State of U.P. Vs. Dharmendra Singh
& ANR [1999] INSC 356 (21 September 1999)
N. Santosh Syed Shah Mohammed quadri
SANTOSH HEGDE, J.
Leave granted in the above S.L.Ps. Heard
learned counsel for the parties. These appeals are preferred against the
judgment and order dated 19.8.1997 passed in Crl.A.Nos.2090/95 and 2011/95 by
the High Court of Allahabad wherein the High Court while confirming the
conviction of the respondents herein and 4 others in connected appeals,
rejected the reference made by the learned Sessions Judge for confirmation of
death sentence of the respondents and commuted the said sentence to life
imprisonment for offences punishable under Section 302 IPC. There is an
accompanying SLP filed by the complainant in the case from which these appeals
emanate. We consider it proper to deal with it separately. The two respondents
in these appeals along with 4 other persons were charged with offences
punishable under Sections 147/148/149/302 IPC for having committed the murders
of Pitamber Singh aged about 75 years, Ramwati Devi aged about 32 years, (Ravi)
Ravindra and Narendra both aged 12 years and Reeta aged about 15 years. The
prosecution case, narrated in brief, necessary for the disposal of these
appeals is as under : The complainant - Chander Mohan had purchased a part of
the family house and some land belonging to the family of Dharmendra,
respondent herein, from latter's grand-father and started living with his
family in that part of the residential building purchased by him.
Dharmendra resented this purchase as he
himself was intending to purchase the same. Narendra, the other respondent in
these appeals who is stated to be a student of LL.B., was harbouring evil
designs on Kumari Reeta and in furtherance thereof he was constantly teasing
her when she used to be on her way to school. It is stated by the prosecution
that in order to fulfil his lust, about 4-5 days prior to the occurrence, he
had tried to molest her and also threatened her with dire consequences should
she dare to complain against him. It is stated that inspite of the threat Reeta
did complain to her Uncle, the complainant, about the misdemeanour of Narendra
sequel to which the complainant and his nephew gave a thrashing to the said
accused Narendra. It is in this background of hatred entertained by Dharmendra
and Narendra for their own causes that they enlisted the support of the other
accused who happened to be their close friends to wreak vengeance on the family
of the complainant, consequent to which the 6 accused together at about 3 a.m.
in the night intervening 26th and 27th May, 1994 caused the death of all the 5
persons in their sleep by inflicting multiple stab injuries. It is stated by
the prosecution that Pws.1 to 3 had witnessed and identified these 6 accused
persons leaving the place of occurrence with blood stained weapons. The learned
Sessions Judge on considering the material placed by the prosecution before
him, came to the conclusion that the prosecution had proved the charges against
the accused persons and held them guilty of the said charges, and while
convicting the said persons awarded life sentence in regard to the 4 accused
persons who are not before us now. In regard to the two accused respondents who
are before us now, the learned Judge from the facts and circumstances of the
case came to the conclusion that they had committed a crime which could be
termed as `rarest of the rare cases'. Hence, after assigning reasons, proceeded
to award the extreme penalty of d eath. The matter was taken to the High Court
at Allahabad both by way of appeal by the accused persons and also by way of
`reference' for confirmation of the death sentence. The High Court vide its
judgment dated 19.8.1997 upheld the conviction of all the accused persons and
while confirming the sentence awarded on the other accused persons, who are not
respondents herein, came to the conclusion that the sentence of death was not
called for in view of the fact that the two respondents - Dharmendra and
Narendra - were languishing in death cell since 3.6.1994 and 28.5.1994
respectively which is for a period of more than 3 years and consequently,
reduced t he sentence to that of imprisonment for life. Against the judgment of
the High Court confirming the conviction and awarding of sentence, the accused
had preferred SLP (Crl) Nos.73-75/98 before this Court which came to be
dismissed on 23.1.1998. Against the order of the High Court refusing to confirm
the sentence of death awarded to the respondents herein, the State has
preferred the above appeals and the complainant has also preferred a companion
petition which we have already stated that we will deal with separately. At the
outset, the learned counsel appearing for the respondents herein contended that
if the Court is inclined to go into the merits of the State appeal then we
should consider the effect of Section 377(3) of the Code of Criminal Procedure
(for short `the Code') read with Section 386c(iii) thereof. It is his
contention that in the event of the appellate court entertaining an appeal of
the State against sentence then it is open to the accused not only to show
cause against the enhancement of such sentence but also to plead for his
complete acquittal or for reduction of the sentence. It was also pointed out to
us that in view of the provisions of Section 386 of the Code, it is open to us
as an appellate court in an appeal for enhancement of sentence to alter the
sentence also. He placed strong reliance on a decision of this Court in U.J.S.
