JUDGMENT
D.S.R. Varma, J.
1. Heard Sri C. Padmanabha Reddy, learned senior Counsel appearing for the appellant-accused and the learned Public Prosecutor appearing for the respondent-State.
2. Since both the referred trial and the criminal appeal are inter-related and arise out of the same judgment, dated 24-07-2007, passed in S.C. No. 51 of 2006, they are being heard together and disposed of by this common judgment.
3. Aggrieved by the judgment, dated 24-07-2007, in S.C. No. 51 of 2006, passed by the VI Additional District and Sessions Judge (Fast Track Court), Tirupati, Chittoor District, convicting the accused for the offence punishable under Section 302 of Indian Penal Code (I.P.C.) and sentencing him to death with the direction that he be hanged by the neck till he is dead subject to confirmation by this Court, Criminal Appeal No. 1018 of 2007 has been filed by the accused challenging the conviction and imposition of capital punishment of death, whereas R.T. No. 2 of 2007 has been filed by the Referring Officer-VI Additional District and Sessions Judge (Fast Track Court), Tirupathi, for confirmation of the death sentence passed against the accused in the above case.
4. The facts, in brief, are that the deceased viz., Annuru Kalpana was studying II year M.L.T. Course in Government Degree College, Puttur and the accused was studying II year B.Sc., (BZC) in the same college. The deceased failed in certain subjects and when the accused was informed about the failure of the deceased in certain subjects, he allegedly promised her that he would arrange for her passing in those subjects and in that pursuit, he took the deceased to Tirupati.
5. While the things stood thus, the deceased, allegedly, was in love with one Aruna, who happened to be his relative and a student of Junior College at Srikalahasti. In order to appease her by way of giving some gift, he promised her in that regard and was, in fact, in search of sufficient money for the said purpose. In that process, he found the deceased from whom he wanted to snatch away the gold bangles and other ornaments on her body. Since the same was not possible with her consent, he took the opportunity of her request and taken her to Tirupati. At Tirupati, the accused made the deceased to take rest in a hotel viz., R.K. Rest House. Since the owners (PWs.5 and 6) of R.K. Rest House did not permit both the accused and the deceased to take rest in the same room, he left her alone in the hotel for booking a lodge. Since he had no money, the deceased gave her gold ring to be pledged and to get some money. Accordingly, he pledged the gold ring with PW-7 and brought some money. The deceased also gave a sum of Rs. 1,000/- to the accused. On the next day i.e., 04-11-2004, both the accused and the deceased boarded the Bus at Tirupati while proceeding to Railway Kodur and when the bus reached near Kukkaladoddi Forest area situated by the side of Renigunta – Kadapa main road, both of them got down the bus near a hotel after making request with the conductor. At that point of time, he took her to the forest area on the pretext of attending the calls of nature and asked the deceased to accompany him to the forest on the ground that if she stood alone on the road, she would be identified. On that pretext, he took her into the forest and attacked her with a boulder and gave blows on her head due to which she received grievous injuries, but she did not die. Perhaps, thinking that she died, he had taken away her gold bangles and other ornaments.
6. It is also pertinent to mention here that this fact of the accused going along with the deceased was allegedly first noticed by PW-2 and after the attack, while he was coming back on to the road, his clothes were blood-stained and the same was informed to PW-3 and another, since the accused was not answering properly and found in perturbed mood. Consequently, all of them, particularly PWs-2 and 3, took the accused to the hotel of the said Prasad at Kukkaladoddi, where they found PW-1, Panchayat Secretary of neighbouring village and the accused was presented before him. Upon being questioned by PW-1, the accused allegedly narrated the events, in detail, and the same had been recorded by PW-1 and informed the same to PW-24 – Sub Inspector of Police, Renigunta, and upon such information PW-24 arrived at the hotel of the said Prasad at around 5-15 p.m., and PW-1 gave report Ex.P-1. Later investigation was set in motion. Upon being questioned by all of them, the accused took PWs-1, 2, 3 and 24 to the place of occurrence, where, for the first time, all the witnesses PWs-1, 2, 3 and 24 found the deceased with grievous injuries. Immediately, she was shifted to SVIMS Hospital at Tirupati for treatment. During the course of treatment, the deceased died on 07-11-2004 and the death intimation was made on 08-11-2004. After following the other formalities, the crime was registered and investigation had taken place.
7. The accused pleaded not guilty for the charges framed against him under Section 302 and 394 I.P.C., and claimed to be tried.
8. The prosecution in an attempt to substantiate its case, examined PWs. 1 to 26 and got marked Exs. P-1 to P-54 and M.Os.1 to 16. On behalf of the accused Ex. D-1 was marked.
