The Metropolitan Sessions Judge, Vijayawada,
Referring Judge V. Bolem Srinivasa Rao Alias Sreenu, Accused.
DATE : 16-06-1992
1992-(098)-CRLJ -3027 -AP
JUDGE(S) :
Motilal B Naik
Syed Shah Mohammed Quadri
ANDHRA PRADESH HIGH COURT
JUDGMENT
SYED SHAH MOHAMMED QUADRI, J. :- The sole accused in Sessions
Case No. 9 of 1991 on the file of the Metropolitan Sessions Judge,
Vijayawada, was tried for the offence under S. 302, I.P.C. for
committing the murder of Bolem Sai Babu, hereinafter referred
to as 'the deceased', at about 4.30 p.m., on 14, April 1991 when
the deceased was about to tap toddy from the palmyra tree of Bolem
Raghavulu which is situated on the irrigation channel bund near
the field of Kolli Ramakrishna Rao of Mudunuru village. On 23-3-1992
the learned Metropolitan Sessions Judge convicted the accused
of the said offence, sentenced him to death by hanging and referred
the case to this Court for confirmation of the sentence.
2. The accused filed Criminal Appeal No. 292 of 1992 against the
judgment of the learned Metropolitan Sessions Judge, dated 23-3-1992.
The accused will hereinafter be referred to as 'the appellant'.
3. The case of the prosecution is that there is a co-operative
society of tappers in Mudunur village. The appellant and one Raghavulu
were among its 14 members and the deceased was the President of
the said society. The appellant is a close relative of the deceased.
The said Raghavulu left the village for eking out his livelihood
in Hyderabad city and thus stopped tapping. According to the Bye-laws
of the society, if any of the members stops tapping of palmyrah
trees, the other members have to share the trees. But the deceased
who was the President of the society was tapping the trees of
Raghavulu without distributing them among other members. The appellant
questioned the deceased about his action in tapping the trees
of Raghavulu exclusively on 1-4-1991; but the deceased kicked
him and tried to stab him with a knife. On 4-4-1991 at about 4.30
p.m. when the deceased was about to tap the tree of the said Raghavulu,
bearing No. 16/23/24, which was situated on irrigation channel
bund near the field of Kolli Ramakrishna Rao of Mudunuru village,
the appellant objected to the tapping of the trees. That resulted
in a quarrel between them. The appellant gave a blow with a "Tunagala
Karra" on the head of the deceased. He became unconscious
and fell down. Then the appellant severed the head of the deceased
from the trunk with a tapper's knife (M.O. 20) and carried it
with him on a cycle to the village. Near his house the appellant
feel down where he placed the head of the deceased. He left the
cycle after locking it there, proceeded to P.S. Vuyyur and reported
the matter to the Inspector of Police (P.W. 14) who was camping
at P.S. Vuyyur. He surrendered himself along with blood-stained
knife (M.O. 20), P.W. 14 recorded the report Ex. P.21 and sent
a copy of the F.I.R. to the Magistrate P.W. 14 conducted one inquest
at the place where the trunk of the deceased was lying and examined
P.Ws. 1, 2, 4 and 6. P.W. 8 is the inquest Panchayatdar. Ex. P4
is the inquest report in respect of the trunk of the deceased.
He also conducted another inquest at the place where the head
of the deceased was lying and examined P.Ws. 2, 4, 5 and 7. Ex.
P3 is the inquest report in respect of head of the deceased. P.W.
14 sent the head and the trunk of the deceased for post-mortem
to P.W. 9, the Assistant Professor, Forensic Medicine, Sidhartha
Medical College. P.W. 9 conducted autopsy over the body of the
deceased and issued the post mortem certificate Ex. P.7. After
completing investigation, P.W. 14 filed the charge-sheet.
4. The plea of the appellant was one of denial.
5. The prosecution examined P.Ws. 1 to 14 and marked Exs. P.1
to P. 14. M.Os. 1 to 20 were also marked. No witness was examined
for defence. However Ex. D.1 was marked in the statement of P.W.
