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Dasan And Others, Appellants V. State Of Kerala,
Respondents.
DATE : 21-02-1986
1987-(093)-CRLJ -0180 -KER
JUDGE(S) :
K G Balakrishnan
S Padmanabhan
KERALA HIGH COURT
JUDGMENT
PADMANABHAN, J. :- The five appellants were convicted by the Sessions
Judge, Trichur for offences punishable under sections 143, 147,
148 and 302 read with S. 149 of the Penal Code and each of them
was sentenced to be hanged by their neck till death for the offence
under S. 302 read with S. 149 IPC without awarding any separate
sentence for the other offences. The proceedings are submitted
for confirmation of the death sentence under S. 366 of the Code
of Criminal procedure.
2. The prosecution case is that on account of political enmity
they formed themselves into an unlawful assembly at about 9.30
a.m. on 24-3-1984 in the Onaparambu bus stop, the common object
being to murder Gopalan, President of the Perinjanam Panchayat,
committed rioting armed with M.Os. 1 to 5 daggers and stabbed
him to death while he was standing on the bus stop. Deceased was
a local leader of the Marxist Communist Party and as its representative
he was the local Panchayat President. The appellants are prominent
workers of the R.S.S. in the locality. The occasional clash between
the two organisations and the consequent enmity is alleged to
be the motive.
3. Though Gopalan was taken in a car first to the Kuttilakkad
Govt. Hospital, the Doctor saw him in the car itself and directed
him to be taken to the Cranganore Govt. Hospital since his condition
was serious. On reaching the Hospital at Cranganore another Doctor
examined and declared him dead. Both these doctors were not examined.
Shortly thereafter P.W. 1 gave Ext. P1 first information statement
which was recorded by P.W. 15 Sub-Inspector in the hospital at
10.45 a.m. The case was registered by him. P.W. 16 Circle Inspector
who conducted investigation prepared the inquest report Ext. P3.
Ext. P7 is the post-mortem certificate prepared by P.W. 12.
4. Death of Gopalan due to the injuries sustained by him is clear
from the depositions of PWs. 1 to 3 and other witnesses, from
Ext. P3 inquest prepared by P.W. 16 as well as from the evidence
of P.W. 12 and Ext. P7 post-mortem certificate prepared by him.
If the prosecution evidence is accepted it is a cold blooded murder
committed in broad day light in a public place. So also the evidence,
if accepted, unlawful assembly, its murderous common object, rioting
armed with deadly weapon and murder committed in furtherance of
common object must all be taken as proved. On these aspects there
was no dispute also and hence we do not propose to consider those
aspects in detail. The appellants disputed the time and place
to occurrence as well as their involvement.
5. Sufficiency of motive was one of the contentions raised. It
is said that the allegation is only a general political rivalry
without any individual or collective motive based on any specific
enmity and it cannot be taken as sufficient to commit such a grave
crime. That factual contention itself does not appear to be genuine.
It is true that the appellants, when questioned under S. 313 of
the Code of Criminal Procedure, denied their connection with R.S.S.
That appears only to be a ruse to escape liability. P.Ws. 1 to
3 and 8 are persons of the locality who know the deceased and
the appellants very well. All of them categorically said that
the deceased was a prominent marxist leader of the locality and
the Panchayat President and the appellants are friends and District
workers of the R.S.S. They also said that in the locality clashes
between Marxists and R.S.S. people were frequent and there was
long standing enmity between the two factions. If anything more
was required that was elicited in the cross-examination of P.W.
15 when it was brought out that deceased Gopalan himself was an
accused in a case for having assaulted R.S.S. workers and in some
other cases he was giving protection to accused belonging to marxist
party against R.S.S. workers. If these facts will not constitute
motive, we doubt what else will. Further there cannot be any guideline
or yardstick to decide what will operate as sufficient motive
for commission of a particular crime. It may vary from individual
to individual depending upon character, psychology and various
other factors.
6. Motive is not an integral part of the crime or an ingredient
of it just like mens rea or actus reus. Even without any motive
at all crimes could be committed. Absence of motive will not make
an act which is otherwise an offence not an offence. It is only
an aid in the assessment of criminality. That is relevant in abundance
mainly in cases depending upon circumstantial evidence. It is
only a ratiocinative aid in the assessment of evidence to fix
up criminality. In given cases it may help the court to tilt the
balance in assessing evidence. For want of motive a criminal who
is otherwise liable to be brought to justice cannot escape. In
given cases it may act as a guide to negative the otherwise available
presumption of innocence while considering the evidence which
the court may have an inclination to accept with a little more
of assurance. When there is direct evidence motive loses much
of its importance and significance. When the direct legal testimony
is so clear, cogent and convincing as to satisfy the judicial
conscience of the court in fixing up criminality motive is absolutely
irrelevant in the sense that even in the absence of any proof
of motive itself conviction could be had. Therefore the argument
based on motive has no force at all.