Chopra v. State of Bombay (AIR 1955 SC 633). Section 377(3) of the Code reads
thus :- "377. Appeal by the State Government against sentence.-(1) x x x
(2)x x x (3)When an appeal has been filed against the sentence on the ground of
its inadequacy, the High Court shall not enhance the sentence except after giving
to the accused a reasonable opportunity of showing cause against such
enhancement and while showing cause, the accused may plead for his acquittal or
for the reduction of the sentence." A perusal of this Section shows that
this provision is applicable only when the matter is before the High Court and
the same is not applicable to this Court when an appeal for enhancement of
sentence is made under Article 136 of the Constitution. It is to be noted that
an appeal to this Court in criminal matters is not provided under the Code
except in cases covered by Section 379 of the Code. An appeal to this Court
under Article 136 of the Constitution is not the same as a statutory appeal
under the Code. This Court under Article 136 of the Constitution is not a
regular court of appeal which an accused can approach as of right.
It is an extraordinary jurisdiction which is
exercisable only in exceptional cases when this Court is satisfied that it
should interfere to prevent a grave or serious miscarriage of justice, as
distinguished from mere error in appreciation of evidence. While exercising
this jurisdiction, this Court is not bound by the rules of procedure as
applicable to the courts below. This Court's jurisdiction under Article 136 of
the Constitution is limited only by its own discretion (See Nihal Singh &
Ors.v. The State of Punjab {AIR 1965 SC 26}). In that view of the matter, we
are of the opinion that Section 373(3) of the Code in terms does not apply to
an appeal under Article 136 of the Constitution. We are supported in this view
of ours by a judgment of this Court in Chandrakant Patil etc. v.State through
CBI etc. (1998 3 SCC 38) wherein this Court while considering a similar
argument held : "The right envisaged in Section 377(3) of the present Code
shall be confined to appeals presented by the Government to the High Court
against sentence on the ground of its inadequacy." On the contrary, the
judgment relied upon by learned counsel for the respondents in Chopra's case
(supra) will not assist him because in that case this Court was dealing with
the right of an accused to plead for acquittal in a statutory appeal filed by
the State for enhancement of sentence before the High Court which is available
under the Section itself.
This does not mean that this Court will be unmindful
of the principles analogous to those found in the Code including those under
Section 373(3) of the Code while moulding a procedure for the disposal of an
appeal under Article 136 of the Constitution. Apart from the Supreme Court
Rules applicable for the disposal of the criminal appeals in this Court, the
Court also adopts such analogous principles found in the Code so as to make the
procedure a "fair procedure" depending on the facts and circumstances
of the case. In the instant case both the Trial Court and the High Court have
considered the entire material on record and have concurrently found the
respondents guilty of the offence they are charged. As against the said
conviction and sentence, the respondents had preferred a substantive special leave
petition under Article 136 of the Constitution before this Court which was
dismissed on merits, and the respondents have not chosen to prefer any review
petition against the said dismissal order. In this background we do not
consider it appropriate to accede to this request of the respondents because
neither the facts and circumstances of the case nor public interest requires us
to do so. In the light of the fact that the appeal is one for seeking the
extreme penalty of death, we have also permitted the learned counsel
representing the appellant in the companion matter to address us on the merits
of the State appeal even though that petition is not taken up for hearing with
these appeals. On behalf of the State as well as the complainant, it was argued
that the learned Sessions Judge had while awarding death sentence to the
respondents herein, given cogent and acceptable reasons as required under
Section 354(3) of the Code and the High Court while agreeing with the said
finding of the trial court seriously erred both in law and in fact in coming to
the conclusion that the respondents herein were languishing in death cell since
3.6.1994 and 28.5.1994 respectively i.e. for more than 3 years, hence, it is
not proper to award death sentence. It was contended that this reasoning of the
High Court is not sustainable either in law or on facts. It is contended that
factually the High Court was in error in saying that the said persons were in
death cell since 3.6.1994 and 28.5.1994 respectively. It was pointed out to us
that 28.5.1994 and 3.6.1994 are the dates on which the respondents were taken
into custody as under-trial prisoners and they were not in death cell. The
learned Sessions Judge awarded death sentence to these accused persons only on
5.12.1995 which came to be altered by the judgment of the High Court on
19.8.1997. It is argued that even this period cannot be labelled as being in
the death cell since the death sentence was yet to be confirmed by the High
Court. At any rate, according to the State, the time-lag between awarding of
death sentence i.e. 5.12.1995 by the trial court and the judgment of the High
Court i.e. 19.8.1997 being 21 months (not even two years), the High Court seems
to have misdirected itself in refusing to confirm the sentence of death. It was
also argued that on facts the crime committed by these respondents along with
other accused persons is such a dastardly and heinous crime which cannot but be
called `rarest of the rare' case in which these 2 respondents being the
principal perpetrators of the crime, were rightly awarded capital punishment by
the Sessions Court. It is further argued that the High Court has agreed with
this finding but refused to confirm the sentence on an erroneous ground which
is unsustainable in law, therefore, it is a fit case in which the judgment of
the High Court be reversed and the sentence be enhanced. Learned counsel for
the respondents, per contra, has strenuously argued that this is not a fit case
even for conviction; much less a case for extreme penalty of death. It was
contended that both the courts below have based the conviction on conjectures
and surmises against all probabilities. At any rate, the prosecution has failed
to establish who amongst the 6 accused persons has actually dealt the blows
i.e.individual overt acts that have not been established.