6 recorded under section 161, Cr.P.C.
6. The learned Sessions Judge relied on the evidence of P.Ws.
2, 3 and 6 and the medical evidence, i.e., the evidence of P.W.
9 and the post-mortem certificate Ex. P.7, and the conduct of
the appellant and found him guilty under section 302, I.P.C.,
for committing the murder of the deceased. After questioning the
appellant under section 235(2), Cr.P.C. he sentenced him to death.
7. Sri T. Bali Reddy, the learned counsel for the appellant, submits
that there were no eye witnesses to the occurrence and the evidence
on record is not sufficient to establish the guilt of the accused
and the conviction is not based on any legal evidence.
8. The learned Public Prosecutor, on the other hand, contends
that the evidence produced by the prosecution is unimpeachable,
there are sufficient circumstances which point to the guilt of
the appellant and, therefore, the conviction recorded is unassailable.
9. It is true that there are no eye-witnesses to the occurrence.
The evidence is circumstantial. P.Ws. 2, 3 and 6 are material
witnesses. P.W. 2 is the resident of the same village. She is
an agricultural cooly and knows both the appellant as well as
the deceased. She says that when she was cutting grass on the
day of Srirama Navami, the elder brother of the appellant came
and stated to the appellant (matter in vernacular omitted.) Hearing
this, she raised her head and saw the accused carrying the head
of the deceased in his hand. In cross examination she states that
the brother of the accused uttered the above mentioned words from
the place where the accused was found. She identified the accused.
Nothing was elicited in her cross-examination to discredit her
testimony. P.W. 3 is also a resident of the same village. She
says that while she was preparing 'Kallam' in her field which
is by the side of the land of Kolli Ramakrishna Rao, she heard
the voice of the deceased. Thinking that he was scolding somebody,
she proceeded to the irrigation 'Bode' for taking water and heard
the cry "(matter in vernacular omitted.)". There she
saw the appellant carrying away the head of the deceased. He was
going towards the mango trees on the way which leads to the village.
She is an educated lady, having studied P.U.C. in Visakhapatnam.
The only criticism against this witness is that she saw the accused
from behind; but she was emphatic that she recognised the accused
though she saw him from behind. We do not see any reason to disbelieve
her. As she is also a resident of the same village, it is not
difficult for her to recognise the accused from behind.
10. Here we may also refer to the evidence of P.W. 4 who is the
wife of the deceased. She says that the appellant and the deceased
beat each other and the elders separated them. This is incident
of 1-4-1991. She also says that appellant stated that he would
kill her husband. That on Srirama Navami day at 4 p.m., the deceased
went out of the house for tapping trees and that at about 5 p.m.,
she came to know that the appellant brought the head of deceased
and kept at his (appellant's) house; she saw the head of the deceased
near the threshold of the appellant's house and from there she
went to the field of Kolli Krishnayya where the palmyrah tree
was situated on a mound and she found the trunk of the deceased
near the palmyrah tree. She identified M.Os. 1 to 7 as belonging
to the deceased.
11. P.W. is a neighbour of the accused-appellant. Her house is
4 or 5 houses away from the house of the appellant, on the other
side of the road. She says that she saw the accused carrying the
head of the deceased in his hand and that having identified the
head of the deceased she became unconscious and fell down. Nothing
is pointed out to us in the evidence of this witness to disbelieve
her testimony.
12. From the evidence discussed above, the following facts emanate.
The deceased went to tap the palmyrah tree near the field of Kolli
Krishnayya; the appellant was found there and his brother accosted
him saying that he brought disrepute to the family by committing
this ghastly act; immediately thereafter the appellant was found
carrying the head of the deceased from the palmyrah tree near
the field of Kolli Krishnayya where the trunk of the deceased
was lying; he carried to his house the head of the deceased and
kept it there; the appellant himself went to the police station,
Vuyyuru and gave the report Ex. P.21 and surrendered himself and
M.O. 20 among other articles which is a strong circumstance against
him.
13. Ex. P.21 contains the statement of the appellant to P.W. 14
a part of which is inculpatory and the other part exculpatory.