7. Now let us refer to the oral evidence connecting the appellants
with the crime. PWs. 1, 2 and 3 are the occurrence witnesses.
Among them PWs. 1 and 3 are shop owners having their shops at
close vicinity to the scene of occurrence. As against them there
is not even a suggestion that they are either interested in the
prosecution or inimical towards the appellants. No political or
personal interest is either suggested or proved and they are the
most natural witnesses whose presence is amply established. It
is true that P.W. 2 is not having residence or avocation within
the close proximity of the scene. But on the fateful morning he
was at the residence of one Gopalakrishnan residing close to the
scene of occurrence. He went there to enquire about his ailment
for which he was in hospital from where he returned home. Deceased
also went over there for the same purpose and they so happened
to meet. They came to the scene of occurrence together. This fact
has been spoken to by the other witnesses also. Therefore his
presence at the scene of occurrence is also amply established.
The two disqualifications levelled against him are (1) He was
a member of the Perinjanam Panchayat in which deceased Gopalan
was the President, and (2) He was the President of a Fishermen's
Society in which Gopalan was a member. It is enough to say that
these are not grounds to disbelieve a witness whose testimony
is otherwise found acceptable. One more ground was urged to discredit
him. That is he did not accompany the deceased to the Hospital.
He said he did not go for want of space in the car. We can visualise
a situation where a prominent political leader is seriously injured
in a public and we accept his explanation as probable. He said
on seeing the first stab he was frightened and hence retreated
to the nearby shop of P.W. 1. The argument was if so he could
not have seen the further stabs because in order to go to the
shop of P.W. 1 he had to turn the opposite side. That suggestion
was no disputed by him but he said he walked backward looking
at the scene itself. There is nothing improbable in such an act.
We do not find any reason to disbelieve these three witnesses.
8. From the evidence of these witnesses it is seen that deceased
was standing on a pillar with his hands behind the head and right
leg bent when the accused came from behind and attacked him with
daggers. First accused stabbed him on the left chest near auxila
as a result of which the deceased kneeled and further attacks
were thereafter. They said all the accused stabbed him and M.Os.
1 to 5 were identified by them as the weapons used. There was
an argument that in the respective positions of the deceased and
the manner in which the injuries were received by him as spoken
to by PWs. 1 to 3 the injuries are not possible according to medical
evidence and hence PWs. 1 to 3 will have to be disbelieved. So
also another argument was advanced that PWs. 1 to 3 have only
spoken altogether to five injuries (one by each accused) and the
remaining injuries found on the bead body were not explained.
We do not find any fancy in these arguments. Apart from mentioning
the respective postures of the deceased at different stages (which
itself may be only approximate) and the fact that the appellants
came from behind, these witness have not specified exactly the
positions of the assailants or the exact manner in which the injuries
were inflicted. So also there is no merit in saying that these
witnesses have spoken only to five stabs. What P.W. 1 said in
Ext. P1 as well as in the box was there were incessant stabs.
The evidence of PWs. 2 and 3 also are not capable of limiting
the stabs to five. A mechanical approach to the oral evidence
in an incident in which one man was jointly attacked all on a
sudden by five persons is not justified also. As per Ext. P7 there
were seven incised injuries and four abrasions. P.W. 12 has stated
that injuries 4, 9 and 10 (abrasions) can be caused when the person
falls on his knee and hands touching on the ground and the simple
incised injuries also could be caused during the same transaction
by M.Os. 1 to 5. The answer given by P.W. 12 that injury No. 5
in Ext. P7 is not possible while the injured was on his knees
and the assailant was standing cannot in any way discredit the
testimonies of witnesses. Such mechanical and computerised appreciation
of the oral evidence is not at all justified. The possibility
of injury No. 1 in the manner spoken to by the witnesses was affirmed
by P.W. 12 in re-examination. We do not find anything to disbelieve
the oral evidence on the basis of the medical evidence. PWs. 4
and 5 are persons who saw the accused going away from the scene
after the incident with weapons and there is no reason to disbelieve
their evidence also.