Therefore, even if the conviction is to be
upheld, the capital punishment should not be granted. In support of this
contentions, respondents' counsel relied upon a judgment of this Court in Ronny
@ Ronald James Alwaris & Ors. V. State of Maharashtra (1988 3 SCC 625). It
was also argued that even otherwise the facts of the case do not warrant
imposition of death sentence and these two respondents having reconciled
themselves to the judgment of the High Court, have an expectation of survival
and which expectation of theirs should not be destroyed. We have carefully
perused the evidence adduced in this case, to the limited extent of examining
whether the case in hand is a case which could be termed as rarest of the rare
cases so as to invoke the extreme penalty of death. The learned Sessions Judge
while assigning special reasons for awarding the capital punishment came to the
conclusion that the crime in question was a dastardly crime involving the death
of 5 innocent human beings for the purpose of achieving the sadistic goals of
Dharmendra and Narendra, respondents herein, to avenge their respective grouse
against the complainant and his niece Reeta by eliminating 5 members of the
family. Learned Sessions Judge distinguished the case of the 4 other accused
with that of these respondents based on the motive and on the ground that these
respondents were the principal perpetrators of the crime. It is seen that the
High Court has concurred with this reasoning of the Sessions Judge. However,
the High Court on the ground that the accused have languished in the death cell
for 3 years, altered the sentence to life imprisonment. At this stage, it is
necessary to extract the reasoning of the High Court on this score : "x x
x the appellants Dharmendra and Narendra are languishing in death cell since
3.6.1994 and 28.5.1994, respectively, i.e. more than three years.
Consequently now it may not be proper to
confirm the sentence of death passed on them by the trial court." The High
Court has erred in coming to this conclusion both factually as well as
inferentially. First of all these respondents were not in death cell for 3
years nor is there a law which says that a person in death cell for 3 years
ipso facto is entitled for commutation of death sentence.
While it is true that prolonged trial or
execution of the death sentence beyond all reasonable period may be a ground
for commuting the death sentence in a given case, it will be highly erroneous
to lay down as a principle in law or draw an inference on fact that awarding of
death sentence is improper in cases where accused persons are in custody for 3
years or more, even though the facts of the case otherwise call for a death
sentence. If the view taken by the High Court in this case is to be accepted as
a correct principle then practically in no murder case death sentence can be
awarded, since in this country normally a murder trial and confirmation of
death sentence takes more than 3 years.
This Court speaking through a Constitution
Bench in Smt.Triveni Ben etc. vs. State of Gujarat etc. (1988 4 SCC 574) has
held : "No fixed period of delay could be held to make the sentence of
death inexecutable . . ." It is useful to notice herein that in Triveni
Ben's case, this Court was considering the delay in execution of the sentence
and not even imposition of sentence, a stage much earlier to execution.
