State, Petitioner V. Setalu Sudam Reddy, Opposite
Party.
DATE : 11-10-1991
1992-(098)-CRLJ -3503 -ORI
JUDGE(S) :
D M Patnaik
G B Patnaik
ORISSA HIGH COURT
JUDGMENT
G. B. PATNAIK, J. :- The learned Additional Sessions Judge, Ganjam,
Berhampur, having convicted the accused under S. 302, Indian Penal
code, and having sentenced him to be hanged by the neck till he
is dead has made the reference to this Court under S. 366 of the
Code of Criminal Procedure. The accused has preferred the Criminal
Appeal from the Jail against his conviction and sentence passed
by the learned Additional Sessions Judge under S. 302 as well
as under S. 324, Indian Penal Code. By the judgment of the learned
Additional Sessions Judge, the accused has been convicted under
S. 302, Indian Penal Code for killing a young girl called Sabita
Reddy and has further been convicted under S. 324, Indian Penal
Code, for causing hurt to P.Ws. 1 and 10 and has been sentenced
to rigorous imprisonment for two years on that count.
2. The prosecution case, in brief, is that one and half years
prior to the date of occurrence, a quarrel had ensued between
the accused and the father of the deceased and on account of the
said quarrel, the accused had borne a grudge. On 20th of June,
1990, at 11.00 a.m. deceased a young girl of six years' old was
playing on the village 'Danda' along with her friends. The accused
all on a sudden lifted the deceased and entered into his house
and bolted the doors from inside. Several persons who saw the
lifting of the girl raised hullah. P.Ws. 1, 4 and 10 came running
and knocked the door of the accused, but the door was found to
be closed. At last they broke open the back-side door and entered
into the house and found deceased Sabita lying dead with bleeding
injuries and a small 'Kati' (M.O. I.) stained with blood was lying
there. They also found the accused himself standing there with
another 'Khanda-Kati' (M.O. II) and when P.Ws. 1 and 10 advanced
towards the accused, he struck them with the weapon in his hand
as a result of which both P.Ws. 1 and 10 sustained injuries and
thereafter the accused escaped through the back-door with M.O.
II in his hand. P.W. 1 then went to the police station and lodged
a report which was treated as F.I.R. (Ext. 1). The two injured
persons, namely P.Ws. 1 and 10 were examined medically on police
requisition. The police then registered a case and started investigation
and on completion of the investigation filed charge-sheet. On
being committed, the accused stood his trial.
3. The defence plea is one of denial.
4. The prosecution examined 11 witnesses in all. The defence has
examined none. Of the 11 prosecution witnesses, P.Ws. 5 and 6
deposed about the accused lifting the child and entering into
his house. P.Ws. 1, 4 and 10 deposed about their breaking open
the door of the house of the accused and entering inside, their
seeing the deceased lying injured with bleeding injuries and accused
standing there. P.W. 2 is the doctor who examined P.Ws. 1 and
10 and P.W. 3 is the doctor who had conducted the autopsy on the
dead body of the deceased. P.W. 7 is the Sub-Inspector of Police
who apprehended the accused near Khajuria Bandha tank and P.W.
8 is the constable who took the dead body of Sabita for post-mortem
examination. P.W. 9 is the magistrate who had recorded the confessional
statement of the accused and P.W. 11 is the Investigating Officer.
5. The learned Additional Sessions Judge relying upon the evidence
of P.Ws. 1, 4, 5, 6 and 10 as well as the confessional statement
of the accused, Ext. 14, came to the conclusion that it was the
accused who was the author of the injuries found on the deceased
Sabita as well as in respect of the injuries found on P.Ws. 1
and 10. Considering the act of the accused to be a brutal one,
the learned Additional Sessions Judge convicted the accused under
S. 302, Indian Penal Code, and awarded the extreme penalty of
death. So far as the conviction of the accused under S. 324, Indian
Penal code is concerned, penalty of rigorous imprisonment for
two years has been awarded by the learned Additional Sessions
Judge.
