Kaliram And Etc., Appellants V. State Of Maharashtra, Respondent.
DATE : 21-02-1989
1989-(095)-CRLJ -1625 -BOM

JUDGE(S) :

Deshpande
W M Sambre
BOMBAY HIGH COURT (AT NAGPUR)
JUDGMENT
DESHPANDE, J. :- Accused 1 Kaliram and accused 2 Bansilal were convicted by the 3rd Additional Sessions Judge, Amravati under Ss. 302 and 376 read with S. 34 of the Indian Penal Code and sentenced to death. Confirmation Case No. 2 of 1988 arises out of the reference made by the 3rd Additional Sessions Judge in respect of the sentence of death while Criminal Appeals Nos. 244 and 245 of 1988 have been filed by the accused 1 and 2 respectively questioning their conviction and sentence.
2. The incident out of which the prosecution arose, occurred in the night between February 15 and 16, 1988 in the village Surali jungle in the field belonging to one Vishnupant Bhujade. The accused No. 1 Kaliram was employed as Vishnupant Bhujade's agricultural servant. Accused 1 Kaliram and his wife used to reside in Vishnupant's house in a separate room. Vishnupant had a hut in his agricultural land in the outskirts of the village. The accused 1 met Ramu Mawasi about 5 days before the incident and introduced him to Vishnupant Bhujade. Vishnupant employed Ramu and his wife Munnibai and gave them the hut in his land for their residence. The hut was a small structure 10' X 7' in area with an electric light. On the day of the incident Ramu and his wife had their evening meals at about 7 p.m. and went to sleep. At about midnight Munnibai was awakened because of the beating which was being given to Ramu. On waking she noticed the accused 1 and 2 beating her husband. She screamed, but they silenced her by threatening her. After killing Ramu by means of sticks, the accused 1 and 2 wrapped his body in a quilt and carried it to a dry well 411 feet away and dropped it there. They made Munnibai remove all the bloodstained articles which were inside the hut and dumped those articles also in the well. She was then taken by force to an orange garden where accused 1 Kaliram forcibly ravished her and after he finished, the accused 2 Bansilal also ravished her. The accused No. 1 Kaliram left the place. Munnibai was then taken by accused 2 to a nearby field where he had sexual intercourse with her four times. At sun rise he left her upto the door of Vishnupant's house. Munnibai narrated the incident to the accused 1's wife Bindiya and took her to the well. Vishnupant also followed them and saw the place of the incident. Munnibai accompanied Vishnupant to Warud police station and lodged the first information report. P.S.I. Wagh sent Munnibai for medical examination to the Primary Health Centre and got her examined by Dr. (Miss) Dhote who found seminal stains on her sari, but no marks of violence or injury. She collected vaginal swab and sent it to the Chemical Analyser for examination.
3. P.S.I. Wagh seized Munnibai's sari (Art. 1) under the panchanama Ex. 46 and saw the place of the incident, but as it was dark, without recording the panchanama of the scene of offence, he recorded the statements of Munnibai, Vishnupant and Vishnupant's wife Kamlabai and arrested accused 1 at 21 hours after drawing up the panchanama Ex. 13. He seized the blue pant, Jangiya and Manila which were on accused 1's person under the seizure memo Ex. 14. The panchanama of the scene of offence Ex. 15 was drawn up. The dead body which lay concealed in the well under sheaves of fodder was taken out and an inquest was held. The hand and legs of the dead body were found tied with a rope string. The clothes and the articles which were in the well were seized under a panchanama and the dead body was sent for post mortem. The post mortem examination in respect of the dead body was performed by Dr. Sadapure (P.W. 3). He noticed 3 incised wounds respectively on the left ear, forehead and right ear and contusions on the forehead, right eye-brow, left ring finger, chin, left perietal region, left scapular region and lacerated wounds on the left eyebrow, right parietal region and abrasion on left elbow joint. The internal examination showed that the left kidney was ruptured, the skull was fractured, brain material had come out of the skull and the spleen was also ruptured. In the opinion of Dr. Sadapure, the death was due to shock on account of the extensive hemorrhage resulting from the injuries, the injuries on the right and left parietal region being grievous resulting in damage to the brain. The accused No. 2 was arrested at 3 p.m. on 17-2-1988 and the clothes which he was wearing viz full-plant, Bengali shirt and panti, Arts. 18, 19 and 20 were seized under seizure memo Ex. 23. In consequence of the information given by accused 1 and 2, two Babhul sticks Arts. 22 and 23 were seized under two separate seizure memos. After the Chemical Analyser's report was received, the accused 1 and 2 were put on trial.
4. The accused pleaded not guilty to the charge and their defence being mainly of denial. The learned Additional Sessions Judge found that Ramu Mawasi met with a homicidal death and his death was caused by accused Nos. 1 and 2. He also found that accused 1 and 2 had gang raped Munnibai (P.W. 1). The additional Sessions Judge held accused 1 and 2 to be guilty under sections 302 and 376 read with S. 34 of the Penal Code and without passing any sentence in respect of rape, imposed the sentence of death on accused 1 and 2.
5. The fact that Ramu Mawasi met with a homicidal death is established by medical evidence as well as the evidence of Munnibai (P.W. 1), Vishnupant (P.W. 5) and the other circumstances bearing upon the condition in which the dead body came to be found discarded in the dry well. The position that Ramu Mawasi met with a homicidal death is not questioned before us and indeed no other conclusion than the one that he met with a homicidal death is possible under the circumstances.
6. With regard to the occurrence, the evidence purporting to implicate accused 1 and 2 comes mainly from Munnibai (P.W. 1). It is apparent from her account which is supported by that of Vishnupant Bhujade (P.W. 5) that about 5 days before the gruesome incident Munnibai and her husband Ramu had come to the village in search of an employment and on meeting the accused 1 Kaliram they went to Vishnupant Bhujade and Vishnupant employed them and asked them to reside in the hut in his agricultural land. Kaliram used to reside with his wife Bindiya in a separate room in Vishnupant Bhujade's house. In the fateful night Munnibai and Ramu slept in the hut by spreading a Bondri (quilt) on a platform about 3' in height inside the hut. Munnibai's evidence shows that there was an electric light burning inside the hut when they went to bed and at about midnight the accused 1 Kaliram suddenly entered the hut along with a person wearing a Bengali shirt and they both started beating Munnibai and her husband with Babhul sticks. When Munnibai started screaming the accused 1 Kaliram threatened her that she will be stabbed with a knife and killed. This worked and she stopped crying. After Ramu was battered to death, accused 1 and 2 wrapped him in the quilt and carried him by hanging the bundle to a Babhul branch to a well in the adjoining field. Munnibai's evidence shows that accused 1 Kaliram pulled her by hand and took her also to the well. After throwing the bundle into the well the accused 1 and 2 dropped some sheaves of fodder inside the well and dragged her to an orchard about 200 to 300 paces away from the well. Munnibai's account shows that accused 1 Kaliram put her on her back, lifted her sari and had a sexual intercourse with her. After he finished, the accused 2 Bansilal also had a sexual intercourse with her. According to her the accused 1 Kaliram had intercourse with her twice and left in the direction of the village. Thereafter accused 2 Bansilal took her to another field where there was a heap of fodder and had sexual intercourse with her thrice. At sun rise she collected her sari and went in the direction of the village. According to Munnibai, accused 2 followed her until she reached the door of Vishnupant Bhujade's house.
7. When she reached Vishnupant's house, she narrated the incident to Bindiya the wife of accused 1 Kaliram and took her to the well near Vishnupant's field as she wanted to verify Munnibai's version. Munnibai's evidence shows that when she reached the well, Vishnupant also followed there and she also narrated the incident to Vishnupant. Vishnupant then went to Warud police station while she and Bindiya stayed in the field and Vishnupant returned with a police party. She narrated the incident to the police and pointed out the well. According to her, her statement was recorded by the police while she was in the field and the account she gave to the police Ex. 11 substantially supported her version given in the evidence. The learned counsel for the accused persons urged that the statement Ex. 11 which was treated as the F.I.R. by A.S.I. Wagh (P.W. 10) and included in the printed F.I.R., was not in fact the first information report because on Munnibai's own showing it would be clear that her statement was recorded by the police in Vishnupant's field and that she had not gone to the police station until after the police arrived at the scene of offence. A.S.I. Wagh, however, asserted that Vishnupant Bhujade had not given the first information report to him and the incident came to be narrated to him by Munnibai when she came to the police station along with Vishnupant. Vishnupant's account shows that when he went to his field at about 10-30 a.m. he met accused 1 Kaliram while the latter was returning to the village but he came back and told him that his wife Bindiya had been blurting anything by saying that he had committed Ramu's murder in the previous night. It is noteworthy that the statement which was attributed to the accused 1 had not been made before the Police when Vishnupant's statement was recorded in the night of 16-2-1988. Vishnupant's evidence purports to show that the accused 1 told him that whatever Bindiya was saying, was false and that at that time Munnibai and Bindiya were sitting in his land and when they heard what accused 1 was saying. Bindiya said that her husband should not be trusted because he was not in their house in the previous night and she also stated that Ramu was killed by the accused and was dumped in the well. These statements regarding the conduct of accused 1 Kaliram and Bindiya came to be made for the first time in Vishnupant's evidence in the Court and he had made no such statement before the Police. Vishnupant's evidence further purports to show that he then went to the field and made fresh enquiry from accused 1 Kaliram, but he did not admit his complicity and so he took Munnibai aside and enquired from her and she informed that accused 1 and one more person committed the murder of her husband in the previous night and that they had discarded Ramu's body in the well and that thereafter they both had ravished her. Vishnupant claimed to have made fresh enquiry from Kaliram, but he stated that he had neither beaten nor murdered Ramu and it was Bansilal accused 2 who was responsible for the murder. It is evident that this statement about the conduct attributed to accused 1, was not made before the police when Vishnupant's statement was recorded. Considering the belated references which came to be made for the first time when Vishnupant's evidence was recorded on 25-8-1988, it is difficult to accept his version regarding the statements attributed to accused No. 1 Kaliram. Shorn of these embellishments, what remained of Vishnupant's evidence was that he had seen Munnibai and Bindiya together in his field and that Munnibai had made statements implicating accused 1 Kaliram and one other person of her husband's murder and rape on her.
