Vs. State of Bihar  INSC 511 (3 November 1998)
Nanavati, S P Kurdukar Nanavati. J.
appellant was cinvicted by the trial court for the offence punishable under
Section 302 IPC and sentenced to death. The High Court confirmed the conviction
and also the death sentence. Co-accused - Doran Dass was convicted under
Section 302 read with Section 120B IPC and sentenced to suffer imprisonment ofr
life. His conviction and sentence were also confirmed by the High Court. Both the
accused then filed special Leave Petitions in this court for obtaining leave to
appeal against the judgment and order passed by the High Court. The Special
leave petition filed by Doran Dass was dismissed. Leave was granted to the
appellant on the question of sentence only. Therefore, only point that we are
required to consider in this appeal is whether the sentence of deadt imposed
upon the appellant is proper.
awarding the death sentence, the trial court gave the following reasons :
the appellant committed murder of kusum Devi at the instance of Doran Dass and
on payment of Rs.10,000/-,
the appellant is a professional killer and
the appellant is such a dare devil that he committed murder of Kusum Devi in
broad day light on a public street.
of the view that such a professional killer does not deserve to remain in the
question of sentence, the High Court has observed as under :
the materials brought on record, I have already indicated the cruel manner in
which this appellant had committed murder of a young and helpless lady in a
broad day light at a public place. It has also been proved that this appellant
had a previous history of committing murder.
having regard to the guidelines enumerated by the Apex Court in the case A.I.R.
1983 S.C. 957, there appears no difficulty in concluding that this case falls
in the category of one of the 'rarest of rare cases' where death penalty can be
fully justified." Thus, the main reason which induced the trial court and
the High Court to impose the extreme penalty of death was that the appellant is
a professional killer with a previous history of committing murders.
only evidence on that point consists of the depositions of Pw 5 - Arjun Das and
PW 19 - Sukumari Devi and the confessional statement of the appellant - Ex.5,
recorded by Rakesh Kumar Brahamchari - PW 21. Arjun Das has deposed that when
he had tried to find out who had committed murder of Kusum Devi, he had come to
know that it was committed by Doran Das through a professional killer on
payment of money. He did not say through whom he came to know it. He had no
personal knowledge that Bullu Das, the appellant, is a professional killer. PW
19 - Sukumari Devi was declared hostile as she did not support the prosecution.
was cross-examined by the learned Public Prosecutor and during that
cross-examination ti was brought out that she had stated before the police that
people of the locality know that Bullu Das commits murder on payment of money.
was brought on record by way of a contradiction. Thus, the statement made by
her that Bullu Das commits murder by taking money was not substantive evidence.
confessional statement, Ex-5, stated to have been made by the appellant was
before the Police Officer Incharge of the Godda Town Police Station where the
offence was registered in respect of the murder of Kusum Devi. The FIR was
registered at the Police Station on 8.8.95 at about 12.30 p.m. On 9.8.95, after the appellant was arrested and brought before
Rakesh Kumar that he recorded the confessional statement of the appellant.
Surprisingly, on objection was taken by the defence for admitting it in
evidence. The trial court also did not consider whether such a confessional
statement is admissible in evidence or not.
High Court has also not considered this aspect. The confessional statement was
clearly inadmissible as it was made by an accused before a Police Officer after
the investigation had started.
there was no evidence on record on the basis of which it would have been held
that the appellant is a professional killer having a previous history of
killing others on payment of money. If this circumstance is discarded from
consideration, then the rest of the circumstances do not make it a rarest of
therefore, allow this appeal and modify the order of sentence passed by the
High Court by substituting the sentence of imprisonment for life for the
sentence of death imposed by the trial court and confirmed by the High Court.