Murmu Vs. State of Jharkhand  Insc 632 (12 December 2003)
Raju & Arijit Pasayat. Arijit Pasayat,J
little drops of humanness which conjointly make humanity a cherished desire of
mankind had seemingly dried up, when a young child of 9 years was sacrificed
before Goddess Kali by the appellant for his own prosperity is what the
drops of Water, little grains of sand,' Make the mighty ocean And the pleasant
land, Little deeds of kindness, little Words of love, Help to make earth happy
Like the heaven above." Said Julia A.f. Cabney in "Little
still, sad music of humanity had become silent when it was forsaken by the
accused-appellant is what has been found by the Courts below.
December, 1996 turned
out to be a heart-breaking day for Somlal Besra (PW-2). In the evening of that
day he found his son Chirku Besra (hereinafter referred to as 'the deceased')
missing from house. He searched for him making inquiries from various persons.
Information surfaced that he was sacrificed before Goddess Kali by the
other persons, his wife and mother were also said to be parties to the gruesome
killing. The prosecution case centered round extra judicial confession made by
accused before large number of persons, recovery of dead body at the behest of
the accused-appellant and evidence of a witness who saw the accused carrying a
bag on a bicycle which was thrown to a pond and after throwing the bag to the
pond the accused returning by bicycle. The severed head was recovered from the
bag thrown to the pond. Information was given to police, investigation was
the three accused persons were tried for offences punishable under Sections 302
and 201 of the Indian Penal Code, 1860 (for short 'the IPC'). The appellant was
found guilty for both the accusations and was sentenced to death for the former
and 7 years rigorous imprisonment for the latter. Benefit of doubt was,
however, given to the co-accused and they were acquitted. Reference was made by
the trial Judge i.e. the First Additional Sessions Judge, Jamtara for
confirmation of death sentence under Section 366 of the Code of Criminal
Procedure, 1973 (in short 'the Code') by the Jharkhand High Court which by the
impugned judgment upheld both the convictions and sentence. It was held that
the murder was gruesome and death sentence was most appropriate sentence.
the said judgment the present appeal has been filed. While granting leave, by
order dated 4.8.2003 scope of appeal was limited to the question of sentence.
Anil Kumar Mittal, learned amicus curiae submitted that even according to
prosecution killing was not done with any motive. Though superstition is not
expected and encouraged in modern society, yet an illiterate and tribal born
and brought up in an atmosphere surcharged with superstition should not be
awarded death sentence. The modern trend, according to him, is reformation and
when in the case at hand balance sheet of aggravating and mitigating
circumstances is drawn up, the mitigating circumstances far outweigh the
aggravating situation and, therefore, the death sentence should be altered to
response, learned counsel for the respondent-State submitted that a 9 years old
child was sacrificed in the most brutal and diabolic manner. This is a case
which falls within the "rarest of rare" category and, therefore,
death sentence has been rightly awarded. It was pointed out that it is not the
first instance when the accused is charged with commission of such offences. In
fact, as records reveal, the appellant along with two of his relatives was
facing trial at the relevant time for committing murder by sacrificing of his
own brother before Goddess Kali.
302 IPC prescribes death or life imprisonment as the penalty for murder. While
doing so, the Code instructs the court as to its application. The changes which
the Code has undergone in the last three decades clearly indicate that
Parliament is taking note of contemporary criminological thought and movement.
It is not difficult to discern that in the Code, there is a definite swing
towards life imprisonment. Death sentence is ordinarily ruled out and can only
be imposed for "special reasons", as provided in Section 354(3).
There is another provision in the Code which also uses the significant
expression "special reason". It is Section 361. Section 360 of the
Code re- enacts, in substance, Section 562 of the Criminal Procedure Code, 1898
(in short "the old Code"). Section 361 which is a new provision in
the Code makes it mandatory for the court to record "special reasons"
for not applying the provisions of Section 360. Section 361 thus casts a duty
upon the court to apply the provisions of Section 360 wherever it is possible
to do so and to state "special reasons" if it does not do so. In the
context of Section 360, the "special reasons" contemplated by Section
361 must be such as to compel the court to hold that it is impossible to reform
and rehabilitate the offender after examining the matter with due regard to the
age, character and antecedents of the offender and the circumstances in which
the offence was committed. This is some indication by the legislature that
reformation and rehabilitation of offenders and not mere deterrence, are now
among the foremost objects of the administration of criminal justice in our
country. Section 361 and Section 354(3) have both entered the statute book at
the same time and they are part of the emerging picture of acceptance by the
legislature of the new trends in criminology. It would not, therefore, be wrong
to assume that the personality of the offender as revealed by his age,
character, antecedents and other circumstances and the tractability of the
offender to reform must necessarily play the most prominent role in determining
the sentence to be awarded. Special reasons must have some relation to these
factors, Criminal justice deals with complex human problems and diverse human
beings. A Judge has to balance the personality of the offender with the
circumstances, situations and the reactions and choose the appropriate sentence
to be imposed.
