelt out from
the fact that similar accusations involving human sacrifice existed at
the time of trial. Though the result could not be brought on record, yet
the fact that similar accusation was made against the accused-appellant
for which he was facing trial cannot also be lost sight of. In view of
the above position, we do not think this to be a fit case where any
interference is called for, looking to the background facts highlighted
above. This in our view is an illustrative and most exemplary case to be
treated as the ‘rarest of rare cases’ in which death sentence is and
should be the rule, with no exception whatsoever. Appeal fails and is
dismissed.
We record our appreciation for the fair presentation and
assistance rendered by Mr. Anil Kumar Mittal, learned amicus curiae and
Mr. A.T.M. Rangaramanujam, learned Senior Counsel for the respondent-
State who very ably highlighted the legal principles revolving round the
question of death sentence.