8. It was strenuously urged on behalf of accused 1 and 2 that Munnibai's version regarding her informing Vishnupant, cannot be trusted because she was out to implicate accused 1 and 2 falsely and that the omission to examine Bindiya in the course of investigation and to examine Kamlabai the wife of Vishnupant whose statement had been recorded by the Police, in Court, would give a lie to Munnibai's version. It appears to us that Bindiya's examination would not have served any purpose because even assuming that she had momentarily felt annoyed with the conduct of the accused 1 Kaliram, she was not an eye-witness to the incident and except for saying what was the immediate conduct of Munnibai, her evidence would not have unfolded the narrative of the prosecution case any further. With regard to mentioning of the gruesome incident immediately after the occurrence, Vishnupant (P.W. 5) had testified to it and he was also the person who was instrumental in getting Munnibai's first information report recorded in the police station. But for saying that Munnibai had made identical statement to her also, Kamlabai's evidence would not have gone further. She was not an eye-witness and if the purpose of examining Bindiya and Kamlabai were to offer corroboration to Munnibai's version, the prosecution had examined Vishnupant for that purpose and had also paced on record the first information report which was attributed to Munnibai. We are not, therefore, impressed by the contention raised on behalf of accused 1 and 2. The law laid down in Rameshwar Dayal v. State of U.P. AIR 1978 SC 1558 is clear and it is that it is manifest that what is important is not as to who were not examined but as to whether the witness, who had actually been examined should be believed. As we have pointed out the witnesses who were not examined in this case were not eye-witnesses and nothing would have turned upon their examination and no adverse inference can, therefore, be drawn against the prosecution for not examining these two prosecution witnesses.
9. With regard to Munnibai's version that her statement came to be recorded in the field after the police arrived and in the meanwhile Vishnupant had been to the police station, as we have already stated A.S.I. Wagh and Vishnupant (P.W. 5) stated that the F.I.R. was given by Munnibai and that it was not Vishnupant who had given that information. It is evident that according to them the information relating to the offence was given by Munnibai first. The learned trial Judge who had the advantage of seeing the witness has observed that one cannot be oblivious of the fact that Munnibai a young Adiwasi woman was a stranger to the village and whatever discrepancies were pointed out in her evidence are accountable to the limited faculty to reproduce what she had observed and that it was always natural that due to mental disposition, such as shock and horror at the time of the occurrence, some discrepancies are likely to occur in the evidence of such a witness. There is no doubt that Munnibai had been to Warud police station and had been sent to Dr. (Miss) Dhote (P.W. 4) who examined her at 5-45 p.m. on 16-2-1988. The printed first information report shows that the first information report regarding the incident had been given at 16 hours on that day. A.S.I. Wagh was categorical in stating that apart from her F.I.R. her detailed statement also came to be recorded. It is obvious that it was she who had shown the place of occurrence to the police and that was late at night and so a panchanama of the scene of offence could not be drawn up. We have no reason in these circumstances to doubt the version of A.S.I. Wagh and Vishnupant (P.W. 5) that the FIR was given by Munnibai. Vishnupant's evidence shows that he had taken Munnibai in a rickshaw to the police station at Warud. It was urged on behalf of accused 1 and 2 that with regard to taking her in a rickshaw to the police station there was omission in the statement before the police. We do not think that this omission to mention the vehicle was a material omission and we do not think that merely because of that omission Vishnupant's version regarding his taking her to the police station should be disbelieved. On the other hand it appears to us that Vishnupant (P.W. 5) who was employed as a Head Clerk in the Irrigation Department at Warud and had agricultural land at Surali would have no reason to give false evidence against his own servant the accused 1 Kaliram. Munnibai's account regarding the manner in which Ramu came to be beaten by two persons including accused No. 1 Kaliram and those two persons having ravished her finds corroboration in the first information report as well as the account given by Vishnupant (P.W. 5).
10. There are two parts of the incident. The one which has earlier in point of time is the assault by accused 1 and 2 on Ramu inside the hut. Munnibai stated that the two persons started battering her husband by means of sticks inside the hut. The learned counsel for the accused 1 and 2 laid great stress on the circumstance that the height of the hut according to Munnibai was such that if one were to stand inside the hut, his hands would touch the basa (bamboos) and therefore, it was unlikely that an assault by means of sticks might have taken place inside the hut. Vishnupant's evidence however, shows that his hut is about 7 1/2 feet high from the ground level. There was a platform about 3 feet high inside the hut on which the couple was sleeping and if the height were about 7 to 7 1/2 feet, we see no difficulty for anyone who was bent upon hitting the sleeping couple from being prevented from doing so. The panchanama of the scene of offence Ex. 15 shows that the hut was slanting on both the sides. The reference to the bamboos which is to be found in Munnibai's evidence would not have reference to the roof but the bamboos which supported the structure and merely because one could touch the bamboos while standing, it would not follow that an assault by means of a stick on the sleeping couple would not be possible. Munnibai also mentioned that an electric bulb was burning inside the hut at the time of the incident though she stated that at the time of the panchanama the bulb was found broken. This subsequent event, however, would not give a lie to her version that there was a light in the hut when the incident occurred and it may be that while the incident was in progress, the bulb might have been broken. We see no substance in the plea taken on behalf of the accused 1 and 2 that on account of the finding of the bulb broken at the time of the panchanama, it would follow that there was no electric light in the hut to facilitate the identification.
11. Kaliram accused 1 was known to Munnibai because 5 days earlier it was he who had introduced Ramu and Munnibai to Vishnupant and the accused 1 and his wife had been residing in Vishnupant's house and also working on his land. There could, therefore, be no question of a mistaken identity of accused No. 1 Kaliram in that night in the light that was available. Another circumstance which makes her account credible is that the accused 1 threatened her when she started crying, with harm to her and she stopped crying and that she followed the accused 1 and the other person to the well when they wrapped Ramu's body in the quilt and discarded it in the well.
12. It was emphasised on behalf of accused 1 and 2 on the basis of the recital in the panchanama of the scene of offence (Ex. 16), that the spot where the dead body was dropped was in the well in the field of one Bakaram Pawar and it was apparent from the evidence of Vishnupant (P.W. 5) that there was another well 200 feet away from the hut which was nearer than the well in Bakaram's field, and so the watchman who was in the nearby field could have become aware of the incident. Vishnupant's evidence shows that if a person were to stand near Bakaram's well. Mahadeo's field would be about 700 feet away. From the field of Mahadeo the orchard of Yashwantrao Agarkar is about two fields away and in Yashwantrao's field there is a hut and the watchman lives in it. Considering the distance, the threat of the accused 1 which had silenced Munnibai and the hour at which the ghastly incident occurred, it is difficult to accept that Munnibai would give a cry and invite trouble or that the watchman who was in Yashwantrao's field would be so alert as to notice the incident so far away in that dark night. It appears to us that none besides Munnibai could have watched this incident and there was no question of the prosecution not examining some other who might have seen the incident.
13. We see nothing unusual in the miscreants compelling Munnibai to accompany them because otherwise she would have been left free to raise a cry and get the villagers who could have caught the accused 1 and 2 red-handed. It was only after the body was dumped into the dry well and Munnibai made to collect all the blood stained articles from the hut and discard them into the well, that she would be allowed to be free. The finding of the body in the well in the circumstances which we have narrated gives a ring of truth to Munnibai's version. It was urged on behalf of the accused that there was no mention in the first information report about the dead body being tied and then discarded and this would show that Munnibai's account did not present the full picture and since the tying of the body had not been mentioned, her account would become suspect. When she has graphically described that her husband was wrapped in the quilt and the bundle was tied to a pole and carried away like a dead animal, we do not think that any further particulars regarding anything that was done by the miscreants could be expected. So far as this part of the narrative given by the Munnibai is concerned, we see no reason to suspect her account. She would naturally be in the hut with her husband and if the assault were to be made on him in the dead of the night, she would be the only witness to such an occurrence. Her presence was natural and her account was also consistent with the probabilities.
14. It was urged on behalf of the accused that Munnibai's statement that accused 2 was standing outside the hut when the assault was going on, would show that he had not participated in the assault. In fact she had stated in her examination-in-chief that both had participated in the assault and hit with Babhul sticks. She immediately corrected the statement regarding accused 2 standing outside by saying that both of them had assaulted her husband. In fact she has attributed all the acts to two persons from the beginning to the end and it is obvious that the statement that the accused 2 was outside must have been inadvertently made. We are satisfied that because of that statement alone it cannot be inferred that the other person had not participated in the assault. Considering that the two persons including the accused 1 came together, took part in the assault, together wrapped the dead body and carried it to the well and dumped it there and thereafter made an attempt to conceal the dead body by throwing sheaves of fodder on the body, the only inference that is deducible is that the two persons acted in concert and participated in action. The prosecution version, therefore, appears to us to be natural and acceptable.
15. That takes us to the other part of the incident regarding rape. The second part of the incident began after Ramu's dead body was thrown into the well. Munnibai (P.W. 1) spoke about the accused having ravished her in the orchard about 200 to 300 paces away from the well, the accused 1 having had sexual intercourse with her first followed by the accused 2, and the accused 1 again ravished her twice. Her evidence shows that thereafter the accused 1 left the place, but the accused 2 took her to another field at a considerable distance and ravished her thrice on a heap of fodder sheaves. The panchanama of the scene of offence Ex. 15 shows that the earth of both the places where the sexual assault was carried was dislevelled. The learned Additional Session Judge relied on the presence of semen stains on the Jangiya and underwear of accused 2 (Arts. 3 and 7) and the sari (Art. 1) which belonged to Munnibai. Mere presence of semen stains on the underwears of the adult males cannot be regarded as an incriminating circumstance in the absence of evidence to show that the semen of the same blood group as that of the accused 1 and 2 was found on the sari (Art. 1). The report of the Chemical Analyser Ex. 52 shows that the origin of the semen stains found on these clothes could not be determined. Munnibai was a married woman and as the evidence of Dr. (Miss) Dhote (P.W. 4) shows, was accustomed to sexual intercourse and since she had been sleeping with her husband in the hut in Vishnupant's field, there is nothing unusual in the presence of semen stains on her sari and those semen stains are not referable only to the accused 1 and 2. Dr. (Miss) Dhote's evidence shows that there were no marks of violence on Munnibai's body, no matting of the public hair and no injury to the external genitals. She collected vaginal swab on two slides. The report of the Chemical Analyser shows that no semen was found on the vaginal swab. Dr. (Miss) Dhote's evidence makes it clear that if traces of semen or spermatozoa are not noticed in the vaginal swab, it would definitely indicate absence of sexual intercourse or rape on the victim. The learned additional Sessions Judge has observed in para 52 of his judgment that the articles were sent to the Chemical Analyser on 25-2-1988 and were examined on or about 17-6-1988 and it was therefore, possible that in the meanwhile the sperms may not be available on the cotton swab. In Modi's Medical Jurisprudence and Toxicology, 15th edition, at page 117, it has been observed as follows :
"Spermatozoa lose their activity in the mediums of acids, strong alkalies, metallic salts, alcohol, glycerin and urine or when heated about 50 degree C, but they retain their characteristic form for a long time if not disintegrated by decomposition. In properly preserved garments they have been identified in stains of from five to eighteen years standing."