9. The Court below, having considered the entire material on record, including evidence, both oral and documentary, had arrived at the conclusion that the accused was responsible for the death of the deceased and having regard to the facts and circumstances, having felt that this was a rarest among rare cases, imposed the capital punishment. However, as against the case registered against the accused for the other offence committed under Section 394 of I.P.C., acquittal was recorded. Being aggrieved by the judgment of conviction and sentence passed by the Court below, the accused preferred the present appeal.
10. The point for consideration in this appeal is as to whether the Court below was right in appreciating the evidence on record before arriving at the conclusion that the accused was responsible for the death of the deceased and imposing the punishment of death penalty.
11. In this connection, it is to be seen that the present case is the one solely based on circumstantial evidence. The important evidence is that of PWs-1, 2, 3, 5, 6, 7 and 24, and the important document to be taken note of is Ex. P-1 report prepared by PW-1 with all the details as confessed by the accused in the presence of PWs-2, 3 and others.
12. It is essential to examine the oral evidence of PWs-1, 2 and 3, initially.
13. As per the evidence of PW-1, he stated that on 04-11-2004 he saw the accused at about 3-00 p.m., near the hotel of one Prasad situated at Balapalle village No. 1, that he was working as Panchayat Secretary of the said village, that while he was at the hotel of the said Prasad at about 3-45 p.m., PW-2 and two others brought the accused to him and he noticed the accused wearing blood- stained shirt and trouser. He further stated that he was informed by PW-2 that the accused and one girl, wearing white dress, went into the forest situated by the side of Renigunta road and sometime thereafter he noticed the accused alone coming from the forest and that since the accused did not give any proper reply, he was produced before him. He further stated that the accused confessed before him, that he was responsible for the death of the deceased and he elaborated the method and manner in which he attacked the deceased. He stated that the deceased was aged about 21 years and further stated that as was confessed by the accused regarding the love affair with one of his relatives, by name Aruna, and taking advantage of the failure of the deceased in certain subjects, he took her to Tirupati to make arrangements to pass in those subjects. He further stated that the accused confessed before him and other witnesses, in that process he had taken Rs. 1,000/- from the deceased. All the details, as furnished by the accused, have been reduced into writing and thereafter he informed the police of Renigunta and upon such information, PW-24 came to the hotel where PW-1 was waiting along with the accused and other witnesses. After the arrival of the police, PW-1 handed over Ex.P-1 report, which contains all the details, as confessed by the accused. Subsequently, upon the confession made by the accused, PWs-1, 2, 3 and 24 along with others went to the scene of offence, as was guided by the accused, where the deceased was found in a pool of blood with multiple injuries. Along with Ex.P-1 report, several other exhibits, like Ex.P-2 – Out pass of Velrams A/c. Theatre, Tirupathi; Ex.P-3 – Ticket of Sandhya Theatre, Tirupati; Ex.P-4 – ticket of R.T.C. Bus, Ex.P-5 – another R.T.C. ticket etc., were produced.
14. Ex. P-11 is the original of Intermediate Pass Certificate and Ex.P-12 is the original of S.S.C. Marks. M.O. 1 is the gold chain and M.O. 2 is a pair of bangles of the deceased, which were surrendered by the accused.
15. In the cross-examination, PW-1 stated that the police examined him on the same day near the scene of offence and it was at about 5-00 or 6-00 p.m. He further stated that prior to the present post, he worked as Village Development Officer of Gangadhara Nellore Village of Chittoor District. Even on the date of occurrence, he was working as Panchayat Secretary of neighbouring village and the place of offence at Kukkaladoddi Forest is situated at a distance of 6 kms. from Mamundur village. Nothing could be elicited in support of the case of the defence.
16. PW-2, who is a resident of Kukkaladoddi village, also stated in the same lines, as was spoken to by PW-1, except a couple of omissions to the effect that PW-1 did not state in his earlier statement recorded under Section 161(3) Cr.P.C., that the accused led the witnesses to the place of occurrence.
17. The learned senior Counsel for the accused contended that this is a vital omission. But, we cannot agree with the said contention.
18. After all, the earlier statement is only a statement recorded under Section 161(3) Cr.P.C., which has its own limitations. It is settled law that the statement recorded earlier under Section 161(3) Cr.P.C., cannot be used for any other purposes other than for contradiction during the course of examination of the witnesses.
19. However, in this context, it is to be seen that PW-24, who is the investigating officer, deposed that it is only at the instance of the accused, all the witnesses i.e., PWs-1, 2 and 3 along with the accused went to the scene of offence. Therefore, though it is an omission on the part of PW-1 in not stating about what he had stated in his earlier statement recorded under Section 161(3) Cr.P.C., the same has been corroborated by the evidence of PW-24 and the other witnesses i.e., PWs. 2 and 3. Therefore, we are of the considered view that this omission is neither vital in the present context, nor capable enough of demolishing or destabilizing the evidence of PWs-1 and 2.