9. In the F.I.R. it is stated that P.W. 15 got information at
10.15 a.m. and hence went to the hospital and recorded Ext. P1.
P.W. 15 stated in cross that it was only a telephonic information
from source not disclosed. So also there is evidence that a death
intimation was sent from hospital but P.W. 15 said he went to
the hospital and recorded Ext. P1 before getting such an intimation.
From the evidence of P.W. 16 an argument was advanced that the
death intimation was purposely suppressed. The counsel for the
appellants placed reliance on the decision in Raberi Karsan v.
State of Gujarat 1977 Cri LJ 107 (Guj) to contend that the telephonic
information received by P.W. 15 ought to have been treated as
first information and Ext. P1 could have been treated only as
an information recorded during investigation. For the same purpose
the decision in Randhir Singh v. State 1980 Cri LJ 1397 (Delhi)
was also relied on. Those cases have no comparison to the facts
of the case before us. What P.W. 15 received was an anonymous
telephone call. He was not expected to act on it. It is true that
first information is intended only as an intimation regarding
commission of a cognizable offence for the purpose of setting
the law in motion. But an officer in charge of a police station
is not bound to treat any gossip or rumour or anonymous call or
any information without the requisite details or authenticity
to be treated as first information for the purpose of initiating
investigation. He is justified in verifying and ascertaining the
authenticity and details before registering a case and starting
investigation. Depending upon the authenticity and details even
a telephonic information could be treated as first information
for taking action. In this case we are not satisfied that there
is scope for such a contention in order to treat Ext. P1 only
as information received during investigation.
10. An attempt was made to contend on the basis of the decision
in Chamara Pradhani v. State 1983 Cri LJ 1706 (Orissa) that even
if evidence of eye-witnesses is clear, cogent and consistent it
can be accepted only if it is not demolished by the medical evidence.
That depends upon individual cases. If the apparent difference
between ocular evidence and medical evidence is attributable to
any acceptable reason which is capable of compromising the two
apparently different versions, otherwise acceptable ocular evidence
should not normally be rejected. The evidence of the Doctor is
also only opinion evidence on which the court could form its own
independent conclusion. Here the argument regarding the alleged
apparent difference in time of death is evidently the result of
imagination of a legal brain. According to the prosecution case
and the ocular evidence the incident was by about 9.30 a.m. within
a short time the injured was taken to the Kuttilakkad Govt. Hospital
from where without even removing the injured from the car he was
carried to the Cranganore Hospital as per medical advice. Before
reaching there the patient died and the Doctor examined and declared
him dead. All these things transpired within less than one hour.
Unfortunately the Doctors in the Kuttilakkad and Cranganore Hospitals
are not examined. The intimation received from the Cranganore
Hospital was also not produced for the presumable reason that
it was not necessary to act upon it since P.W. 15 reached the
hospital and recorded the first information statement even before
the intimation reached the police station. The argument was that
there is suppression of evidence in order to postpone the time
of incident and death enabling PWs. 1 to 3 to see the incident.
Post-mortem was conducted at 3 p.m. apparently within 5 or 6 hours
of death if the prosecution evidence is accepted. Contention was
that incident and death might have taken place earlier and a dead-body
alone might have been carried in the car. P.W. 12 said, based
on rigour mortis, that death might have taken place approximately
six hours prior to post-mortem. In cross-examination, P.W. 12
said that he cannot deny the suggestion that death might have
been 7 or 8 hours prior to post-mortem. This answer is the basis
of the contention. At the same time the Doctor said that presence
of rigour mortis is not a sure sign to note the time after death.
Failure of P.W. 12 to note the rectal temperature was one of the
handles on which the counsel based his arguments. P.W. 8, the
wife of the deceased, said that he had his break-fast by about
8 a.m. and left the house by about 8.30 a.m. In Ext. P7, P.W.
12 found partially digested food. These facts only probabilise
the evidence of PWs. 1 to 3 regarding the approximate time of
occurrence. The failure in Ext. P9 chemical examination report
to note the group of human blood was another contention raised
in this connection. These aspects become relevant or crucial only
in cases where direct evidence is lacking and identity of the
deceased is also in dispute. In a case like this where the incident
took place in broad day light in the presence of respectable witnesses
who have no doubt at all regarding the identity of the injured
and the assailants or the time of death we need not strain ourselves
too much on those aspects unless there is reason to doubt the
veracity of the evidence. Recovery of the weapon or proof of presence
of blood belonging to the group of the deceased in it are not
essential conditions precedent to conviction if the evidence is
otherwise acceptable. The question of time of death also assumes
importance only if the ocular evidence is found doubtful. In this
case non-examination of the two Doctors and non-production of
the death intimation only helped in raising a technical contention
challenging the time of incident and death. From the evidence
of PWs. 1 and 3 it is clear that Gopalan died only after they
left Kuttilakkad (Perinjanam Health Centre) and before they reached
Cranganore hospital.