It is, therefore, difficult to agree with the view of the learned Additional Sessions Judge that the spermatozoa and semen may have been destroyed on account of the delay of only four months in examining the sample. Munnibai clearly stated that both the accused 1 and 2 while having sexual intercourse with her more than once ejaculated. If this version were true, then certainly presence of semen and spermatozoa would have been seen in the vaginal swab. Her version, therefore that she had been subjected to sexual intercourse by accused 1 and 2, cannot be accepted. We are unable to agree with the finding of the learned Additional Sessions Judge that the accused 1 and 2 committed rape on Munnibai and the conviction under section 376 read with S. 34 of the Indian Penal Code, would have to be set aside.
16. The submission on behalf of accused 1 and 2 was that if Munnibai was not telling the truth in respect of a substantial part of the story, her evidence should be rejected in its entirety. It is not possible to accept this submission because of the telltale circumstances to which we have referred while considering Munnibai's evidence in respect of the assault on her husband. Her version is corroborated by the finding of human blood on the full-pant and Manila of accused 1 Kaliram (Arts. 24 and 25) and on the full-pant (Art. 26) and Bengali shirt (Art. 27) of the accused No. 2 Bansilal. The report of the Chemical Analyser showed that the blood on the full-pant (Art. 26) was of 'O' group. Though the learned Additional Sessions Judge has put questions regarding the seizure of these clothes to the accused 1 and 2 in their examination under section 313 of the Criminal Procedure Code, no specific question was put to either of them regarding the presence of human blood of blood group 'O'. Question No. 26 to the accused 1 Kaliram was that it had come in the evidence of Suryabhan (P.W. 2) and A.S.I. Wagh that he was arrested on 16-2-1988 and the blue pant, Jangya and the Manila (Arts. 2, 3 and 4) were seized from him under the seizure memo (Ex. 14) and the answer he gave was that this was false. The question regarding Chemical Analyser's report was couched in the following words :
Q. 39. - It has come in the evidence of A.S.I. Wagh and P.C.B. No. 748 Ambadas that the seized articles along with samples collected by M.Os. were sent to office of Chemical Analyser, Nagpur along with forwarding letters (Exs. 50 and 51) which were reached by P.C. Ambadas who received acknowledgment (Ex. 39) from said office. What have you to say about it ?
Answer. - I do not know.
Q. 40. - It has come in the evidence that on examination of the articles referred to him, the Assistant C.A., Nagpur gave report (Ex. 52). What have you to say about it ?
Answer. - I do not know.
The corresponding questions put to accused No. 2 Bansilal were as follows :-
Q. 30. - It has come in the evidence of Suryabhan (P.W. 2) and A.S.I. Wagh that you were arrested on 17-2-1988 and the Bengali shirt, pant along with V.I.P. Chaddi (Arts. Nos. 20, 18 and 19 respectively) now shown to you, were seized from you under the seizure memo (Ex. 23). What have you to say about it ?
Answer. - It is false.
Q. 44. - It has come in the evidence of A.S.I. Wagh and P.C.B. No. 748 Ambadas that the seized articles along with samples collected by M.Os. were sent to office of Chemical Analyser, Nagpur along with forwarding letters (Ex. 50 and 51) which were reached by P.C. Ambadas who received acknowledgment (Ex. 39) from said office. What have you to say about it ?
Answer. - I do not know.
Q. 45. - It has come in the evidence that on examination of the articles referred to him the Assistant C.A., Nagpur gave report (Ex. 52). What have you to say about it ?
Answer. - I do not know.
The submission of the learned counsel for the accused 1 and 2 was that as it was not specifically put to the accused Nos. 1 and 2 that there were stains of human blood on their clothes and as it was not put to accused No. 2 that blood of blood group 'O' which was the same as the blood group of the deceased Ramu had not been put to the accused persons, the circumstance of finding human blood which would be an incriminating circumstance in the absence of an opportunity to the accused Nos. 1 and 2 to explain how that blood came upon their clothes, cannot be used against them. The learned Assistant Government Pleader invited us to exercise our powers under section 367 of the Criminal Procedure Code and put the questions on this point to the accused Nos. 1 and 2, if we were to take the view that the questions as put by the learned Additional Sessions Judge were vague and did not bring to the notice of the accused 1 and 2 that human blood was found on their clothes. This request was opposed on behalf of the accused Nos. 1 and 2, the learned counsel contending that the High Court would not have the powers to put such questions by recourse to Section 367, S. 367 reads as follows :-
"367. Power to direct further inquiry to be made or additional evidence to be taken. - (1) If, when such proceedings are submitted, the High Court thinks that a further inquiry should be made into, or additional evidence taken, upon, any point bearing upon the guilt or innocence of the convicted person, it may make such inquiry or take such evidence itself, or direct it to be made or taken by the Court of Session.
(2) Unless the High Court otherwise directs, the presence of the convicted person may be dispensed with when such inquiry is made or such evidence is taken.
(3) When the inquiry or evidence (if any) is not made or taken by the High Court, the result of such inquiry or evidence shall be certified to such Court."
The position with regard to the powers of the High Court in this regard has been clarified by the Supreme Court while considering the identical provisions of the Code of Criminal Procedure, 1898, in Jumman v. State of Punjab, AIR 1957 SC 469 : (1957 Cri LJ 586) as follows (Para 12) :-
"On a reference to the High Court under S. 374, the entire case is before the High Court. In fact it is a continuation of the trial of the accused on the same evidence and any additional evidence and that is why the High Court is given power to take fresh evidence under S. 375 if it so desires. There is a difference when a reference is made under section 374 and when disposing of an appeal u/s. 423 and that is that the High Court has to satisfy itself as to whether a case beyond reasonable doubt has been made out against the accused persons for the infliction of the penalty of death. In fact the proceedings before the High Court are a reappraisal and the reassessment of the entire facts and law in order that the High Court should be satisfied on the materials about the guilt or innocence of the accused persons. Such being the case, it is the duty of the High Court to consider the proceedings in all their aspects and come to an independent conclusion on the materials, apart from the view expressed by the Sessions Judge. In so doing, the High Court will be assisted by the opinion expressed by the Sessions Judge, but under the provisions of the law it is for High Court to come to an independent conclusion of its own."
Once it is clear that the confirmation proceedings are a continuation of the trial, we see no impediment in invoking S. 313 which runs as follows :-
"313. Power to examine the accused. - (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court -
(a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary,
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case."
We are not impressed by the submission of the learned counsel for the accused Nos. 1 and 2 that the term "inquiry" contemplated by sub-section (1) of S. 367 would not take in the examination of the accused under section 313(1)(a). To accede to this proposition would be unreasonably narrowing the wide powers conferred on the Court by the use of the expression "may at any stage". Putting such a limitation on the powers of the High Court under section 367 may in proper cases deprive the accused persons of an opportunity to offer explanation in respect of the incriminating circumstances which have been brought in the evidence and exposing him to the risk of a conviction even if he were to have a proper and plausible explanation to offer in respect of that circumstance and put him in the peril of suffering a conviction for no fault of his. This obviously cannot have been within the contemplation of the Legislature while investing the High Court in the confirmation proceedings with the wide powers under S. 367 of the Criminal Procedure Code. Shri Daga for the accused Nos. 1 and 2 very fairly stated before us that he has not been able to find out any case which would support the proposition which he is canvassing and relied on the observations in Sharad v. State of Maharashtra, AIR 1984 SC 1622 : (1984 Cri LJ 1738) where the Supreme Court had not adopted this course while exercising its powers under Article 136 of the Constitution. There the Supreme Court observed that there was a vital defect in some of the circumstances mentioned and relied upon by the High Court and as those circumstances were not put to the appellant in his statement under section 313 of the Criminal Procedure Code, they must be completely excluded from consideration because the appellant did not have any chance to explain them. The question as to the scope and power of the High Court under S. 367 of the Criminal Procedure Code did not come up for consideration in that case. Since we are of the view that S. 367 of the Criminal Procedure Code has invested this Court with the power to direct further enquiry to be made or additional evidence to be taken, we thought it fit to put the question regarding the finding of the human blood on the clothes (Arts. 24 and 25) of the accused 1 in view of the report of the Chemical Analyser and the finding of human blood on the clothes (Arts. 26 and 27) of the accused No. 2 as well as the finding of the blood of blood group 'O' on the full-pant (Art. 26) of the accused No. 2. The accused No. 1 stated before us that the certificate of the Chemical Analyser (Ex. 52) regarding the finding of the human blood on Arts. 24 and 25 was not true. The accused 2 stated that the blood found on his full-pant Art. 26 and the Bengali shirt Art. 27 was not Ramu's blood. Since these questions have now been put and the accused 1 and 2 were afforded an opportunity of giving their explanation, the circumstances can now be used against them.
17. Even if the position were otherwise, we do not think that on the basis of the questions which had been put by the learned Additional Sessions Judge to accused 1 and 2, the learned Additional Sessions Judge was not justified in taking the presence of the human blood stains on the clothes of the accused Nos. 1 and 2 into consideration while deciding upon their role in respect of the assault on the deceased Ramu. The questions put, clearly were about the seizure of the clothes from them with reference to the seizure memos in which it was stated that those clothes were stained with blood. Both the accused stated that the evidence about the seizure was false. The learned Additional Sessions Judge would have done well to put a specific question with regard to the articles on which the blood stains were found while referring to the report of the Chemical Analyser. However, the evidence was sufficiently brought to the notice of the accused 1 and 2 by the learned Additional Sessions Judge and it would not have been normally necessary to put a further question regarding the clothes being stained with human blood when they had denied that these clothes belonged to them except for the purpose of giving an additional opportunity and this was also provided by putting a question with regard to the report of the Chemical Analyser at Ex. 52.