20. At this juncture, we want to deal with another contention of the learned senior Counsel for the accused to the effect that Ex.P-1 report, which is so elaborate with all minuscule details, is something unusual. It is his contention that it might have been recorded at the instance of the police in the police station, but not at the hotel, in the presence of the other witnesses.
21. This contention also though appears to be initially appealing, is not sufficient to demolish or deteriorate the quality of the evidence of PW-1 and is not capable of vitiating the evidentiary value of Ex.P-1 – report.
22. Even assuming that PW-1 had recorded the statement of accused and gave complaint Ex-P.1 to the police, in normal course, the same may not necessarily be relevant in all cases. But, in the present case, it gains much vitality and relevance, inasmuch as, the said statement contains the alleged extra-judicial confessions made by the accused himself. However, we want to test with the evidence of PWs-2, 3 and 24.
23. As already noticed, PW-3 also deposed almost in the same lines, as was deposed by PW-1 and there was no denial of the fact of recording the statement of extra-judicial confession made by the accused by PW-1 even before the arrival of the police.
24. The cumulative effect of these three witnesses, who have nothing to do with the accused, can as well be treated as ‘absolute independent witnesses’ and there is no reason whatsoever on record to disbelieve the evidence of PWs. 1, 2 and 3 and regarding Ex.P-1 i.e., extra-judicial confession made by the accused even before arrival of the police.
25. Added to the above, PW-24, Sub Inspector of Police, Nagari, had further corroborated the evidence of PWs-1, 2 and 3.
26. The above discussion deals with the recording of extra-judicial confession and its veracity. As already expressed by us, there is any amount of material on record in order to show that the accused had made statement in the presence of PWs-1, 2 and 3, and the same had been reduced into writing by PW-1, which amounts to extra-judicial confession and the same, in our considered view, remains unimpeachable.
27. So far as the contention of the learned senior Counsel that Ex.P-1 – report cannot be believed, inasmuch as, it contains all minute details running into several pages and recording such voluminous complaint is improbable is concerned, we are of the view that mere volume of the report with all minute details does not vitiate or degrade the evidentiary value of Ex.P-1 – report.
28. Furthermore, as already noticed, the above aspect of recording of extra-judicial confession made by the accused, it was found by PWs-1, 2 and 3 and also PW-24 – investigating officer that the accused was found with clothes smudged with blood.
29. It is to be further seen, in this regard, that PWs-2 and 3 together noticed the accused coming from Kukkaladoddi Forest after the assault committed by him on the deceased with his clothes blood-stained. Therefore, this is one strong circumstance against the accused and in favour of the prosecution.
30. Further, PW-5, who was working as Manager-cum-Room Boy in R.K. Rest House, at the relevant point of time, where the deceased was lodged, stated that he saw the accused came along with a girl to the lodge. He further stated that subsequently he participated in the Test Identification Parade and identified the accused as the person, who came to the lodge along with the deceased girl. In the cross-examination, nothing useful could be elicited contrary to the case of prosecution and there is no much controversy about the manner in which the Test Identification Parade was conducted.
31. So also PW-6, who is the owner of R.K. Rest House, stated almost to the same effect, as deposed by PW-5, which establishes the presence of the accused along with the girl in the lodge. He also participated in the unblemished Test Identification Parade where the accused was identified by him.
32. PW-7, who is the owner of STD Booth, is another witness, spoke about the fact that the accused made a phone call on 03-11-2004 at about 11-00 a.m.
33. From the above evidence of PWs-5, 6 and 7, together with the evidence of PWs. 2 and 3, it is obvious that the accused was in the company of a girl.
34. What further emerges is that the accused led all the witnesses i.e., PWs. 1, 2, 3 and 24 to the scene of offence where the deceased was found with grievous injuries. It is to be noticed, but for the revelation made by the accused, it is not possible for PWs-1, 2, 3 and 24 to go to the scene of offence. Even if there is any chance, the same is available only to PWs-2 and 3, who saw the accused going into the forest along with the deceased girl and coming out all alone with his clothes blood-stained. But, so far as identification of the deceased is concerned, it is to be noticed that the same is possible only with the cooperation of the accused as stated in his extra-judicial confession in Ex.P-1, which is rather unimpeachably admissible as contemplated under Section 27 of the Indian Evidence Act, 1872.
35. Compilation of the entire evidence, which has been discussed, would only show that the accused alone had the chance of attacking the deceased, since from the beginning, he alone was found in the company of the deceased, who was identified as Ms. Kalpana by the person, who is no other than the accused only.
36. The other omission pointed out by the learned senior Counsel appearing for the accused is as regards non-showing of photographs of the deceased to PW-1 and other witnesses. No doubt, it is an important event, but not that much important as could vitiate or demolish the successful investigation and the evidence of the witnesses, explaining all the circumstances.