11. We do not find any merit in the contention that there is suppression
of evidence. Non-examination of CW. 3 Chandran is the basis for
the argument. CWs. 1 to 7 were cited in the charge to prove the
occurrence. Out of them CWs. 1, 2 and 4 alone were examined as
PWs. 1, 2 and 3. The decisions reported in AIR 1968 SC 1402 :
(1968 Cri LJ 1655), 1984 Cri LJ NOC 67 (Orissa) and AIR 1975 SC
1453 : (1975 Cri LJ 1201) were relied on to support the contention.
The question of suppression of evidence becomes relevant only
because in an endeavour to find out the truth it is the duty of
the prosecution to place the entire evidence both favourable and
unfavourable to the prosecution or defence so that the court may
arrive at the truth correctly. Only if a conscious attempt is
made in this line it could be said that there was suppression
of evidence thereby creating difficulties for the court to arrive
at the truth. The evidence Act does not sat that a particular
number of witnesses is necessary to prove a fact. Evidence is
being weighed and not counted. It is the worth and not the count
that matters. A number of infirm witnesses will not prove a fact
but a solitary reliable witness will prove. When a number of persons
have seen an occurrence no provision of law enjoins a duty on
the prosecution to examine all of them before court. The prosecution
is having the discretion to select witnesses for examination.
An interested or inimical witness or one who is reasonably suspected
to be won over by the defence could very well be given up. Which
witness would be material for examination is for the prosecution
to find out. Unless it is shown that a particular witness was
withheld with some ulterior motive no adverse inference is possible
from the non-examination of the witness. Whether there is calculated
withholding of evidence to screen real facts from the notice of
the court should be the consideration. Withholding of independent
persons who are neither victims of assault nor have any axe to
grind against the accused and examination of interested and partisan
witnesses alone could be said to be with ulterior motive and it
could be held to be suppression. Prosecution is not expected to
examine witnesses in the serial order in which they are arrayed
in the charge. Picking and choosing a few out of similarly placed
witnesses cannot in any way be held to be suppression. Non-examination
of a material witness in given situation may sometimes amount
to suppression. Withholding an eye-witness for the sole reason
that his evidence is likely to go against the prosecution may
on many occasions amount to suppression because of the duty of
the prosecution to assist the court in reaching the proper conclusion.
The real test will be whether there was any conscious attempt
to suppress facts from court by not tendering a particular piece
of evidence. So far as this case is concerned three out of several
equally placed eye-witnesses were examined leaving the others.
We do not find anything irregular in it and no ulterior motive
was pointed out. By examination of one or more witnesses if the
prosecution feels that a particular point is proved there is no
duty to examine the others unless their examination is relevant
for bringing out any fact not brought out from others and relevant
to be placed before court.
12. Another item of evidence to connect the accused with the crime
is the information conveyed by them to PW. 16 in consequence of
which the weapons were discovered and which distinctly related
to the discoveries. This provision is an exception to Sections
24, 25 and 26 of the Evidence Act. Exts. P4, P5 and P6 are the
mahazars and Exts. P4(a), P5(a) and P6(a) are the informations
extracted in the mahazars. M.Os. 1 to 5 and 7 are the weapons.
Recoveries were effected by P.W. 16 and PWs. 9, 10 and 11 are
the attesters. They have proved the informations and the consequent
discoveries. The weapons were identified by PWs. 1 to 5 in the
box. The places of concealment were spoken to and pointed out
by the concerned accused and actual discoveries were made either
by the accused or by other persons from the place pointed out
by the accused at the direction of the investigating officer.
They were all from places of concealment which could not be noticed
by strangers. As held in 1961 KLT (SC) 74 (Sic) the provisions
of S. 27 of the Evidence Act are not within the prohibition of
Art. 20(3) of the Constitution unless compulsion has been used
in obtaining the information. The only item of compulsion alleged
in this case is hand-cuffing of the accused at the time when they
were taken to effect the discovery consequent on the information.