18. Apart from the finding of the blood-stained clothes, the prosecution relied on the discovery of the blood-stained sticks (Arts. 21 and 22) in consequence of the disclosures made by them. The evidence of Suryabhan (P.W. 2) and A.S.I. Wagh shows that the accused No. 1 made a statement that he would point out the wooden stick and the statement was taken down in writing as portion marked A in the memorandum Ex. 20, and thereafter the stick (Art. 21) came to be seized. Though there was a mention in the memorandum Ex. 21 that the accused No. 1 Kaliram had stated that he had kept the Babhul stick hidden in a heap of wood in Vishnupant's field, the substantive evidence does not show that the accused No. 1 had made the statement that he had hidden the wooden stick at the place indicated. Their evidence also shows that after his arrest accused No. 2 Bansilal stated that he would produce the Babhul stick and that statement was recorded in the memorandum Ex. 24. Though the record purports to show that the accused No. 2 had stated that he had hidden the stick in the heap of thorny bushes, the substantive evidence does not show that accused No. 2 had stated that he had hidden the stick or he had kept it there. The mere finding of the blood-stained sticks in these circumstances would not be sufficient to show that the accused 1 and 2 had kept the sticks Arts. 22 and 23 or that they were in possession of those sticks. It could at the most be said that they had knowledge of the places where the sticks were kept though the report of the Chemical Analyser showed that these sticks were stained with human blood. Apart from the absence of the evidence of authorship, what is important is Munnibai's version in her cross-examination that it was true that the accused dropped the bundle of the dead body and the sticks used by them and the clothes in the well. The possibility of the sticks being taken or concealed in the places indicated, is ruled out by the narrative she gave about the acts of the accused Nos. 1 and 2 since the killing of Ramu until the accused 1 and 2 left after the alleged outrage on her. Disagreeing with learned Additional Sessions Judge on this point, we find that the possession or concealment of the blood-stained sticks cannot be attributed to accused Nos. 1 and 2 and the discovery evidence is not entitled to any weight.
19. The learned counsel for the accused Nos. 1 and 2 referred to a contradiction brought out in the cross-examination of Vishnupant (P.W. 5). He had referred to the accused No. 1 Kaliram telling him that his wife was saying that the accused No. 1 had killed Ramu in the field and that she was abusing him. He was contradicted by the statement before the police which was to the effect that his wife was saying that somebody had killed Ramu. The controversy was whether the word 'Kisine' (somebody) or the word 'Usine' (that man meaning accused 1 Kaliram) was used. Since this dispute was raised during the cross-examination of Vishnupant (P.W. 5) and the learned trial Judge had reserved the ruling on the interpretation, it would have been only proper to question the Investigating Officer A.S.I. Wagh on this point because the statement was recorded in his handwriting. Unfortunately a blanket reference was made in his cross-examination and what was elicited was that Vishnupant had stated the portions marked A to C in his statement before the police (Ex. 54 to 56). However nothing turns up on this contradiction because the reference by Vishnupant was to the statement made by accused 1 Kaliram that his wife was saying something which implicated the accused No. 1. In any event accused No. 1's wife Bindiya was not an eye-witness to the incident and whatever she might have stated, would not be relevant because under section 8 of the Evidence Act, it is only the conduct of the accused No. 1 alone which would be relevant and not what statement Bindiya made. The learned Additional Sessions Judge, entirely overlooked this legal position while referring to this aspect in para 38 of his judgment. Even accepting the position that Bindiya had used the word 'Usine', the prosecution would not be in a position to reap any advantage out of this and if we go to the conduct of the accused No. 1 it is apparent that he had been denying that he had any part to play in the incident and was in the village until the police arrived.
20. Returning to the evidence of Munnibai, we have already pointed out that there was no reason for her to implicate the accused 1 Kaliram falsely. She knew him before the incident and he had been in the village after the incident when Munnibai had been raising all the furor regarding the death of her husband and so far as his identify as the assailant is concerned, there can be absolutely no difficulty. On behalf of the accused No. 2 it was urged that he was not known to Munnibai before the incident and the only opportunity she had to see him was while the incident was in progress in the hut in the light of the electric light and since no identification parade was held, the identification by Munnibai for the first time in the Court six months after the incident, cannot be trusted. If Munnibai's account is to be accepted, she had the opportunity of seeing both the assailants for quite some time and in such circumstances it would be impossible for a person in her position to forget the distinguishing features of the assailants who had been subjecting Munnibai and her husband to such an ordeal. We are not taking into consideration Munnibai's version regarding the accused having left her after sunrise near the house of Vishnupant. Obviously she wanted to implicate accused 1 and 2 in the offence of rape and made the statement regarding the accused No. 2 reaching her up to the house of Vishnupant in order to lend credence to her stand. She stated that she had not given the description of the other assailant before the police. But what is of importance is that she had stated that the other person was wearing a Bengali shirt and a pyjama. From Vishnupant's evidence it is clear that though the accused No. 2 was a stranger to the village, he had been in the village because he had come to his field on the day before the incident and he knew him by his face. He also stated that he had told him that he was working as a labourer for digging the well in the field of Yeshwantrao Agarkar and had visited his field because that work had been closed on that day. In the first information report Munnibai had stated that the other person had worn Bengali shirt and white pyjama. The incident in question had occurred in the night between 15th and 16th February, 1988 and the accused No. 2 Bansilal came to be arrested at 3 p.m. on 17-2-1988. The evidence clearly showed that he was wearing a full-pant and Bengali Shirt (Arts. 26 and 27) at the time of the arrest and these clothes were seized under the seizure memo Ex. 23 and at that time they were stained with blood. It may be pointed out that A.S.I. Wagh had stated in his examination-in-chief that on 17-2-1988 Munnibai and Vishnupant identified the accused No. 2 and that he had a Bengali shirt and pant on his person. The learned trial Judge has accepted the evidence of A.S.I. Wagh on the point of identification ignoring that the identification before him by then would be hit by Section 162 of the Criminal Procedure Code, as that was the statement made in the course of the investigation. This position follows also from the observations of the Supreme Court in Ramkishan v. State of Bombay, AIR 1955 SC 104 : (1955 Cri LJ 196), but as pointed out there the exception being the evidence sought to be given by the identifier himself in regard to his mental act of identification which he would be entitled to give by way of corroboration of his identification of the accused at the trial. Though we are clear that A.S.I. Wagh could not have spoken about the identification by Munnibai in his presence because that would amount to a statement before the police, the circumstance that both Munnibai and Vishnupant had the occasion to see the accused 2 at the time of his arrest, has been firmly established by the evidence of A.S.I. Wagh and his evidence on this point has not been questioned in the cross-examination. Thus after the incident, Munnibai had the occasion to see accused 2 in the same clothes on the second day after the incident at the time when she could not have forgotten his distinguishing features. It would have been proper for the Investigating Officer to hold an identification parade, but that was not done. The learned Assistant Government Pleader urged that it was not necessary in the present case to hold an identification parade because Munnibai had stated that she could identify the other assailant in the first information report. We, however, find it difficult to agree with the learned Assistant Government Pleader on this point because it appears to us that the question of holding an identification parade would arise only in the event of the witness claiming to be in a position to identify a person whom she had not before the incident. However, though no identification parade was held in the present case, we are satisfied that it does not make Munnibai's versin suspect having regard to the special circumstances mentioned above which make her account regarding the participation of the accused No. 2, trustworthy.
21. There is one more circumstance which requires mention and it is that though Munnibai (P.W. 1) stated that she had asked Vishnupant (P.W. 5) to give her money as she wanted to leave the village and he had not paid her. Vishnupant stated that she had not demanded money from him. The submission on behalf of accused Nos. 1 and 2 was that Munnibai may have herself killed Ramu and was in a hurry to leave the village. Munnibai admitted in her cross-examination that Ramu had kidnaped her and that she was not married to Ramu. She gave her age as about 19 to 20 years and had referred to Ramu always as her husband. As long as they resided as man and wife, the question whether they were married lawfully or not, cannot legitimately arise in case like this. She denied all the suggestions about there being quarrels between her and Ramu in the night of the incident and her assaulting Ramu with stick. The learned trial Judge has rightly observed that it could not be the work of a single person and particularly a woman to have killed Ramu in the night in the solitary place and carried the dead body all by herself for being discarded in the well about 411 feet away. If she were to be the murderer, evidently she would not have stayed in the village after the day-break and her impulse would be to leave the village immediately. The absence of blood-stains on her clothes makes the theory propounded by the defence wholly unacceptable. It was quite natural for Munnibai to get scared after her husband was killed and try to leave the place. Nothing therefore, turns upon her asking Vishnupant for money for leaving the village. The next submission was that there were as many as three incised injuries on Ramu's person and they could not have been caused only by the use of sticks and therefore, the killer must have used a sharp edged weapon for assaulting Ramu and since Munnibai did not refer to the use of a sharp edged weapon but only to the use of Babhul sticks, her version became suspect. The incised injuries were on the left ear, forehead and the right ear and must have been caused by a knife or some such sharp edged weapon. Since Munnibai woke up after the beating began she could not have referred to the use of any other weapon by the accused Nos. 1 and 2 before she woke up and she could only describe the beating after waking. The probability of accused Nos. 1 and 2 being armed with a knife is apparent from Munnibai's version that while she was screaming, the accused No. 1 threatened that if she gave another scream, she would be stabbed with knife till death and so she got frightened and stopped crying. In these circumstances merely because Munnibai was not able to speak about the manner in which the incised injuries were caused, her account cannot be disbelieved. The evidence discussed above clearly shows that accused Nos. 1 and 2 went to Ramu's hut at night and after mercilessly beating him tied up his body, wrapped it in a bundle and discarded the dead body in the well. They also saw to it that the dead body was covered with sheaves of fodder and after accomplishing it left the place. Having regard to the numerous injuries found on the person of the deceased, there can be no escape from the conclusion that the accused Nos. 1 and 2 intended to cause his death and caused his death in furtherance of the common intention. Their conviction under S. 302 read with Section 34 of the Indian Penal Code was quite in order.
22. With regard to the sentence what weighed with the learned Additional Sessions Judge was that the motive for the accused Nos. 1 and 2 to commit the murder was to gratify their lust by putting Ramu out of the way and that the fact that the dead body was carried like that of an animal. We do not think, in view of our finding that rape has not been committed, that the extreme penalty of death should be imposed in this case. The act was no doubt gruesome and revolting, but then this murder was in no way different from other murders and in no event can the present case be described as one of those rarest of rare cases in which the death penalty can ultimately be imposed. In our view the lessor sentence of imprisonment for life would meet the ends of justice.
23. In the result, we partly allow the Criminal Appeal Nos. 244 and 245 of 1988, affirm the conviction of the appellants under section 302 read with S. 34 of the Penal Code and sentence them to suffer rigorous imprisonment for life. The conviction and sentence of the appellants under section 376 read with S. 34 of the Indian Penal Code are set aside. In view of the order in Criminal Appeal Nos. 244 and 245 of 1988, we reject the reference in Confirmation Case No. 2 of 1988 and instead of confirming the death sentence, award lessor sentence of imprisonment for life as stated above. The reference is answered accordingly.