6. Mr. Mund, the learned Counsel appearing for the accused, places
before us the evidence of P.Ws. 1, 4, 5, 6 and 10 but is unable
to point out any infirmity in their statements so as to impeach
their testimony. We shall scrutinise their evidence to find out
whether there is any infirmity in their testimony. But having
failed in his attempt to impeach the testimony of these witnesses,
Mr. Mund submits that even though the accused might have committed
murder of deceased Sabita, yet there is no special reason, special
to the facts and circumstances of the present case, which can
be catalogued as justified for a severe punishment of death sentence,
particularly when the crime in question cannot be said to have
sent tremors in the community to be firmly dealt with to protect
the community from the perpetrators of such crime.
7. Before considering the question whether the extreme penalty
of death should be awarded in the facts and circumstances of the
present case, we think it appropriate to consider the evidence
on record to find out whether the prosecution has been able to
establish the charge beyond all reasonable doubts. Admittedly,
nobody has seen the accused inflicting the blows on the deceased
by means of a knife. But P.Ws. 5 and 6 saw the accused picking
up the deceased from the village 'Danda' and entering into his
house and bolting the doors from inside. P.W. 5 in is evidence
states that on the date of occurrence at 11.00 a.m. while he was
sitting on the verandah of the house of one Sreeramulu he heard
the shout that Sudam took away one child and when he saw he found
Sudam running holding a child and entered into his house. He,
of course, could not identify the child which Sudam was carrying.
He further states that on verification he could know that the
missing child was Sabita who had been carried away by Sudam. He
further states that he tried to open the door, but the door was
bolted. Though he has been cross-examined, but nothing has been
elicited from his evidence to impeach his testimony.
P.W. 6 is another witness who also deposes about the lifting of
a child from the village 'Danda' by the accused. She states that
while she was going on the village 'Danda' and was near the house
of one Dillesu, she saw accused picking up one child and then
running entered into his house and bolted the doors from inside.
She raised hullah that Sudam took away one child and some time
later she went to the front verandah of the house of the accused
and found a girl aged 5 years lying dead inside the room. According
to her evidence she could learn that the girl was called Sabita,
daughter of Mahadev Reddy. She has also been cross-examined by
the defence, but nothing has been elicited to impeach her evidence,
as stated earlier.
On the basis of the evidence of the aforesaid two witnesses, P.Ws.
5 and 6, we have no hesitation to hold that the prosecution has
been able to establish through cogent and reliable evidence that
on the date of occurrence at 11.00 a.m. the accused took away
the deceased Sabita from the village 'Danda' and entering into
his house bolted the doors from inside.
The next circumstance that is established through the prosecution
evidence is that when the door of the accused was broken open
the deceased was found dead with bleeding injuries and the accused
was standing there with M.O. II in his hand. This has been established
through the evidence of P.Ws. 1, 4 and 10. P.W. 1 is the uncle
of the deceased and according to him 20-6-1990 and 11-00 a.m.
while he was reading in his house and Sabita was playing with
other village girls of the village 'Danda', there was a hullah
in the village that accused Sudam took away one child. Hearing
this hullah he came out and on searching Sabita was found missing.
Then he along with Abhi Sahu (P.W. 4), Krushnamurthy Reddy (P.W.
10) knocked the door of the accused, but as the accused did not
respond, he brought a crow-bar and broke open the backside door
of the house of the accused. Then all three of them entered into
the house and in the eastern room found Sabita lying dead with
bleeding cut injuries and a small Kati was lying there. The accused
was standing there holding a sword and as they advanced towards
the accused, the accused gave him one blow on his head. The accused
also gave another blow which hit the left shoulder of P.W. 1.
Then P.W. 10 also proceeded towards the accused, but he was also
assaulted and the accused holding the 'Khanda-Kati' ran away through
the back side door. P.W. 1 had lodged the information at the police
station and in the FIR he had given a full account of the occurrence
as to what he stated in Court. There has been a lengthy cross-examination
of P.W. 1, but Mr. Mund has not pointed out any material in his
cross-examination to impeach his version. On scrutiny of the evidence
of P.W. 1, we are of the considered opinion, that he is a wholly
reliable witness and his evidence can be safely relied upon the
bring home the charge against the accused-appellant. The evidence
of P.W. 1 has been fully corroborated by the evidence of P.Ws.