37. Therefore, we are of the considered view that the accused has been surrounded by all the circumstances sufficient to suggest that he is the only person who is responsible for the death of the deceased. There is no opportunity to any other person except the accused to commit such a violent attack on the deceased.
38. Accordingly, we confirm the finding recorded by the Court below that the accused is guilty for the offence punishable under Section 302 I.P.C.
39. Coming to the sentence imposed i.e., capital punishment, at the outset, we are of the view that this cannot, by any stretch of imagination, be treated as ‘rarest among rare cases’.
40. Various parameters were suggested by the apex Court in Bachan Singh v. State of Punjab and time and again followed by various other judgments, including the latest one in Union of India v. Devendra Nath Rai .
41. Incidentally, we may also take notice of the fact that, after all, the accused had resorted to this heinous offence, allegedly, only to appease his girl friend. Of course, this fact is also not established. No other evidence, except the physical assault, which is sufficient to cause death, has been committed against the deceased and the accused also is a common man, who would easily fell into weaknesses, which may lead somebody to commit this kind of offences. We are clear in our mind that these circumstances are not very relevant in normal course, in all cases, but, at the same time, cannot also be ignored in cases where death penalty is imposed.
42. Taking cue from the observations and discussion on the aspect of
‘death penalty’ in Bachan Singh’s case , various other cases have been dealt with by the apex Court on the subject of imposition of death penalty and the circumstances therefor. In a recent judgment in Devendra Nath Rai’s case , the apex Court has reiterated several observations made in Machhi Singh v. State of Punjab Devender Pal Singh v. State of NCT of Delhi . Some of portions in the said case were extracted in Devendra Nath Rai’s case .
43. The apex Court had expressed a view consistently that the life imprisonment is a rule and death sentence is an exception. Only when life imprisonment appears to be inadequate then only basing on the over all facts and circumstances ‘death penalty’ has to be imposed.
44. Certain mitigating circumstances were also taken into consideration in Bachan Singh’s case , as suggested by Dr. Chitaley, which are as under:
Dr. Chitaley has suggested these mitigating factors : mitigating circumstances : In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances : (1) That the offence was committed under the influence of extreme mental or emotional disturbance. (2) The age of the accused. If the accused is young or old, he shall not be sentenced to death. (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated. The State shall be evidence prove that the accused does not satisfy the conditions 3 and 4 above. (5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence. (6) That the accused acted under the duress or domination of another person. (7) 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.
45. The circumstances under which the imposition of death penalty has to be considered or not, are extracted in the above cases, which are as under for ready reference:
6. Similarly in Machhi Singh’s case in para 38 the position was summed up as follows : (SCC p.489)
38. In this background the guidelines indicated in Bachan Singh case will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh case:
(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. In other words 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.
7. The position was again reiterated in Devender Pal Singh v. State of NCT of Delhi
58. From Bachan Singh v. State of Punjab and Machhi Singh v. State of Punjab principle culled out is that when the 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, the same can be awarded. It was observed:
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 around 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-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.
46. The age of the accused is one factor that has to be taken into account. In the present case, the accused as on the date of committing the offence, was aged about 21 years and apparently he was a young man with emotions, unworkable passions and infatuations. Opportunity to live if given there is every possibility that he would be remorse to over a period of time. We are of the considered view that this chance cannot be ruled out. It is to be further noted that he had inflicted grievous injuries starting with an intention not to kill the deceased but only to steal the gold ornaments on the body of the deceased and obviously having found not possible when she was alive he committed a grave assault on her by thrashing her with a boulder on her head. The immediate eventuality was not the death of the deceased. She was grievously injured.
But, the accused undoubtedly had the knowledge that those injuries are sufficient to cause the death of deceased. He took advantage of her immobility because of the serious injuries and snatched away the ornaments from the person of the deceased and fled away. Therefore, we are of the view that the determination which occupied the front seat was to take away the ornaments at any cost from the deceased and killing was his only and immediate option.
47. If that be the case, it cannot be said that the offence of the present young man with the kind of weaknesses or unwanted passions that he was suffering from, do not call for imposition of extreme penalty; nor his act of killing the deceased, as such, is a harm to the society. No doubt, people may take it as an act of abhorrent brutality. Therefore, if we wish to strike a balance between the offence and the sentence, our considered view is that the sentence is slightly overweighing with the offence.
48. Hence, for the foregoing, we are of the view that the sentence of imprisonment for life is an adequate substitute to the death penalty imposed on the appellant.
49. In the result, the order under R.T. No. 2 of 2007 is rejected and accordingly set aside and the Criminal Appeal No. 1018 of 2007 is allowed, in part, modifying the sentence of death penalty into one to undergo ‘imprisonment for life’.