Answer accordingly.
*-*-*-*-*

In Re Baskar, Petitioner.
DATE : 26-02-1990
1991-(097)-CRLJ -0535 -MAD

I.P.C. Sec 302, Sec 307 - offence of murder and attempt to commit murder - accused convicted for each offence on three counts and sentenced to be hanged by neck - reference - proSecution has proved its case beyond reasonable doubt - conviction is upheld - with regard to sentence it was held that the offence was committed not with a serious motive but due to the fact that the accused lost his mental balance - provisions of Sec 354(3) and Sec 235(2) not scrupulously followed by the trial court - sentence of death reduced to imprisonment for life.
Held
The evidence of the prosecution witnesses shows that they have given a cogent and consistent version about the manner in which the accused committed the crime. Nothing has been established during their cross- examination to discredit their testimony. Their evidence inspires confidence in the mind of the Court below and therefore the evidence can be safely relied on. With regard to the sentence awarded the court held that the new concept introduced in S. 354, Cr.P.C., sub-clause (3) of the new Code has to be followed which provides that "When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence." To assist the Court in determining the correct sentence sub-Sec (2) to Sec 235 was introduced. The said provision satisfies a dual purpose it satisfies the rule of natural justice by affording to the accused an opportunity of being heard on the question of sentence and at the same time helps the Court to choose the sentence to be awarded. In the present case there was no serious motive on the part of the accused to murder all the deceased. Only a slight quarrel took place between the accused and one of the deceased. The fact that he killed three people and seriously injured other three was only out of frustration and due to the fact that he lost his balance. Several case laws were referred to. It was held that extreme penalty of death was not called for in this case. The conviction on all the charges was confirmed and the sentence of death was modified to one of imprisonment for life.
Case Law Analysis
Allauddin Mian v. State of Bihar, AIR 1989 SC 1456 : 1989 Cri LJ 1466 Relied on. Bachan Singh's case, AIR 1980 SC 898 : 1980 Cri LJ 636 Relied on. Machhi Singh v. State of Punjab, (1983) 3 SCC 470 : AIR 1983 SC 957 : 1983 Cri LJ 1457 Relied on. In Muniappan v. State of Tamil Nadu, AIR 1981 SC 1220 : 1981 Cri LJ 726 Relied on.
JUDGE(S) :

K P Sivasubramaniam
S T Ramalingam
MADRAS HIGH COURT
JUDGMENT
SIVASUBRAMANIAM, J. :- This referred trial comes before us on a reference made by the learned Sessions Judge, Nagapattinam. The accused Basker was tried for offences u/S. 307 on three counts and u/S. 302 Indian Penal Code on three counts. Learned Sessions Judge convicted the accused u/S. 302 Penal Code on three counts and sentenced him to be hanged by his neck till his death. The accused was further convicted u/S. 307 Penal Code on three counts and sentenced to seven years rigorous imprisonment on three counts. The sentence of seven years directed to merge with the sentence of death.
2. The accused does not prefer any appeal.
3. The prosecution case in brief is as follows :- P.W. 1 Bhagalavan is residing in Aduthurai Tarangambadi Salai along with his wife the deceased Nagu an his mother deceased Sampurnathammal, Another deceased Chandra, the sister of P.W. 1 was residing with her husband Krishnamoorthy in the same place at a distance of a furlong from the house of P.W. 1. P.W. 2 injured minor Thangamani is a son of the deceased Chandra and nephew of P.W. 1. The accused also belongs to the same place and he was employed in the Special Armed Police at Madras as a Constable. About 3 months before the date of occurrence when the accused visited Aduthurai, he was breaking old tins and plastic article near the house of the deceased Chandra, when the deceased Chandra asked him to carry out the said work some distance away from her house, a wordy quarrel arose between them. The accused caught hold of the tuft of Chandra and beat her with chappals. The deceased Chandra lodged a complaint before Thiruvideimarudur Police Station as a result of which he was charged before the learned Judicial Magistrate, Kumbakonam and the case was pending at that time. As a result of the said Criminal case the accused was suspended temporarily from service. Thereafter he was living in Aduthurai.
4. On 14-2-1988 at about 10 a.m., P.W. 1 Bagalavan and P.W. 2 Rani were in the house of the deceased Chandra. The accused came there and requested Chandra to compromise the case for which P.W. 1 and Chandra were not willing. At that near the accused stated and left the place.
5. P.W. 2 Thangamani aged about 10, a son of deceased Chandra was studying in the Crescent Elementary School at Avvunialpuram. P.W. 3 was the Headmaster of the School. As Fridays and Saturdays are holidays for the School, the School is working on Sundays. At about 3.20 p.m., P.W. 2 took permission from the Headmaster to leave the school since P.W. 3 Rani had come to that place on a visit. As P.W. 2 was asked to accompany her, he left the school and was proceeding towards his house, when he was passing on the road opposite to one Balakrishnan's house, the accused came there with Veechu Aruval M.O. 1 from behind and asked him to stop. When P.W. 2 stopped, the accused slapped him on his cheeks and out him indiscriminately on his shoulder, right ear, back-side of the head chest, left hand, right hand, left forearm, left shoulder, and right knee. P.W. 1 Bhagalawan, who was also passing on the road witnessed the occurrence and tried to prevent the attack on the deceased. The accused chased him with M.O. 1 and P.W. 1 entered the house of deceased Chandra. At that time Chandra was grinding rice in front of her house. P.W. 1 pushed the fence of the house of Balu and ran followed by the deceased Chandra. On seeing the accused, Aramudan the eldest son of Chandra (not examined) Thenmozhi, a daughter of Chandra and P.W. 3 Rani who came there as a guest ran inside the house bolted inside. The accused came there and hit the door with his legs. Thereafter he chased P.W. 1 and Chandra through the backyard. When Chandra was running near the place where the bricks were stored in the house of Balu, the accused cut her on her right hand, left shoulder, head and chest, indiscriminately. Then he chased P.W. 1 Bagalavan. On seeing the accused, P.W. 1 jumped into a tank and swam across the same. This was witnessed by P.W. 3 Rani through a hole from the house of Chandra. Thereafter the accused proceeded towards East with M.O. 1. He went to the house of P.W. 1 and cut Sampurnathammal, the mother of P.W. 1 who was standing in front of her house with M.O. 1 indiscriminately. When P.W. 4 Maruthian, a servant of P.W. 1 came there to prevent the attack, the accused cut him also on his right hand, and right side chest with M.O. 1. At that time the deceased Nagu wife of P.W. 1 came there and raised an alarm. On seeing her, the accused said that she must also die and cut her with M.O. 1 indiscriminately and ran towards the river. The injured P.W. 2, Thangamani was taken to the hospital of P.W. 7 by his brother Aramudan and others. P.W. 7 advised them to take the injured to Kumbakonam.
6. In the meanwhile P.W. 1 Bagalavan reached his house and saw his wife Nagu and Sampurnathammal his brother lying dead on the earth. He also saw his servant P.W. 4 with severe cut injures. P.W. 4 informed him as to what had happened. Krishnamoorthy, the husband of the deceased Chandra also came there and he wrote a complaint to the dictation of P.W. 1. P.W. 1 signed the complaint and he took P.W. 4 Maruthiyan and went to the police station at Thiruvidaimarudar at 6 p.m. and presented the complaint to P.W. 11, Head Constable who was present at that time. He registered the case in Crime No. 46/88 and prepared express F.I.Rs. He dispatched the copies of the FIR to the Officers concerned and to the Court. The Inspector of Police, who was engaged in bandobust duty at Kumbakonam was informed through wireless message. P.W. 11 sent the injured, P.W. 4 to the hospital with a memo through P.C. 841. Ex. P. 12 the copy of the FIR sent to the Court. He sent two constables to the scene of occurrence to keep watch over the scene. At 7.15 p.m. P.W. 19 Inspector of Police reached the scene of occurrence with a photographer and received copy of the FIR. He took up investigation of the case.
7. After cutting Nagu, the wife of P.W. 1 the accused was proceeding near Pottanankulam. At that time P.W. 10 Nagarajan, who was studying in Plus two Class in Avvunialpuram School, was returning on a cycle after finishing his examination. He saw the accused coming with blood-stained Veechu Aruval. The accused threatened him to handover the cycle to him and, therefore, he gave M.O. 15 cycle to the accused. The accused went on the cycle with the weapon P.W. 10 ran saying that the accused had taken his cycle. His brother Chandrasekaran was coming from the opposite direction on another cycle and P.W. 10 reported the matter to him. Both of them went on the cycle towards the direction in which the accused had gone. The accused dropped the cycle near Kumanan Thurai and ran towards Kanchanur with the Aruval. P.W. 10 took the cycle and returned to his house.
8. P.W. 2 Thangamani, who was injured was admitted in the Kumbakonam Government Hospital. P.W. 15 treated him for the injuries sustained by him. He found the following injuries on him.
1. Lower 1/3 of the right forearm is cut into two leaving the skin alone-Grievous injury.
2. 8 cm x 3 cm x bone depth incised wound on the right hand x-ray right hand Fracture both bones lower end and fracture bone of the 5th metacorpal bone-grievous injury.
3. 10 cm x 6 cm x bone depth lacerated wound on the right shoulder joint-x-ray of chest AP view Fracture upper and humerous grievous injury.
4. 6 cm x 4 cm x bone depth lacerated wound just below the 1/3rd wound-simple injury.
5. 4 cm x 2 cm x 1 cm lacerated wound on the upper part of the right shoulder X-Ray chest AP view-Fracture right acromian.
6. For lobe right is cut into two on the pinna aspect simple injury.
7. 2 cms, x cm lacerated wound on the chest, X-Ray chest AP view - No bone injury simple injury.
8. The left hand is cut into two between the left thumb and left index finger cutting 4 metacorpal bones. X-Ray left hand :
Traumatic amputation of the proximal phalanx level at the left index finger Grievous Injury.
9. 3 cm x 1 cm lacerated wound on the lower left forearm simple injury.
10. 2 cm x 1 cm lacerated wound just above the 9th wound simple injury".