4 and 10 all three of whom had entered simultaneously into the
house of the accused by breaking open the back door by means of
the crow-bar which P.W. 1 had brought from his house. We have
also scrutinised the evidence of P.Ws. 4 and 10, but nothing has
been pointed out from their cross-examination to discard their
testimony. On the reliable evidence of P.Ws. 4 and 10, it can
be unhesitatingly held that the prosecution has been able to establish
through cogent materials that when the house of the accused was
broken open, the deceased was found lying dead with bleeding injuries
and a 'kati' was lying near her and the accused was standing there
with the 'Khanda-kati' in his hand and when P.Ws. 1 and 10 approached
towards the accused to apprehend him, they were also assaulted,
whereafter the accused ran away from the place of occurrence.
The Serologist's report (Ext. 10/1) indicates that human blood
was found on the knife (M.O.I.). Another important incriminating
piece of evidence against the accused is his own confessional
statement (Ext. 14). The magistrate who recorded the confession
has been examined as P.W. 9 Mr. Mund in course of argument fairly
states that there is no infirmity with the confessional statement
and it fully corroborates the circumstances established by the
prosecution witnesses and the confessional statement must be held
to be a voluntary one. P.W. 9, the magistrate, has deposed in
his evidence as to the precautions he had taken before recording
the confession. We have carefully examined the confessional statement
(Ext. 14). The accused clearly stated in his confessional statement
recorded by the magistrate that as he had declared that he would
kill somebody from the family of Mahadev Reddy, on the date of
occurrence when he found the young girl Sabita on the road, he
picked her up and took her to his house and bolted the doors and
then with the knife he cut the neck of the deceased as a result
of which the deceased died. No doubt, he has stated further that
P.W. 10 had asked him to kill somebody from Mahadeb's family,
but there is no material in support of that part of the statement.
The confessional statement of the accused, as discussed above,
fully implicates himself and corroborates the evidence of P.Ws.
5 and 6 with regard to the lifting of the child as well as corroborates
the evidence of P.Ws. 1, 4 and 10 with regard to inflicting the
injuries on the neck of the deceased as a result of which the
deceased died. The confessional statement is a true and voluntary
one and, therefore, can form the sole basis of conviction of the
accused-appellant. In his statement under S. 313 of Code of Criminal
Procedure, even the accused does not disown the confession, but
states that as he was not in a proper state of mind, he had said
so before the magistrate. But there is not an iota of material
to indicate about any improper state of mind of the accused. In
the premises, as aforesaid, the confessional statement (Ext. 14)
which has been held by us to be a true and voluntary one, fully
implicates the accused in the commission of the murder of the
deceased.
8. At this stage, it would be proper for us to examine the evidence
of the doctor who had conducted the autopsy on the dead body of
the deceased, namely P.W. 3, P.W. 3 states in his evidence that
he found seven external injuries of which there were four incised
wounds, one slash wound, one abrasion and multiple small abrasions.
He opined the injuries to be ante mortem in nature and injuries
1 to 5 to have been caused by sharp heavy cutting weapon like
"kati" etc. He categorically stated that the injuries
were homicidal in nature and injury No. 1 alone was sufficient
to cause death instantaneously. According to him death was due
to shock on account of the aforesaid injuries. In view of the
evidence of the doctor (P.W. 3), the conclusion of the learned
Additional Sessions Judge that the deceased met a homicidal death
remains unassailable and, in fact, Mr. Mund for the accused-appellant
does not assail the said conclusion and, in our opinion, rightly
so.
9. In view of the aforesaid evidence, we have no hesitation to
confirm the conclusion of the learned Additional Sessions Judge
that it is the accused who is the perpetrator of the crime and
who caused the injuries in question on the deceased as a result
of which the deceased died and, therefore, the prosecution must
be held to have established the charge under S. 302, Indian Penal
Code, against the accused-appellant, beyond all reasonable doubts.