should be borne in mind that before the amendment of Section 367(5) of the old
Code, by the Criminal Procedure Code (Amendment) Act, 1955 (26 of 1955) which
came into force on 1.1.1956, on a conviction for an offence punishable with
death, if the court sentenced the accused to any punishment other than death,
the reason why sentence of death was not passed had to be stated in the
judgment. After the amendment of Section 367(5) of the old Code by Act 26 of
1955, position is clear that the normal penalty is imprisonment for life. It
can be awarded in the presence of extenuating circumstances which reduce the
gravity of the offence. The matter is left, after the amendment, to the discretion
of the court. The court must, however, take into account all the circumstances,
and state its reasons for whichever of the two sentences it imposes in its
discretion. Therefore, the former rule that the normal punishment for murder is
death is no longer operative and it is now within the discretion of the court
to pass either of the two sentences prescribed in this section; but whichever
of the two sentences he passes, the Judge must give his reasons for imposing a
particular sentence. The amendment of Section 367(5) of the old Code does not
affect the law regulating punishment under IPC. This amendment relates to
procedure and now courts are no longer required to elaborate the reasons for
not awarding the death penalty; but they cannot depart from sound judicial
considerations preferring the lesser punishment.
354(3) of the Code marks a significant shift in the legislative policy
underlying the old Code as in force immediately before 1.4.1974, according to
which both the alternative sentences of death or imprisonment for life provided
for murder were normal sentences. Now, under Section 354(3) of the Code the
normal punishment for murder is imprisonment for life and death penalty is an
court is required to state the reasons for the sentence awarded and in the case
of death sentence "special reasons" are required to be stated, that
is to say, only special facts and circumstances will warrant the passing of the
death sentence. It is in the light of these successive legislative changes in
the Code that the judicial decisions prior to the amendment made by Act 26 of
1955 and again Act 2 of 1974 have to be understood.
Court in Ediga Anamma v. State of A.P.
(1974 (4) SCC 443) has observed : (SCC pp. 453-54, para 26) "26. Let us
crystallize the positive indicators against death sentence under Indian law
currently. Where the murderer is too young or too old, the clemency or penal
justice helps him. Where the offender suffers from socio-economic, psychic or
penal compulsions insufficient to attract a legal exception or to downgrade the
crime into a lesser one, judicial commutation is permissible. Other general
social pressures, warranting judicial notice, with an extenuating impact may,
in special cases, induce the lesser penalty. Extraordinary features in the
judicial process, such as that the death sentence has hung over the head of the
culprit excruciatingly long, may persuade the court to be compassionate.
if others involved in the crime and similarly situated have received the
benefit of life imprisonment or if the offence is only constructive, being
under Section 302, read with Section 149, or again the accused has acted
suddenly under another's instigation, without premeditation, perhaps the court
may humanely opt for life, even like where a just cause or real suspicion of
wifely infidelity pushed the criminal into the crime. On the other hand, the
weapons used and the manner of their use, the horrendous features of the crime
and hapless, helpless state of the victim, and the like, steel the heart of the
law for a sterner sentence. We cannot obviously feed into a judicial computer
all such situations since they are astrological imponderables in an imperfect
and undulating society. A legal policy on life or death cannot be left for ad
hoc mood or individual predilection and so we have sought to objectify to the
extent possible, abandoning retributive ruthlessness, amending the deterrent
creed and accenting the trend against the extreme and irrevocable penalty of
putting out of life."