He sent intimation to the police and also requisition to the learned Magistrate for recording his dying declaration. Learned Magistrate came there at 4-50 p.m. and recorded his dying declaration. P.W. 2 was thereafter transferred to the Government Medical College Hospital at Thanjavur for further treatment. A Surgical Operation was performed on P.W. 2 in Thanjavur Hospital and a portion in the right hand of P.W. 2 was amputated. Another dying declaration was recorded in the Thanjavur Medical College Hospital by a Magistrate. On receipt of further particulars from Thanjavur hospital, P.W. 15 issued the wound certificate Ex. P. 16. Ex. P. 17 is the copy of the Accident Register.
9. On the same day at about 6-40 p.m. P.W. 15 examined injured P.W. 4 Maruthian and found the following injuries on him.
"O/E Pt. is drowsy and answering the question.
Injuries :
1. The right thumb is hanging and a lacerated wound about 10 cm x 6 cm passing between the wet of the right thumb and right index finger.
2. 3 cm x 1 cm x bone depth wound found on the right chest.
Radiological findings :
X-Ray chest PA view - No bony injury,
X-Ray right hand Fracture dislocation based of 1st metacorpal bone (right)
Fracture Proximal Phalanx right index finger,
Fracture base of Proximal Phalanx right ring finger.
Ex. P. 18 is the wound certificate, Ex. P. 19 is the copy of the Accident Register. He was sent to the Government Medical College Hospital, Thanjavur for further treatment. On receipt of further particulars from the Thanjavur hospital, P.W. 15 gave his opinion that the first injury found on P.W. 4 is grievous and the second injury is simple in nature. He was taking treatment as inpatient in Thanjavur Hospital for 25 days.
10. P.W. 19, who took up the investigation in this case, made arrangements to take photographs of the scene of occurrence. Ex. P. 25 series are the photographs taken in the place where dead body of Chandra was found. Ex. P. 26 series are taken in the place where the dead body of Sampurnathammal was found. Ex. P. 27 series related to the place where the dead body of Nagu was found. P.W. 19 saw the dead body of Chandra near the heap of bricks in the site of one Balakrishnan. He inspected the scene of occurrence at 3-30 p.m. and prepared the observation mahazar Ex. P. 2. From 9-30 p.m. to 11-15 p.m. he conducted inquest on the dead body of Chandra. He examined P.Ws. 1, 3, 5 and others during the inquest. Ex. P. 29 is the inquest report prepared by P.W. 19. The dead body of Chandra was sent to the hospital for postmortem through the constable P.W. 17. At about 11.15 p.m. he recovered blood stained earth M.O. 3, blood stained sample earth M.O. 4 and bangles M.O. 5 from the place where the dead body of Chandra was found under Ex. P. 3 Mahazar attested by witnesses. At 11-30 p.m., he recovered blood stained earth M.O. 6 and sample earth M.O. 7 in the place where P.W. 2 was cut under mahazar Ex. P. 5 attested by the same witnesses. Ex. P. 4 is the observation mahazar relating to the place where P.W. 2 was cut. At 12-30 midnight P.W. 19 inspected the place where the dead bodies of Sampurnathanimal and Nagu were lying and prepared the observation Mahazar Ex. P. 6 and rough sketch of the scene of occurrence Ex. P. 30. He conducted inquest report on the dead body of Sampurnathammal on 15-12-1988 from 2 p.m. to 4-30 a.m. He examined P.W. 1, P.W. 3, P.W. 5 and others during the inquest. Ex. P. 31 is the inquest report, relating to deceased Sampurnathammal. From 4-30 a.m. to 6 a.m. he conducted the inquest over the dead body of Nagu in the presence of Panchyatdars and examined the same witnesses during the inquest. Ex. P. 32 is the inquest report relating to deceased Nagu. P.W. 19 dispatched the dead bodies of Sampurnathammal and Nagu through P.W. 17 for post-mortem. On the day at 6-30 a.m., he recovered blood stained cement flooring M.O. 8 and sample cement flooring M.O. 9, under Ex. P. 7 Mahazar attested by the same witnesses. At about 7 a.m. he recovered M.O. 10 blood stained cement M.O. 11 sample cement flooring M.O. 12 gold earning and M.O. 13 blood stained wire basket from the place where dead body of Nagu was found under Ex. P. 8 Mahazar attested by the same witnesses. He also prepared a combined rough sketch of all the places where the three dead bodies were found. Ex. P. 33 is the rough sketch showing the place where all the dead bodies were lying. Thereafter he made arrangements for searching the accused.
11. P.W. 13 conducted the autopsy on the dead body of Chandra on 15-2-1988 at 11.30 a.m. and found the following injuries :
"External Injuries : 1. Incised cut injury of about (clean margin) 7 inches x 2 1/2 x 2 x 3 starting from the middle of the ramus of the mandible (left) encircling the half of the neck on the back up to the occipital region on the right side exposing the fractured occipital bone and also severed spinal column with fractured. IInd cervical vertebra. Cut edges of major vessels also seen.
(2) Incised injury of about (clean margin) 4 inch x 2 1/2 x 3 over the lower half of neck on the left side exposing the lateral and of fractured clavicle. This injury is 1 inch below the injury No. 1 :
(3) Incised injury of about (clean margin) 2 1/2 x 2 x 1 over the chest on the left side neat the left shoulder :
(4) Incised injury of about (clean Margin) 4 inch x 2 x 2 starting from the base of the little finger extending to the medial aspect of the lower one third of forearm exposing the fractured lower one third of ulna.
(5) Incised cut injury of about (clean margin) 10" x 3 x 1 over the right forearm (palmar aspect) exposing the lacerated muscles. On opening the thorax - No fractured ribs. Heartpale. 5 ounces. zu Lungs pale. Rt. 15 Lt. 10 Ounces Hyoid bone intact. Fractured clavicle on the lateral end on the left side present. On opening the abdomen stomach about 20 ml. of partially digested rice particles present. Liver pale 40 ounces Intestines-pale. Distended with gas. Spleen Pale. Uterus-pale. Normal size. Cavity-empty. No fractured pelvis. On opening the head-fractured occipital bone on the right side spinal column severed. At the level of second cervical vertebra-Fractured 2 cervical-vertebra present. Brain pale 45 ounces.
She is of the Opinion that the deceased appears to have died of shock and haemorrhage due to Head injury about 16 to 22 hours prior to autopsy Ex. P. 14 is the postmortem issued by the doctor.
12. P.W. 12 conducted autopsy on Sampoornathammal on 15-2-1988 at 3-30 p.m. She found the following injuries on the dead body.
"External injuries : 1 a vertical clean cut injury 6" length extending from the angle of mouth on the left side across the face in front of the ear to the frontal region laterally. Bones, muscles and vessels exposed in the face 1" breadth found the depth of the wound in the upper part is 3" Blood clots at the edges and base of the wound present.
2. Ampliation of the tips of middle three fingers on the Left hand with blood stains in the out edges of the fingers.
Thorax : Symmatorical no fracture ribs. No injury to viscera. Heart : 6 ozs. No injury. Lungs : right 18 ozs. Left 16 ozs. Section is pale hyod bone intact.
Abdomen : mild uniform distention present. No injury reviscere. Colour is pale. Liver 40 ozs. Spleen 4 ozs. stomach 6 ozs. contains little semi solid material. Mucous is pale. Kidney right 4 ozs. Left 4 1/2 ozs. Bladderempty. The Utress Atrophie.
Head : Blood stains over the scalp hair. A punchured wound over the frontal region of scalp bones on the left side on opening a punctured wound" length over the membrane on the left side in the frontal region with blood clots underneath the membrance. Extra vasation of blood over the hold of brain. A clean cut injury of one inch length and one inch depth over the brain substance on the left side frontal region with clotted blood around the wound. No injury to any other organs or bones.
The doctor was of the opinion that the deceased would appear to have died about 20 to 22 hours prior to post-mortem due to shock and haemorrhage due to injury to brain. Ex. P. 13 is the postmortem certificate issued by her.
13. P.W. 14 conducted autopsy on the dead body of Nagu at 1-30 p.m., She found the following injuries on the dead body.
"External injuries :
(1) An incised cut injury with clean margin 6" x 4" x 1". Exposing the factured tempral bone on right side 1" above right ear. Brain matter seeping through the fractured temporal bone.
(2) An incised cut injury with clean margin 3" x 1" x 2" over right side of neck just below right ear.
(3) Only thumb and index finger present over the hand. Other fingers absent exposing the metacarpo phalangeal joints. The severed fingers approximated with the cut edges of right hand and found to be tallied.
(4) An incised cut wound with clean margin 5" x 1 1/2" in between web space of little and ring finger up to wrist seen. On the right hand on both sides.
(5) An incised cut injury with clean margin 5" x 1" x 1 1/2" extending from the webs space between middle and ring finger up to wrist seen, on right hand on both palma and dorsal side.
(6) An incied wound with clean marigin 1" x 1" x 1/2" over the forearm palma side middle.
(7) An incised wound with clean cut margin 1" x 1" x 1/2" over right forearm on dorsal side middle.
(8) On the left hand only thumb is present. Other fingers absent exposing the metacarpo phalangeal joints. The severed fingers approximated without edges of left hand and the same tallied.
(9) An incised cut injury with clean margin 4" x 2" x 2 1/2" over left forearm medial side near wrist exposing the fractured ulna. (10) An incised cut injury with clean margin 6" x 3" x 2" over right shoulder back.
(11) An incised cut injury with clean margin 7" x 3 1/2" x 2" starting from the nape of neck on the right side extending up to upper border of left scapula.
(12) An incised cut injury with clean margin 5" x 1" x 1" extending from lateral end of left eye brow to the back of the left ear cutting the ear (left) into 2 halves in the middle. Fractured maxilla seen through the injury.
(13) An incised cut injury with clean margin 4" x 1" x bone deep over parietal bones (both) near anterior margin fractured parietal bones seen.
Ex. P. 15 is the postmortem certificate. The doctor was of the opinion that the deceased would appear to have died due to shock and harmorrhage due to injury to vital organs like brain, skull and other multiple injuries.
14. On 16-2-1988, P.W. 19 arrested the accused at the bus stand at Kanchanur at 4-30 p.m. in the presence of P.W. 9 and another. When the accused was questioned, he gave a confessional statement, the admissible portion of which is Ex. P. 9. He volunteered to produce the Veech Aruval used by him and also pointed out the place where the cycle was abandoned by him. P.W. 19 seized M.O. 14 blood stained lungi from the accused under mahazer Ex. P. 10 attested by the same witnesses. The accused took P.W. 19 and the witnesses to the northern bund of Cauveri river and took out M.O. 1 from the bamboo bush belonging to one Govindasami which was seized under Ex. P. 13 mahazer attested by witnesses. On the next day, the accused was produced before Court for remand. P.W. 19 examined other witnesses on different dates. P.W. 10 produced M.O. 15 Cycle in the police station which was recovered under Form 95 on 22-2-1988. The material objects were sent to Chemical Examiner for his report. Ex. P. 21 is the report received from the Chemical Examiner and Ex. P. 21 is the report received from the Chemical Examiner and Ex. P. 22 is the report of Zerologist. After completing the investigation, P.W. 19 laid down the charge-sheet in this case on 10-6-1988.