The statement contained therein refers to the fact that there
was a dispute with regard to the distribution of palmyra trees
of Raghavulu after he left the village, that on 1-4-1991 the deceased
and the appellant had a quarrel and that on 4-4-1991 while the
deceased was tapping a tree on the irrigation channel bund near
the field of Kolli Ramakrishna Rao, the appellant was threatened
by a knife by the deceased. It is contended by the learned Public
Prosecutor that these facts are admissions by the appellants and
are corroborated by the evidence of P.Ws. 2 and 3; therefore,
they are admissible in evidence and can be proved against the
appellant.
14. Ex P. 21 is the first information report given by the accused-appellant
to P.W. 14. It can be divided into four parts. The first part
deals with his identity. The second part contains admissions.
The third contains confession. The fourth part deals with surrender
of the appellant and blood-stained tapper's knife, carrying notes,
blood-stained sleevesless banian.
15. The evidence of conduct of the appellant in going to the police
station immediately after the incident and giving report is admissible
under section 8 of the Evidence Act. This position is not disputed.
So also there is no dispute that inculpatory statement of the
accused contained in Ex. P.21 is inadmissible as being hit by
Section 25 of the Evidence Act. The debate is about admissibility
of admissions of increminating facts in Ex. P.21. The learned
public Prosecutor contends that as the admissions made by the
accused in Ex. P.21 are severable and therefore that part of the
statement is admissible against the accused. Sri Bali Reddy, on
the other hand, contends that they are also confessions so inadmissible.
It needs no mention that the first information report in cognizable
cases is recorded under Section 154, Cr.P.C., by officer in charge
of a police station and that it is not substantive evidence. However,
it may be used to corroborate or contradict the informant under
Section 157 or 145 of the Evidence Act, as the case may be. Confession
is a species of admission. Confession is defined by the Supreme
Court as admission of the offence by a person charged with the
offence in A. Nagesia v. Bihar State, AIR 1966 SC 119 : 1966 Cri
LJ 100. It will be useful to bear in mind the following observations
of Lord Aktin in Pakala Narayanaswami v. Emperor, AIR 1939 PC
47 : (1939) 40 Cri LJ 364 :
".... a confession must either admit in terms the offence,
or at any rate substantially all the facts which constitute the
offence. An admission of a gravely incriminating fact, even a
conclusively incriminating fact, is not of itself a confession
........"
16. A first information report given by an accused is admissible
at the trial unless it contains confession of the accused. A first
information report containing admission of the accused is admissible
in evidence at the trial (see Fidda v. State of M.P., AIR 1964
SC 1850 : (1964 (2) Cri LJ 744). When the first information report
given by an accused contains statement both exculpatory and inculpatory,
the contention that the portion of the statement excluding culpatory
portion is admissible, cannot be accepted as the test of severability
is not approved by the Supreme Court in A. Nagia v. Bihar State,
(1st supra). Their Lordships observed at page 104 of Cri LJ :
"Now, a confession may consist of several parts and may reveal
not only the actual commission of the crime but also the motive,
the preparation, the opportunity, the provocation, the weapons
used, the intention, the concealment of the weapon and the subsequent
conduct of the accused. If the confession is tainted, the taint
attaches to each part of it. It is not permissible in law to separate
one part and to admit it in evidence as a non-confessional statement.
Each part discloses some incriminating fact, i.e., some fact which
by itself or along with other admitted or proved facts suggests
the inference that the accused committed the crime, and though
each part taken single may not amount to a confession, each of
them being part of a confessional statement partakes of the character
of a confession. If a statement contains an admission of an offence
not only that admission but also, even other admission of an incriminating
fact contained in the Statement is part of the confession".
It was held :
"We think that the separability test is misleading, and the
entire confessional statement is hit by S. 25 and save and except
as provided by S. 27 and save and except the formal part identifying
the accused as the maker of the report, no part of it could be
tendered in evidence".