Singh v. State of Punjab (1980 (2) SCC 684) it has been
observed that: (SCC p. 751, para 209) "A real and abiding concern for the
dignity of human life postulates resistance to taking a life through law's
instrumentality. That ought not to be done save in the rarest of rare cases
when the alternative option is unquestionably foreclosed." A balance sheet
of aggravating and mitigating circumstances has to be drawn up and in doing so
the mitigating circumstances have to be accorded full weightage and a just
balance has to be struck between the aggravating and the mitigating
circumstances before the option is exercised. In order to apply these
guidelines, inter alia, the following questions may be asked and answered, (a)
is there something uncommon about the crime which renders sentence of
imprisonment for life inadequate and calls for a death sentence?; and (b) are
the circumstances of the crime such that there is no alternative but to impose
death sentence even after according maximum weightage to the mitigating
circumstances which speak in favour of the offender? Another decision which
illuminatingly deals with the question of death sentence is Machhi Singh v.
State of Punjab (1983 (3) SCC 470).
Singh (supra) and Bachan Singh (supra) cases the guidelines which are to be
kept in view when considering the question whether the case belongs to the
rarest of the rare category were indicated.
Singh case (supra) it was observed: (SCC p. 489, para 39) The following
questions may be asked and answered as a test to determine the "rarest of
the rare" case in which death sentence can be inflicted:-
there something uncommon about the crime which renders sentence of imprisonment
for life inadequate and calls for a death sentence?
Are the circumstances of the crime such that there is no alternative but to
impose death sentence even after according maximum weightage to the mitigating
circumstances which speak in favour of the offender?
following guidelines which emerge from Bachan Singh case (supra) will have to
be applied to the facts of each individual case where the question of
imposition of death sentence arises: (SCC p. 489, para 38):-
The extreme penalty of death need not be inflicted except in gravest cases of
Before opting for the death penalty the circumstances of the `offender' also
require to be taken into consideration along with the circumstances of the
Life imprisonment is the rule and death sentence is an exception. Death
sentence must be imposed only when life imprisonment appears to be an
altogether inadequate punishment having regard to the relevant circumstances of
the crime, and provided, and only provided, the option to impose sentence of
imprisonment for life cannot be conscientiously exercised having regard to the
nature and circumstances of the crime and all the relevant circumstances.
balance sheet of aggravating and mitigating circumstances has to be drawn up
and in doing so the mitigating circumstances have to be accorded full weightage
and a just balance has to be struck between the aggravating and the mitigating
circumstances before the option is exercised.
rarest of rare cases when collective conscience of the community is so shocked
that it will expect the holders of the judicial power centre to inflict death
penalty irrespective of their personal opinion as regards desirability or
otherwise of retaining death penalty, death sentence can be awarded. The
community may entertain such sentiment in the following circumstances:
When the murder is committed in an extremely brutal, grotesque, diabolical,
revolting or dastardly manner so as to arouse intense and extreme indignation
of the community.
When the murder is committed for a motive which evinces total depravity and
meanness; e.g. murder by hired assassin for money or reward or a cold-blooded
murder for gains of a person vis-`-vis whom the murderer is in a dominating
position or in a position of trust, or murder is committed in the course for
betrayal of the motherland.
When murder of a member of a Scheduled Caste or minority community etc., is
committed not for personal reasons but in circumstances which arouse social
wrath, or in cases of 'bride burning' or `dowry deaths' or when murder is
committed in order to remarry for the sake of extracting dowry once again or to
marry another woman on account of infatuation.
When the crime is enormous in proportion. For instance when multiple murders,
say of all or almost all the members of a family or a large number of persons
of a particular caste, community, or locality, are committed.
When the victim of murder is an innocent child, or a helpless woman or old or
infirm person or a person vis-`-vis whom the murderer is in a dominating position
or a public figure generally loved and respected by the community.
upon taking an overall global view of all the circumstances in the light of the
aforesaid propositions and taking into account the answers to the questions
posed by way of the test for the rarest of rare cases, the circumstances of the
case are such that death sentence is warranted, the court would proceed to do
convict hovers between life and death when the question of gravity of the
offence and award of adequate sentence comes up for consideration. Mankind has
shifted from the state of nature towards a civilized society and it is no
longer the physical opinion of the majority that takes away the liberty of a
citizen by convicting him and making him suffer a sentence of imprisonment.