15. When the accused was questioned u/S. 313 Criminal Procedure Code on the incriminating circumstances appearing against him, he denied the occurrence and pleaded not guilty. He did not examine any witness on his side.
16. Learned Sessions Judge after careful consideration of the entire evidence found that the prosecution has proved its case and therefore he convicted and sentenced the accused as stated above.
17. The only question to be decided in this case is whether the prosecution has proved its case beyond all reasonable doubt and if so, what is the proper sentence to be awarded against the accused.
18. The fact that the deceased Chandra, Sampoornathammal, and Nagu, the sister, mother and wife of P.W. 1 respectively died of homicidal violence due to the cut injuries sustained by them on 14-2-1988 is not in dispute. We have already referred to the evidence of the doctors P.W. 13, P.W. 12 and P.W. 14 who conducted the autopsy on the dead bodies of Chandra, Sampoornathammal and Nagu respectively. They found number of incised cut injuries on the dead bodies, the details of which are found in Exs. P. 14, P. 13 and P. 15, the postmortem certificates. The doctors were of opinion that the deceased persons would appear to have died due to shock and haemorrhage due to the injuries to the vital organs of the body. As a matter of fact the cause of death has not been challenged on behalf of the accused in this case. Similarly the injuries found on P.Ws. 1 and 4 were also caused by a weapon like M.O. 1. This fact also is not in dispute. What is contended on behalf of the accused is that the accused did not cause those injuries and that he had been falsely implicated in this case. Therefore it is unnecessary to enter into any detailed discussion regarding the injuries sustained by the deceased and P.Ws. 2 and 4.
19. Miss Lakshmi Panicker, learned counsel appearing for the accused submitted that the prosecution has not come out with complete truth and the genesis of the occurrence has been deliberately suppressed. Further she contended that the prosecution has not proved any motive for the murder. According to her the version spoken to by P.Ws. 1 to 4 appeared to be highly artificial and unnatural. Even though several independent people were present during the course of series of incidents, none of them had been examined in this case. The only independent witness by name Jothi, P.W. 5 had turned hostile and did not support the prosecution case. This according to the learned counsel for the accused would show that the prosecution has not come out with truth. Learned counsel for the accused further submitted that it is highly impossible to accept the prosecution case that the accused began to cut several persons indiscriminately all of a sudden without any provocation whatsoever from the prosecution witnesses. According to her if really the accused had come to the house of the deceased Chandra with an intention to attack her, there was no reason why he had chosen to cut P.W. 2 who was coming on the road instead of entering into the house and attacking Chandra, who was sitting in front of the house at that time. It is the case of the learned Counsel for the accused that something would have happened between P.W. 1 and the accused as the accused is alleged to have attacked P.W. 2 on the road and that the prosecution has suppressed the genesis of the occurrence with certain other ulterior objects and for the reasons best known to them. We are unable to accept the said contentions of the learned Counsel for the accused.
20. The prosecution relies on the evidence of P.Ws. 1 to 4 to prove its case. As already noticed, the accused attacked P.W. 2 when he was returning from the school at about 3.25 p.m. on 14-2-1988. It is no doubt true that there was no provocation for the accused to attack P.W. 2 who had nothing to do with the dispute between the accused and the deceased Chandra. That by itself cannot be a reason to discredit the testimony of the witnesses in this case. We do not know how the mind of the accused worked at that time when he committed this dastardly crime. When he attacked P.W. 2 and cut him indiscriminately, P.W. 1 who came there accidentally, tried to prevent further attacks on P.W. 2. On seeing P.W. 1 the accused chased him and therefore P.W. 1 ran into the house of the deceased Chandra, who was grinding rice at that time in frant of her house. On seeing the accused running with an Aruval, she also ran behind P.W. 1. P.W. 1 removed the fence of the house of one Balu and ran away. The accused caught hold of the tuft of Chandra and cut her indiscriminately as described above. P.W. 1 was able to jump into the tank situated nearby and swam across for safety. Since P.W. 1 escaped, the accused went to his house where the other two deceased namely Nagu and Sampoornathammal were present. The accused cut Sampoornathammal, the mother of P.W. 1 with M.O. 1 indiscriminately and when their servant P.W. 4 Maruthian came there running to prevent the accused from cutting further, the accused cut him also with M.O. 1. At that time, the deceased Nagu, wife of P.W. 1 came there raising an alarm. The accused stated that she must also die and cut her indiscriminately. The accused, after inflicting fatal injuries on them ran away towards the river situated nearby. All the deceased died on the spot. All the witnesses spoke categorically about the attack of the accused on P.W. 2, the deceased Chandra, Sampoornathammal and Nagu. P.W. 1 is the person who actually the attack on P.W. 2 Thangamani. P.W. 3 Rani who happened to be in the house of deceased Chandra on that date was able to see the attack on her by the accused. As far as the attack made on deceased Sampoornathammal and Nagu, P.W. 4 has given a clear account about the manner in which they were attacked by the accused. It has to be noted in this connection that P.Ws. 2 and 4 are injured witnesses. It is seen from the medical evidence that both of them were seriously injured and as a matter of fact one of the hands of P.W. 2 had to be amputed. We are unable to find any reason why these witnesses should depose falsely against the accused if somebody had attacked them. Merely because P.W. 5 turned hostile, it is not possible to say that the version of prosecution witnesses is not believable. A perusal of their evidence shows that they have given a cogent and consistent version about the manner in which the accused committed the crime. Nothing has been established during their cross-examination to discredit their testimony. Their evidence inspired confidence in the mind of the Court below and therefore we can safely rely on their evidence.
21. Learned Counsel for the accused submitted that the prosecution has not proved any motive for the murder. It is in evidence that about 3 months before the date of the occurrence, there was a wordy altercation between the accused and the deceased Chandra in front of her house during which the accused caught hold of her tuft and beat her with chappals. Thereafter she gave complaint against him at the police station and subsequently the accused was prosecuted before the Court. It appears that subsequently he was convicted and sentenced to six months rigorous imprisonment. Consequent to the criminal prosecution, the accused was temporarily suspended from his service. This is projected as the motive for the murder by the prosecution. The said incident has been clearly spoken to by P.W. 1 and P.W. 2. According to P.W. 1 when he was in the house of his sister deceased Chandra at about 10 a.m. on 14-2-1988, the accused came there and requested them to compromise the matter. Since the matter was pending before the Court, she refused to do so. At that time, the accused threatened to cause harm to them and went away. A little later at about 3.30 p.m. on the same day, he came with M.O. 1 to the house of the deceased Chandra. Before entering her house, he saw P.W. 2 coming on the road. Immediately cut the three deceased persons and P.W. 4. Whether the earlier incident referred to would have acted as a motive or not is a matter which cannot be decided at this stage. It depends upon the way in which the mind of the accused acted and how he viewed things. The fact remains that the deceased Chandra gave a criminal complaint as a result of which he lost his job. That would have caused serious provocation on the part of the accused for committing the murder of three innocent persons. Therefore it is not possible to say that the prosecution has not established any motive in this case.
22. On a careful consideration of the evidence of P.Ws. 1 to 4 and the medical evidence, we are of the view that the prosecution has established that it is the accused who has caused the injuries on the three deceased persons and on P.Ws. 2 and 4. Accordingly we hold that the prosecution has proved its case beyond all reasonable doubt. We do not find any ground to differ from the findings rendered by the learned Sessions Judge in this regard.
23. Miss Lakshmi Panicker, learned Counsel appearing for the accused would however strenuously contend that the sentence of death passed against the accused is not called for as it is not one of the rarest of rare cases as observed by the Supreme Court. She pleaded that the accused certainly had no motive to murder the three deceased persons in this case and cause injuries to P.Ws. 2 to 4. According to her, since the prosecution had failed to establish the genesis of the occurrence, it was not possible to come to the conclusion that the accused had acted in a dastardly manner. She further contended that the accused was serving in the police force and he has lost his job and therefore he must have been in agitated mood. In any event, according to her it is not a case where the extreme punishment is called for.
24. Yet another contention was raised by the learned Counsel for the accused to the effect that the learned Sessions Judge committed a serious error in questioning the accused in the matter of awarding death sentence. According to her the trial Court treated the requirement of giving the opportunity to the accused as a mere formality. She pointed out that the procedure contemplated under S. 235, Criminal Procedure Code must be scrupulously followed and that the requirement of hearing the accused is intended to satisfy the rule of natural justice as the Courts are required to make the choice from a wide range of discretion in the matter of sentencing. In order to assist the Court in determining the correct sentence to be imposed the legislature introduced sub-section (2) to S. 235 of the Code. Since the provision is intended to give the accused an opportunity to place before the Court all the relevant material having a bearing on the question of sentence, there can be no doubt that the provision is salutary and must be strictly followed. According to her it is a mandatory provision and it cannot be treated as a mere formality. The decision taken without following the requirement of Section 235(2) of the Code in letter and spirit, would vitiate the sentence of death. In support of the above contention, learned Counsel for the accused relied on the decision of the Supreme Court in Allauddin Mian v. State of Bihar, AIR 1989 SC 1456 : (1989 Cri LJ 1466).
25. As far as the question of sentence is concerned we feel that the submission of the learned Counsel for the accused in this regard are sustainable. We have bestowed our careful consideration on this question and we feel that awarding of death sentence in a case like this is not called for. Section 302, Indian Penal Code prescribes death or life sentence as penalty for murder. The Parliament took note of contemporary criminological thought and movement, and introduced a new concept of punishment in case of murder in S. 354, Cr.P.C. Section 354, sub-clause (3) of the new Code provides as follows :-
"When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence."