10. The question, however, further remains for consideration is
whether the offence can be said to be of such an exceptional nature
and the offender is of such a menace to the society that he deserves
the extreme punishment of death. No doubt, the injuries on the
deceased indicate that the assault on her was brutal after lifting
her from the road while she was playing. Mr. Mund, the learned
counsel for the accused-appellant, brings to our notice two decisions
of the Supreme Court, reported in AIR 1980 SC 898 : (1980 Cri
LJ 636) (Bachan Singh v. State of Punjab) as well as AIR 1989
SC 1456 : (1989 Cri LJ 1466) (Allauddin Mian, Sharif Mian v. State
of Bihar). In those decisions their Lordships of the Supreme Court
has indicated as to where the extreme penalty of death should
be given. In Bachan Singh's case (AIR 1980 SC 898), where the
constitutionality of the provision of award of death penalty had
been challenged, their Lordships of the Supreme Court observed
(at page 681 of Cri LJ) :-
"In a sense, to kill is to be cruel and therefore all murders
are cruel. But such cruelty may vary in its degree of culpability.
And it is only when the culpability assumes the proportion of
extreme depracity that 'special reasons' can legitimately be said
to exist".
With reference to the facts and figures furnished by the Union
of India in that case, it was also indicated that -
"...... Facts and figures albeit incomplete, furnished by
the Union of India, show that in the past Courts have inflicted
the extreme penalty with extreme infrequency - a fact which attests
to the caution and compassion which they have always brought to
bear on the exercise of their sentencing discretion in so grave
a matter ......"
In Allauddin Mian's case (AIR 1989 SC 1456), their Lordships of
the Supreme Court observed (at pages 1464 & 1465) :-
"....... Section 302, IPC casts a heavy duty on the Court
to choose between death and imprisonment for life. When the Court
is called upon to choose between the convict's cry 'I want to
live' and the prosecutor's demand 'he deserves to die' it goes
without saying that the Court must show a high degree of concern
and sensitiveness in the choice of sentence. In our justice delivery
system several difficult decisions are left to the presiding officer,
sometimes without providing the scales or the weights for the
same. In cases of murder, however, since the choice is between
capital punishment and life imprisonment the legislature has provided
a guideline in the form of sub-section (3) of S. 354 of the Criminal
P.C., 1973 ...... This provision makes it obligatory in cases
of conviction for an offence punishable with death or with imprisonment
for life or for a term of years to assign reasons in support of
the sentence awarded to the convict and further ordains that in
case the Judge awards the death penalty, 'special reasons' for
such sentence shall be stated in the judgment ......"
It was further observed :-
"...... 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 the 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 convict with the extreme
punishment provided there exist special reasons for so doing ......."
Applying the tests laid down in the aforesaid two cases to the
facts and circumstances of the present case, we find that the
motive for the crime was quite obscure and the killing was not
for any gain. Even though the assault has been brutal, yet it
cannot be said that it is one of those "rarest of the rare"
cases where the extreme penalty of death should be awarded. Taking
into consideration the nature of the crime and the circumstances
of the offender, it is not possible to hold that the offence is
a menace to the society and, therefore, the sentence of life imprisonment
would be altogether inadequate. We would accordingly hold that
this case does not, deserve the extreme punishment of death and,
on the other hand, we would sentence the accused-appellant with
the alternative punishment of imprisonment for life. Consequently,
while upholding the conviction under section 302, Indian Penal
Code, we direct that the accused-appellant be sentenced to imprisonment
for life. The reference made by the learned Additional Sessions
Judge under S. 366 of the Code of Criminal Procedure is accordingly
discharged.
11. So far as the conviction of the appellant under S. 324, Indian
Penal Code, is concerned, as well as the sentence passed thereunder,
the same remains unassailable and cannot be interfered with.
The Death reference as well as the Jail Criminal Appeal are accordingly
disposed of.
D. M. PATNAIK, J. :- 12. I agree.
Order accordingly.
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