Award of punishment following conviction at a trial in a system wedded to the
rule of law is the outcome of cool deliberation in the court room after
adequate hearing is afforded to the parties, accusations are brought against
the accused, the prosecuted is given an opportunity of meeting the accusations
by establishing his innocence. It is the outcome of cool deliberations and the
screening of the material by the informed man i.e. the Judge that leads to
determination of the lis.
principle of proportion between crime and punishment is a principle of just
desert that serves as the foundation of every criminal sentence that is
justifiable. As a principle of criminal justice it is hardly less familiar or
less important than the principle that only the guilty ought to be punished.
Indeed, the requirement that punishment not be disproportionately great, which
is a corollary of just desert, is dictated by the same principle that does not
allow punishment of the innocent, for any punishment in excess of what is
deserved for the criminal conduct is punishment without guilt.
criminal law adheres in general to the principle of proportionality in
prescribing liability according to the culpability of each kind of criminal
conduct. It ordinarily allows some significant discretion to the Judge in
arriving at a sentence in each case, presumably to permit sentences that
reflect more subtle considerations of culpability that are raised by the
special facts of each case.
in essence affirm that punishment ought always to fit the crime;
practice sentences are determined largely by other considerations. Sometimes it
is the correctional needs of the perpetrator that are offered to justify a
sentence. Sometimes the desirability of keeping him out of circulation, and
sometimes even the traffic results of his crime. Inevitably these
considerations cause a departure from just desert as the basis of punishment
and create cases of apparent injustice that are serious and widespread.
between crime and punishment is a goal respected in principle, and in spite of
errant notions, it remains a strong influence in the determination of
sentences. Anything less than a penalty of greatest severity for any serious
crime is thought to be a measure of toleration that is unwarranted and unwise.
But in fact quite apart from those considerations that make punishment
unjustifiable when it is out of proportion to the crime, uniformly
disproportionate punishment has some very undesirable practical consequences.
look at the fact situation of this case shows that the appellant was not
possessed of the basic humanness and he completely lacks the psyche or mind set
which can be amenable for any reformation.
at the time of occurrence a child of same age as the victim and yet he
diabolically designed in a most dastardly and revolting manner to sacrifice a
very hapless and helpless child of another for personal gain and to promote his
fortunes by pretending to appease the deity. The brutality of the act is amplified
by the grotesque and revolting manner in which the helpless child's head was
severed. Even if the helpless and imploring face and voice of the innocent
child did not arouse any trace of kindness in the heart of the accused, the
non-challant way in which he carried the severed head in a gunny bag and threw
it in the pond unerringly shows that the act was diabolic of most superlative
degree in conception and cruel in execution. The tendency in the accused and
for that matter in any one who entertains such revolting ideas cannot be placed
on par with even an intention to kill some but really borders on a crime
against humanity indicative of greatest depravity shocking the conscience of
not only any right thinking person but of the Courts of law, as well. The
socially abhorrent nature of the crime committed also ought not to be ignored
in this case. If this act is not revolting or dastardly, it is beyond
comprehension as to what other act can be so described is the question.
Superstition is a belief or notion, not based on reason or knowledge, in or of
the ominous significance of a particular thing or circumstance, occurrence or
the like but mainly triggered by thoughts of self aggrandizement and barbaric
at times as in the present case. Superstition cannot and does not provide
justification for any killing, much less a planned and deliberate one. No
amount of superstitious colour can wash away the sin and offence of an
unprovoked killing, more so in the case of an innocent and defenceless child.
propensities of the accused are clearly spelt out from the fact that similar
accusations involving human sacrifice existed at the time of trial. Though the
result could not be brought on record, yet the fact that similar accusation was
made against the accused-appellant for which he was facing trial cannot also be
lost sight of. In view of the above position, we do not think this to be a fit
case where any interference is called for, looking to the background facts
highlighted above. This in our view is an illustrative and most exemplary case
to be treated as the 'rarest of rare cases' in which death sentence is and
should be the rule, with no exception whatsoever. Appeal fails and is
record our appreciation for the fair presentation and assistance rendered by
Mr. Anil Kumar Mittal, learned amicus curiae and Mr. A.T.M. Rangaramanujam, learned
Senior Counsel for the respondent- State who very ably highlighted the legal principles revolving
round the question of death sentence.