We are not at the question whether the hand-cuffing was correct
or not, but only whether it will amount to compulsion. The purpose
of hand-cuffing is to act as a safeguard against the person escaping
from custody. Hand-cuffing itself in the absence of anything else
cannot amount to compulsion for giving the information. Therefore
the plea of compulsion cannot be accepted. The argument that the
disclosure statement ought to have been extracted and produced
as an independent item of evidence to prove the information appears
to be highly technical. When a fact is deposed of as discovered
in consequence of information received from the accused what is
admissible is only so much of the information, whether it amounts
to a confession or not, as relates distinctly to the fact thereby
discovered. The fact discovered consequent on the information
acts as assurance to the truth of the information. The incriminating
portions of the statements are not admissible. For eg. a statement
along with the information that the object to which the information
relates was used for the commission of offence is not at all admissible.
That is a matter to be proved by independent evidence. Information
distinctly relating to the fact discovered alone is admissible.
If that information is otherwise known to others or the police
officials, then there is no sanctity attached to the information.
That is why no weight is being attached to discoveries from public
places or places to which others also are having easy access consequent
on information. But the public nature of the place or its accessibility
to others alone is not the criterion. The main question is whether
the particular information was exclusively known to the accused
alone or whether it was known to others also. For eg. a public
well or a public tank may be a place accessible as of right to
the public. But the fact of having placed a weapon underneath
the water in such tank or well without being seen or known by
others may be an information which is exclusively available to
the accused. Such an information and the consequent discovery,
if proved, could be accepted. The information may be part of the
statement made by the accused when questioned after arrest. It
may be contained in the case diary which could be made use of
by the investigating officer who records the same. It is from
that he may be extracting the relevant disclosure statement in
the mahazar. Mahazar will be prepared immediately after discovery.
Therefore the entry of the disclosure statement in the mahazar
could only be after discovery. That does not mean that the information
was made or recorded after discovery. Even if it is insisted that
there must be a separate extract prepared before proceeding for
the discovery consequent on the information it could only turn
out to be a technical formality because it could only be the relevant
portion copied from the statement contained in the case diary.
But what is relevant is only the first information given by the
accused and not any repetition or subsequent information of it.
The information need not necessarily be by words, but it can also
be by gestures. But that also will have to be recorded. When once
an information is given the discovery must be on the basis of
that information and not any subsequent information. Pointing
out on the spot and actual taking could only be procedures in
the process of discovery and they are not part of the information
if there is already one. So also there cannot be any question
of any joint information given by more accused than one. We said
so because in this case there was such a contention which we found
to be factually incorrect. In this case the discoveries consequent
on the information where from beneath a culvert, from the bottom
of a tank and another place, all exclusively known to the accused
alone. The informations and discoveries are amply proved also.
In this case the information which led to the discovery itself
is not very material because even otherwise there is evidence
to connect the accused with the crime. Though it was argued before
us that in order to accept the information under S. 27 of the
Evidence Act the actual discovery must also be by the accused
himself, we do not think that the position is correct. For the
applicability of the Section what is required is only that there
should be information which relates distinctly to the fact discovered
and the discovery must be in consequence of the information. The
actual discovery can be by the accused himself, the police officer
or any third person at the direction of the police officer. We
do not find any reason to discard the evidence relating to the
discoveries consequent on the information.
13. We had occasion to hear both sides very elaborately and peruse
the evidence in detail. It is true that there are slight discrepancies
and variations between the evidence of P.Ws. 1 to 3 in the matter
of identification of the weapons and narrations of the individual
acts of assaults as well as the relative positions of the injured
and the assailants. But on broad aspects their testimonies remain
unique and unassailed. Possible errors consequent on difference
in conception, perception, memorisation and reproduction will
have to be given some margin. Mr. A. R. Sreenivasan, Advocate
for the appellants, was concentrating more on minor contradictions
and discrepancies in his attempt to discredit the witnesses. He
has forgotten the fact that it is an inevitable result that different
honest persons who had occasions to witness an incident like this
will differ between themselves in minute details. In fact such
difference is only evidence of their truthfulness and not otherwise.
14. The argument that deceased had several enemies and he could
have been murdered by some body else at some other place at some
earlier point of time is not available in view of the clear evidence
available in the case. If clinching evidence was absent such probabilities
could have been argued in an attempt at least to get the benefit
of doubt.