Therefore, according to the new Code, imprisonment for life is a rule and death sentence an exception in the matter of awarding punishment for murder. If a death sentence is to be awarded to a person found guilty of murder, the Court awarding it has to justify it by giving special reasons. Therefore Courts have not laid down any hard and fast rule of universal application and each case must be decided on its own merit and punishment should be awarded suitable to each case. It is the duty of the Courts to award appropriate punishment in exercise of their discretion must be exercised judiciously and not arbitrarily. We are conscious of the fact that where the offence committed is vindictive, pre-planned and cold-blooded and for gain, ordinarily death sentence should be imposed. The question of sentence has to be determined not with reference to the volume or character of the evidence adduced by the prosecution, but it must be with reference to the fact whether there are extenuating circumstances which can be said to mitigate the enormity of the crime. The preponderance of judicial opinion is that in cases of murders committed on the spur of the moment and actuated by anger, jealousy, pride or sense of honour the murder may call for the lesser penalty. On the other hand, Courts have categorically held that when murder has been planned before hand and has been committed with cruelty or for a sordid purpose, and without the least trace of any spirit of fair play or sportsmanship without giving a chance to the victim, it should necessarily be furnished with the extreme sentence. The Supreme Court in the case referred to above made the following observation regarding sentence (Para 9) :
"While rejecting the demand of the protagonist of the reformatory theory for the abolition of the death penalty the legislature in its wisdom thought that the special reasons clause should be a sufficient safeguard against arbitrary imposition of the extreme penalty. Where a sentence of severity is imposed, it is imperative that the Judge should indicate the basis upon which he considers a sentence of that magnitude Justified. Unless there are special reasons, special to the facts of the particular case which can be catalogued as justifying a severe punishment the Judge would not award the death sentence. It may be stated that if a Judge finds that he is unable to explain with reasonable accuracy the basis for selecting the higher of the two sentences, his choice should fall on the lower sentence. In all such cases the law casts an obligation on the Judge to make his choice after carefully examining the pros and cons of each case. It must at once be conceded that offenders of some particularly grossly brutal crimes which send tremors in the community have to be firmly dealt with to protect the community from perpetrators of such crimes. Where the incidence of a certain crime is rapidly growing and is assuming menacing proportions, for example, acid pouring or bride burning, it may be necessary for the Courts to award exemplary punishments to protect the community and to deter others from committing such crimes. Since the legislature in its wisdom thought that in some rare cases it may still be necessary to impose the extreme punishment of death to deter others and to protect the society and in a given case the country, it left the choice of sentence to the judiciary with the rider that the Judge may visit the convicts with the extreme punishment provided there exist special reasons for so doing. In the face of this statutory provision which is consistent with Art. 21 of the Constitution which enjoins that the personal liberty or life of an individual shall not be taken except according to the procedure established by law, we are unable to countenance counsel's extreme submission of death in no case."
The Supreme Court modified the sentence of death to one of life imprisonment in that case with the following observations.
"12. It will be seen from the above, that the Courts below are considerably moved by the fact that the victims were innocent and helpless infants who had not provided any provocation for the ruthless manner in which they were killed. No one can deny the fact that the murders were ghastly. However, in order that the sentences may be properly graded to fit the degree of gravity of each case, it is necessary that the maximum sentence prescribed by law should, as observed in Bachan Singh's case, AIR 1980 SC 898 : (1980 Cri LJ 636) (supra), be reserved for the rarest of rare cases which are of an exceptional nature. Sentences of severity are imposed to reflect the seriousness of the crime, to promote respect for the law, to provide just punishment for the offence, to afford adequate deterrent to criminal conduct and to protect the community from further similar conduct. It serves a three-fold purpose (i) punitive, (ii) deterrent and (iii) protective. That is why this Court in Bachan Singh's case observed that when the question of choice of sentence is under consideration the Court must not only look to the crime and the victim but also the circumstances of the criminal and the impact of the crime on the community. Unless the nature of the crime and the circumstances of the offender reveal that the criminal is a menace to the society and the sentence of life imprisonment would be altogether inadequate, the Court should ordinarily impose the lesser punishment and not the extreme punishment of death which should be reserved for exceptional cases only. In the subsequent decision of Machhi Singh v. State of Punjab, (1983) 3 SCC 470 : AIR 1983 SC 957 : (1983 Cri LJ 1457), this Court, after culling out the guidelines laid down in Bachan Singh's case, observed that only in those exceptional cases in which the crime is so brutal, diabolical and revolting as to shock the collective conscience of the community, would it be permissible to award the death sentence. In the present case, unfortunately the material for choice of sentence is scanty. The motives for the crime is obscure, the one stated, namely, the quarrel between two infants of both sides, does not seem to be correct. The killings were not for gain. The charge shows that the target was P.W. 6, the father, and not the two infants. The killing of the two infants was not the contemplation of any of the accused. Both the firls were the victims of the offenders' resulting from frustration at the escape of their target. There is nothing so uncommon about the crime as to make the case an exceptional one. The mere fact that infants are killed without more, is not sufficient to bring the case within the category of the rarest of rare cases."
26. Bearing the abovesaid principles in mind let us now consider the facts of the present case. As already noticed, there was no serious motive on the part of the accused to murder any of the deceased. There was some enmity between the accused and one of the deceased Chandra on account of a petty quarrel that took place three months before the date of occurrence. Consequent to the criminal prosecution launched at the instance of the deceased Chandra, he was temporarily suspended from service. The immediate provocation appears to be the refusal of the deceased Chandra and P.W. 1 to accede to the suggestion of compromise made by the accused on the date of occurrence. This shows that the accused had no idea of causing any wrong to the deceased persons and P.Ws. 2 and/or 4. The blunt refusal of P.W 1 and the deceased Chandra to accede to the request of the accused should have provoked the accused and considering the said instance and the fact that he had lost his job as a result of sentence of six months' rigorous imprisonment, we can safely come to the conclusion that the accused lost his balance and became frustrated which was beyond his control. Further when he saw P.W. 2 a son of deceased Chandra coming on the road, he must have lost his balance and attacked him. When P.W. 1 intervened, he chased him to the house of deceased Chandra. On seeing Chandra, he attacked her indiscriminately. Since P.W. 1 escaped he went to his house and cut the other two, namely the mother and wife of P.W. 1. This only shows that the accused must have lost his senses and must have been in a troubled state of mind as otherwise there was no reason as to why he should cut two innocent ladies found in the house of P.W. 1. It is no doubt true that the accused was not justified in killing 3 innocent persons and causing injury to a small boy who had nothing to do with the quarrel with the deceased Chandra. Therefore it is not possible to hold that the accused was in a position to weigh and analyse in a rational manner as to what he was about to do was proper or not. The Supreme Court has taken the view that the extreme penalty of death is not called for in such circumstances. In Muniappan v. State of Tamil Nadu, AIR 1981 SC 1220 : (1981 Cri LJ 726), the Supreme Court held as follows (Para 2) :-
"all murders are terrific and if the fact of the murder being terrific is an adequate reason for imposing the death sentence, then every murder shall have to be visited with that sentence. In that event, death sentence will become the rule, not an exception and S. 354(3) will become a dead letter."
Further, the Supreme Court pointed out that it is the bounden duty of the Judge to ease aside the formalities of the Court scene and approach the question of sentence from a broad sociological point of view. While the Court is considering the question of sentence, it is in an altogether different domain in which facts and factors which operate are of an entirely different order than those which come into play on the question of conviction. Hence merely because three persons were killed, the crime cannot be termed as gruesome and ghastly done with a deliberate motive calling for an extreme penalty of death. As the Supreme Court has pointed out in AIR 1989 SC 1456 : (1989 Cri LJ 1466) motive for the crime in this case is also obscure and the killings were not for gain. Further the killings of Sampoornathammal and Nagu and the attack of P.Ws. 2 and 4 were not in the contemplation of the accused. They were the victims of unfortunate circumstances resulting from frustration. Therefore we are of the view that extreme penalty of death is not called for in this case.
27. Regarding the method of questioning the accused by the learned Sessions Judge in the matter of sentence, the guidelines indicated by the Supreme Court in the abovesaid cases are worth mentioning.
"10. ......... The requirement of hearing the accused is intended to satisfy the rule of natural justice. It is a fundamental requirement of fair-play that the accused who was hitherto concentrating on the prosecution evidence on the question of guilt should, on being found guilty, be asked if he has anything to say or any evidence to tender on the question of sentence. This is all the more necessary since the Courts are generally required to make the choice from a wide range of disaction in the matter of sentencing. To assist the Court in determining the correct sentence to be imposed the legislature introduced sub-section (2) to Section 235. The said provision therefore satisfied a dual purpose; it satisfies the rule of natural justice by affording to the accused an opportunity of being heard on the question of sentence and at the same time helps the Court to choose the sentence to be awarded. Since the provision is intended to give the accused an opportunity to place before the Court all the relevant material having a bearing on the question of sentence there can be no doubt that the provision is salutary and must be strictly followed. It is clearly mandatory and should not be treated as a mere formality. Mr. Garg was, therefore justified in making a grievance that the trial Court actually treated it as a mere formality as is evident from the fact that it recorded the finding of guilt on 31st March, 1987, on the same day before the accused could absorb and overcome the shock of conviction they were asked if they had anything to say on the question of sentence and immediately thereafter the decision imposing the death penalty on the two accused was pronounced. In a case of life or death as stated earlier, the Presiding Officer must show a high degree of concern for the statutory right of the accused and should not treat it as a mere formality to be crossed before making the choice of sentence. If the choice is made, as in this case, without giving the accused an effective and real opportunity to place his antecedents, social and economic background, mitigating and extenuating circumstances, etc., before the Court, the Court's decision on the sentence would be vulnerable. We need hardly mention that in many cases a sentencing decision has a more serious consequences on the offender and his family members than in the case of a purely administrative decision; a fortiori, therefore, the principle of fair play must apply with greater vigour in the case of the former than the latter. An administrative decision having civil consequences, if taken without giving a hearing is generally struck down as a violative of the rule of natural justice. Likewise a sentencing decision taken without following the requirement of sub-section (2) of S. 235 of the Code in letter and spirit would also meet a similar fate and may have to be replaced by an appropriate order. The sentencing court must approach the question seriously and must endeavour to see that all the relevant facts and circumstances bearing on the question of sentence are brought on record. Only after giving due weight to the mitigating as well as the aggravating circumstances placed before it, it must pronounce the sentence. We think as a general rule the trial Courts should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender. In the present case, as pointed out earlier, we are afraid that the learned trial Judge did not give attention, sufficient importance to the mandatory requirement of sub-section (2) of the Code. The High Court also had before it only the scanty material placed before the learned Sessions Judge when it confirmed the death penalty."
The above observation is extracted in this Judgment so that the trial Courts may follow the said norms hereafter.
28. In the result the conviction on all the charges is confirmed and the sentence of death is modified to one or imprisonment for life. The sentence of 7 years is directed to run concurrently with the sentence of imprisonment for life. The reference is answered accordingly.
Order accordingly.
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