17. In the instant case Ex. P.21 contains confessional statement
as well as admission of incriminating facts. Therefore the second
part, as stated above, which contains admission is not admissible
in evidence. Therefore, the said report Ex. P.21 cannot be looked
into for purposes of establishing the guilt of the accused. But,
as stated above, the conduct of the appellant in going to the
police station and surrendering himself and other material objects
including M.O. 20, is a strong circumstances against him.
18. Here we may read the evidence of the medical officer (P.W.
9) who on post-mortem examination of the deceased, found the following
injuries :-
1) Decapitation injury. The head and neck are completely severed
from the trunk at the level of the root of the neck. The edges
or the wound are clean cut with sub-cuticular bruising. Blood
clots are present in the wound. All the soft tissues structures,
the blood vessels and the trachea are cleancut.
2) Abrasion 7 cms x 4 cms left side of face, dark brown, no scab
formation.
3) Abrasion, 5 cms x 3 cms on the right side of the face, dark
brown, no scab formation.
4) Laceration of scalp measuring 5 cms x 2 cms x bonedeep, over
left parietal eminence, edges contused, linear in shape, long
axis in sagittal plave. Dull red in colour.
5) Fissure fracture of skull commencing at left parietal eminence
corresponding to injury No. 4, running obliquely forwards and
to the right up to the bregma and then along the coronal suture
on right side causing its separation extending to the lower limit
of coronal suture. The total length of the fracture is 18 cms.
The fracture is lined with blood.
6) Diffuse subdural and subarachnoid haemorrhage over both sides
of brain.
7) Contusion of brain over left parietal region, corresponding
to injury No. 4 measuring 6 cms x 4 cms.
The above injuries are stated to be ante-mortem in nature.
19. The evidence of P.W. 9 and Ex. P.9 corroborates the evidence
of P.Ws. 2, 3 and 6. The circumstantial evidence referred to above,
in our view, conclusively establishes the guilt of the appellant
and is inconsistent with any other hypothesis of innocence of
the appellant. For these reasons, we confirm the conviction of
the appellant for the offence charged by the learned Metropolitan
Sessions Judge, Vijayawada.
20. Now coming to the question of sentence, Sri Bali Reddy, the
learned counsel for the appellant, strenuously contends that the
learned Sessions Judge has gravely erred in awarding death sentence
to the accused; under the Code of Criminal Procedure, 1973 awarding
a death sentence is an exception, the normal rule is to award
life imprisonment; the legislature has taken care to see that
where death sentence is awarded special reasons should be given
and in the instant case the learned Sessions Judge has not given
any special reasons for awarding death sentence, therefore, the
punishment has to be altered to life imprisonment.
21. The learned Public Prosecutor contends that this is one of
those rarest of rare cases where the death sentence has rightly
been awarded; the appellant committed a gruesome act of severing
the head of the deceased while he was still alive, carried the
head to the village on his cycle; this is a barbarous act so the
sentence of death was, therefore, rightly awarded.
22. Section 302, I.P.C., provides punishment for murder. It reads
:
"302. Whoever commits murder shall be punished with death,
or imprisonment for life, and shall also be liable to fine".
The minimum punishment is imprisonment for life and the maximum
punishment is death. It is for the Court in its judicial discretion
to award the sentence, having regard to the circumstances of the
case, to meet the ends of justice.
23. In Bachan Singh v. State of Punjab, AIR 1980 SC 898 : 1980
Cri LJ 636, the Constitution Bench of the Supreme Court after
referring to Sections 354(3) and 235(2) of the Code of Criminal
Procedure, quoted the following two principles :-
"1) The extreme penalty can be inflicted only in gravest
cases of extreme culpability;
2) In making choice of the sentence, in addition to the circumstances
of the offence, due regard must be paid to the circumstances of
the offender also".
The Supreme Court also noted the aggravating circumstances as
preplanned, calculated, cold-blooded murder. If a murder is "diabolically
conceived and cruelly executed", it would justify the imposition
of the death penalty. 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. The Supreme Court further laid down 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.