15. Serious attack was levelled against the manner which the accused
were questioned under S. 313 of the Cr.P.C. The object of questioning
the accused under S. 313 Cr.P.C. is to enable him personally to
explain any circumstance appearing in the evidence against him.
The questioning under S. 313(1)(a) is only obligatory. But the
questioning under S. 313(1)(a) after the prosecution evidence
is over and before the accused is called on for his defence is
a must. It must be generally on the case. All circumstances appearing
in the evidence against him will have to be put to him in the
form of simple questions so that he could understand the questions
and give answers offering his explanation. It is not a mere formality
eventhough usually the accused themselves do not give the desired
seriousness to it. Compound questions should not be put because
there is the possibility of the accused being confused or being
unable to explain properly. Evidence and circumstances appearing
in the evidence and not put to the accused cannot be used against
him. Eventhough questioning under S. 313 is mandatory, going by
the purpose it is clear that when there is no evidence or circumstance
appearing against him he need not be questioned at all, because
in such a case there is not question of conviction.
16. There is no case that questions put were not proper or simple
or that all the evidence or circumstances were not put to them.
The objection is that the questions were recorded by typewritten
English and there is nothing to show that the questions were translated
into Malayalam, which language alone the accused could understand,
explained to the accused and answered by them after understanding
the questions. So also it was argued that the Malayalam transalation
of the questions are not recorded enabling this court to ascertain
what questions were exactly asked and the Sessions Judge has not
certified under his signature that the questions were translated
into Malayalam, explained by him and he personally recorded the
questions and answers. It has to be noted that no such contention
was taken in the appeal memorandum. Mr. A. R. Sreenivasan, who
appeared before us was the counsel who appeared before the Sessions
Judge also. He admits that the questions were asked in Malayalam.
The questions recorded in english and the answers recorded in
Malayalam show that the questions were properly understood and
answers were given. If so it is clear that this is intended only
as a technical contention without any prejudice having been caused.
17. This contention seems to have been raised on the basis of
Short Note decision, case No. 88 of page 34, 1978 Ker LT : (1979
Cri LJ NOC 16). That decision deprecated the practice of recording
313 questions in English and answers in Malayalam where the accused
do not know English. So also it was laid down therein that when
Malayalam translations of the English questions are asked these
Malayalam translations of the questions also must be recorded
in order to ascertain what exactly were the questions that were
asked. We have considered that decision in detail and we are of
opinion that it has not laid down the correct law on the point.
Under S. 272 of the Code English is also the language of the court.
Charge is being prepared in English and proceedings of Court including
judgments or orders are also written in that language. The code
contains provisions for interpretation in the language understood
by the accused whenever evidence is given in a language not understood
by him. Preparing 313 questions in English cannot be said to violate
any of the provisions of the Code. Whenever the accused is unable
to understand English the questions could be translated into the
language which he understands and the answers recorded. There
is no irregularity or illegality in translating English questions
into Malayalam and recording the answers in Malayalam. It is true
that it is always safe for the Magistrate or the judge to certify
under his writing and signature that the English questions were
correctly translated and explained to the accused, that he understood
and answered in Malayalam and the answers were correctly recorded.
In fact Section 281(5) of the Cr.P.C. so provides also. That may
add assurance to what takes place in 313 questioning. This could
be had in addition to or independent of compliance of R. 57 of
the Criminal Rules of Practice. But to insist that Malayalam translation
of the English questions also should be recorded appears to be
an unnecessary formality involving waste of judicial time and
energy. Questions are being translated and asked by responsible
judicial officers who could very well be believed when they certify
that the English questions were correctly translated and asked
by them. When the English questions are there how can there be
any difficulty in understanding the Malayalam versions of the
questions asked. Section 281(3) of the Cr.P.C. permits recording
of the examination of the accused in the language of the court.
Eventhough S. 313 does not deal with examination of witnesses
but the accused there seems to be no reason to have a discrimination
in the matter of language so far as S. 313 alone is concerned.
S. 313 does not require recording of the questions in the language
spoken by the accused. There is nothing strange in preparing the
questions in English, translating and asking them in Malayalam
and recording the answers in Malayalam. What is required to be
safeguarded in the interest of justice is that the accused should
understand the questions and he should not be prejudiced. In that
respect faith in the honesty and integrity of the judicial officers
is the solution.
18. In this case there cannot be any dispute that the Sessions
Judge translated the questions into Malayalam and recorded the
answers. But he did not make a certificate that he has done so.