It further observed that the relative weight to be given to the
aggravating and mitigating factors depends on the facts and circumstances
of the particular case. Having noted that in a sense, to kill
is to be cruel and therefore all murders are cruel, the Supreme
Court observed that such cruelty may vary in its degree of culpability
and it is only when the culpability assumes the proportion of
extreme depravity that "special reasons" can legitimately
be said to exist.
24. In Machhi Singh v. State of Punjab, AIR 1983 SC 957 : 1983
Cri LJ 1457, the Supreme Court observed that the extreme penalty
of death need not be inflicted except in gravest cases of extreme
culpability; life imprisonment is the rule and death sentence
is an exception and the 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. It was further observed that 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. The Supreme Court further observed that in applying
the guidelines the questions to be asked and answered are :
"(1) Is there something uncommon about the crime which renders
sentence of imprisonment for life inadequate and calls for a death
sentence ?
(2) 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 Supreme Court also observed :
"If upon taking an overall global view of all the circumstances
in the light of the aforesaid proposition and taking into account
the answers to the questions posed hereinabove, the circumstances
of the case are such that death sentence is warranted, the Court
would proceed to do so."
25. In Allauddin Mian v. State of Bihar, AIR 1989 SC 1456 : 1989
Cri LJ 1466, the Supreme Court found the appellants guilty of
committing the murder of infant daughters of the proposed victim;
and having observed that the killing was not for gain and that
the mere fat of killing of infants does not prove the case within
the category of rarest of rare cases, it altered the punishment
to one of life imprisonment.
26. From the above discussion, the position that emerges is that
the Court will have to make a choice of the punishment to be awarded
to the person found guilty of the murder after taking into consideration
the aggravating and the mitigating circumstances. The rule is
that punishment for murder should be life imprisonment unless
there are special circumstances justifying awarding of maximum
punishment of death. In making the choice the Court should take
into consideration not only the circumstances relating to the
crime, but also to the offender and it is only in the rarest of
rare cases that the maximum punishment of death may be awarded.
27. The learned Sessions Judge recorded the special reasons under
Section 354(3), Cr.P.C. as follows :-
"The accused had intentionally caused the death of the deceased
in the first instance by inflicting a head injury with 'Tunagalakarra'
and when he (deceased) fell unconscious, he (the accused) severed
the head with the knife mercilessly and carried the head of the
deceased with his hand to the village proclaiming that he killed
him and threw the head in front of his house. The act of the accused
is a brutal and inhuman fashion. It was most reprehensible and
heinous crime which disclosed brutality and callousness to human
life".
The following mitigating circumstances were taken into consideration,
viz., that the appellant has a wife and two children. The learned
Sessions Judge referred to the judgment of the Supreme Court in
S. P. Sharma v. State of Madhya Pradesh, AIR 1977 SC 2423 and
arrived at the conclusion that in the presence of such mitigating
circumstances the accused in that case was awarded punishment
of death; he, therefore, awarded the punishment of death. In our
view, the special reasons given by the learned Sessions Judge
do not bring the case within the rule of "rarest of the rare
cases". There cannot be any doubt that the offence committed
by the appellant is reprehensible and heinous. It cannot also
be disputed that carrying the head of the deceased was a brutal
act. But as against this, the mitigating circumstances are :
(i) that the appellant who is an illiterate tapper, who was eking
out his livelihood by tapping, found that he is being deprived
of the legitimate right by the President of the Society on account
of the position he was occupying;
(ii) that the action of the deceased was responsible for provocation;
and
(iii) that the act was not premediated and it appears from a perusal
of Ex. P.21 that when the appellant questioned the deceased of
the act of tapping the tree which ought to have fallen to the
members, he threatened him (the appellant) with a knife.
Taking the stock of both the aggravating as well as the mitigating
circumstances, we have no doubt that the appellant committed one
of the rare acts, but we are unable to say that it is the rarest
of the rare cases. For this reason, we are unable to confirm the
sentence of death awarded by the trial Court to the appellant
and after the same to one of imprisonment for life.
28. The appeal is allowed in part in regard to the sentence. The
reference is disposed of accordingly.
Appeal partly allowed.
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