It is always desirable that judges and magistrates certify under
their signature that questions were translated and explained to
the accused who understood the same and gave answers all of which
are truly and correctly recorded. In this case the omission could
only be an irregularity which did not result in any prejudice
at all. The irregularity is only curable. The certificates as
enjoined by R. 57 of the Criminal Rules of Practice signed by
the Magistrate are there in all the statements.
19. Section 278 of the Cr.P.C. provides that as the evidence of
each witness taken under S. 275 or 276 of the Cr.P.C. is completed,
it shall be read over to him in the presence of the accused if
in attendance, or if his pleader, if he appears by pleader and
shall, if necessary, be corrected. The complaint is that deposition
of some of the witnesses were not read over by the Judge in open
court in the presence of the accused. This contention appears
to be correct because some of the witnesses signed the depositions
recording that they read to depositions themselves. The Judicial
Officers will note for guidance that the provisions of S. 278
Cr.P.C. should be complied with. Going by the decisions reported
in Mathai Thommen v. State of Kerala AIR 1959 Ker 241 : (1959
Cri LJ 1069), Pappan Narayanan v. Kerala State AIR 1959 Ker 354
: (1959 Cri LJ 1324) and V. M. Abdul Rahman v. King Emperor AIR
1927 PC 44 : (1927-28 Cri LJ 259) this could only be an irregularity
which is curable. The accused were represented by counsel. The
depositions were recorded in their presence. It was only in the
case of some literate witnesses that the deviation from Section
278 was made. Any how even that has to be avoided so that such
contentions may not be raised.
20. It is clear from the evidence that it is a cold blooded murder
in furtherance of the common object of the unlawful assembly to
which all the five appellants were members.
They committed rioting armed with deadly weapons. P.W. 12 has
stated that death was due to shock and haemorrhage to the right
lung and injuries 1, 2 and 5 are sufficient in the ordinary course
of nature to cause death. Conviction under all the courts are
only to be confirmed.
21. In exercising the sentencing discretion the Sessions Judge
had a light hearted approach. After stating that the prosecutor
argued for capital punishment and the accused craved for mercy,
the Sessions Judge had his discussion on sentencing discretion
in one sentence when he said "considering the circumstances
of the case, I feel that the capital sentence can be imposed."
22. In Bachan Singh v. State of Punjab AIR 1980 SC 898 : (1980
Cri LJ 636) the Supreme Court laid down that the normal punishment
for murder is imprisonment for life and the extreme penalty will
be justified only in 'rarest of rare' cases. After that decision
the Supreme Court considered and followed the decision in several
cases, though in some cases with some sort of resentment over
its rigour. Erabhadrappa v. State of Karnataka AIR 1983 SC 446
: (1983 Cri LJ 846) was a case in which death sentence was confirmed
by the High Court. The appellant in that case murdered his master's
wife during the dead of night by strangulation for gain by betraying
the trust of his master. It was a pre-planned cold blooded murder
for greed in achieving his object of committing robbery. Their
Lordships found that the appellant was guilty of a heinous crime
which deserved the extreme penalty, but said "Failure to
impose death sentence in such grave cases where it is a crime
against society particularly in cases of murders committed with
extreme brutality will bring to naught the sentence of death provided
by S. 302 of the Indian Penal Code. The test laid down in Bachan
Singh's case AIR 1980 SC 898 : (1980 Cri LJ 636) is undoubtedly
not fulfilled in the instant case. Left with no other alternative,
we are constrained to commute the sentence of death passed on
the appellant into one for imprisonment for life."These passages
show that the judges who decided the case felt that the appellant
deserved death penalty but they were helpless in awarding it because
of the rigour of the guidelines in Banchan Singh's case.
23. For the same reason death sentence was commuted in Bishan
Singh v. State of Punjab, AIR 1983 SC 748 : 1983 Cri LJ 973) also.
But in a later decision in Machhi Singh v. State of Punjab, AIR
1983 SC 957 : (1983 Cri LJ 1457) the earlier decision in Banchan
Singh's case was explained in order to water down its rigour by
giving certain principles, guidelines and examples in deciding
the cases which could be treated as the 'rarest of rare' for consideration
of capital sentence. Along with the circumstances of the crime
the circumstances of the offender also have to be taken into account.
All the aggravating and mitigating circumstances have to be drawn
up giving full weightage to the mitigating circumstances in striking
the balance before exercising the option. The option has to be
exercised bearing in mind that life imprisonment is the rule and
death sentence is only the exception to be resorted to only when
life sentence is found altogether inadequate after due consideration
of all the relevant facts and circumstances and that too only
in gravest crimes of extreme culpability. The crime must be of
an uncommon nature in which even after giving maximum weightage
to the mitigating circumstances the court must be of opinion that
sentence of imprisonment for life is inadequate and there is no
alternative but to impose death sentence. The crime must be of
the rarest of rare type where the collective conscience of the
community is so shocked that it will expect the infliction of
death penalty. In individual cases it is for the Judges to apply
these guidelines and decide the sentence. To those who have no
scruples in killing others, if it suits their ends, there must
be rule of law and fear of being brought to book to operate as
a deterrant. Death sentence may be justified in cases of murders
committed for motives which evince total depravity and meanness,
as of instance murders by hired assassins for money, or reward,
cold blooded murders for gains of persons on whom the murderer
was in a dominating position or position of trust, murders committed
in the course of betrayal of the mother land etc. Murders of members
of Scheduled Caste or minority community etc. committed not for
personal reasons but in circumstances which arouse social wrath,
cases of 'bride burning', dowry deaths, murders committed in order
to remarry for the sake of extracting dowry once again or to marry
another woman on account of infatuation etc. also may come within
the category of rarest of rare' cases. Crimes committed in enormous
proportion, for instance murders of all the members of a family
or a large number of particular caste, community or locality could
also be grouped under this head. Murders of innocent children,
helpless women, old or infirm persons or public figures generally
loved and liked by the society could also shock the collective
conscience of the community and could be considered for the maximum
penalty. But in all these cases before awarding the sentence the
aggravating and mitigating circumstances will have to be considered
and the balance struck after taking all the facts and circumstances
into account.
24. We have summarised and extracted these principles laid by
the Supreme Court only because the Sessions Judge has not considered
these aspects due to reasons which may include ignorance also.
Otherwise in this case the Sessions Judge would not have attempted
to sentence five persons to hanging with the aid of Section 149
without any discussion at all by the only sweeping words "Considering
the circumstances in this case, I feel that the capital sentence
can be imposed". Is his simple feeling sufficient to take
away the God given lives of five individuals eventhough they are
proved to be murderers ? Was he not bound to consider "the
circumstances in this case ? Judicial experience and wisdom ought
to have told him that the exercise of his sentencing discretion
is justiciable and subject to confirmation by this Court. Is not
this court entitled to know what all considerations weighed with
the Sessions Judge in deciding the sentence in order to exercise
the judicial review on it. Life of individuals are not to be taken
away by mere 'feelings' from the vacuum. Judicial powers are intended
to be exercised judicially with atmost care and caution especially
when we are dealing with life and liberty of citizens. We are
constrained to say that the Sessions Judge has shown callous indifference
and indiscretion in this respect. The Sessions Judge has also
acted in disregard of S. 235(2) of the Cr.P.C. Hearing the accused
on the question of sentence is not intended as a formality. It
is intended to given an opportunity to place before court facts
and materials relating to various factors hearing in the question
of sentence. If those facts are contested then opportunity for
evidence also will have to be allowed. What the Sessions Judge
asked these five accused after pronouncing the judgment of conviction
was whether they have any reason not to sentence them. That is
not hearing on the question of sentence. Such a question will
normally be asked only when an accused pleads guilty to the charge.
When the entire trial is over and when the accused is found guilty
of murder and when no exception is involved there is no question
of not imposing any sentence. Two alternatives alone are there
and hearing on the question of sentence in such cases in only
hearing as to which of the two sentences is to be awarded. In
the matter of recording deposition of witnesses and statements
of the accused also the Sessions Judge seems to have committed
irregularities of which we had occasion to discuss earlier.
25. In this case the murder was premeditated and calculated. There
was no provocation. It was on account of enmity and the crime
was committed openly in a public place, Still we do not feel that
it is one of the gravest of crimes involving extreme culpability
and for that reason alone without considering the other aspects
discussed in Machhi Singh v. State of Punjab AIR 1983 SC 957 :
(1983 Cri LJ 1457) we find that it is not one of the rarest of
rare case attracting the extreme penalty provided by law.
While confirming the conviction of all the appellants, we allow
the appeal in part, set aside the sentence of death and substitute
the sentence of imprisonment for life against all the appellants.
The Criminal R.T. is also disposed of accordingly.
Order accordingly.
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