Therefore, we have no doubt in coming to the conclusion that the High Court has
erred in the reasoning given by it in refusing to confirm the sentence of death
awarded by the trial court. Before examining the case of the State for
enhancement of the sentence on merits, we will have to bear in mind that this
Court would not ordinarily interfere in the sentence unless there is any illegality
or it involves any question of principle. We are also aware of the legal
principle that the question of sentence is a matter of discretion and that it
is well-settled that when discretion has been properly exercised along accepted
judicial lines, an appellate court should not interfere to the detriment of an
accused except for very strong and cogent reasons. We have noticed earlier that
the basis of the High Court's judgment to the extent that it has refused to
confirm the death sentence awarded by the trial court is factually incorrect
and opposed to accepted legal principles. Consequently, it has failed to
exercise its discretion along accepted judicial lines. We will now consider
whether there are strong reasons for accepting the decision of the trial court
to impose death sentence and are these reasons strong enough to reverse the
decision of the High Court. We have already noticed that the trial court has
given cogent reasons for awarding the extreme penalty of death in regard to
these respondents. We have also noticed that the High Court has, as a matter of
fact, concurred with the conclusions arrived at by the trial court in this
regard. In this context, it is useful to extract the observations of the High
Court which are as under : "x x x As the whole episode was planned and
prepared by Dharmendra and Narendra; hence they deserve extreme penalty for the
commission of five murders two boys of 12 years, Km. Reeta, Ramwati, wife of
complainant, and Pitamber an old person of 70 years. They have committed
murders in a very cruel and brutal manner inflicting as many as 53 injuries on
five persons. The court below has not committed any error in awarding the
extreme penalty of death to Narendra and Dharmendra, who were instrumental
behind the whole episode of awful tragedy." A perusal of this conclusion
of the High Court gives the impression that but for the erroneous impression it
carried, it would have confirmed the sentence of death awarded to these 2
respondents. It was argued on behalf of the respondents that the findings of
the courts below even in regard to the commission of the offence, are contrary
to facts. Hence, at least, in regard to the awarding of sentence, we should not
interfere in these appeals. So far as the commission of the offence is concerned,
the Special Leave Petition filed by the respondents was dismissed by this Court
and the findings of the courts below have become final. As stated above, we
have examined ourselves the evidence in this case for the limited purpose of
ascertaining whether this case could be treated as one of the rarest of rare
cases, calling for the extreme penalty of death; more so in the background of
the argument on behalf of the respondents that the prosecution has not been able
to establish the individual overt acts of the accused persons.
The prosecution in this case, as accepted by
the two courts below, has established the fact that Dharmendra nursed a grudge
against the complainant for having purchased the family property including the
residential part against his desire to own the same. The prosecution has also
established that Narendra, though an educated person who at the time of the
incident, was pursuing his LL.B. course had been entertaining a lust towards
Reeta and in furtherance of this desire had been teasing her and also a few
days prior to the incident, had tried to molest her consequent to which, upon a
complaint made by Reeta, the complainant and his nephew had assaulted Narendra.
This case of the prosecution shows that these two persons in furtherance of
their diabolic motive conspired to teach a lesson to the complainant by killing
such of those members of the family who were vulnerable and helpless. This is
clear from the timing of the attack which was when other able members of the
family were away from the house and only the aged and the weak remained alone
in the house. Also the fact that they solicited the help of four of their
friends (other accused) shows that the intention was to kill as many members of
the complainant family as possible, irrespective of the fact whether the
victims were the cause of their vengeance or not. The ghastly manner of attack
on the deceased, which is evident from the post mortem report, shows that the
act in question was premeditated, senseless, dastardly and beyond all human
reasoning inasmuch as 53 wounds were inflicted on the 5 deceased persons; each
one suffering at least 10 wounds on an average. The attacks were aimed at such
parts of the body in succession where even a single stab would have, in the
ordinary course, sufficed to cause death. The denuding of the lower part of the
body of Reeta showed an element of perversity which could be attributed to the
mind of frustrated men who totally lacked human sensitivity. A holistic
examination of the material on record shows that the barbaric offence in
question could only be termed as a `rarest of the rare' case. Learned counsel
for the respondents, however, relied upon the judgment of this Court in Ronny's
case (supra) in support of his contention that even if the act of murder is to
be assumed to be brutal since the prosecution has failed to establish the overt
acts of the individual accused, the sentence of death should not be awarded. We
have carefully perused the said judgment. We do not find that this Court has enunciated
any such proposition in absolute terms. It is possible in a given set of facts
that the court might think even in a case where death sentence can be awarded,
the same need not be awarded because of the peculiar facts of that case like
the possibility of one or more of the accused being responsible for offences
less culpable than the other accused. In such circumstances, in the absence of there
being no material available, to bifurcate the case of each accused person, the
court might think it prudent not to award the extreme penalty of death. But
then such a decision would rest on the availability of evidence in a particular
case. We do not think that a straight-jacket formula for awarding death
sentence can be evolved which is applicable to all cases. The facts of each
case will have their own implication on the question of awarding sentence.
In the Ronny's case (supra), this Court on
facts found extenuating factors to curb the sentence which is clear from the
following extract from the said judgment :- "From the facts and
circumstances, it is not possible to predict as to who among the three played
which part. It may be that the role of one has been more culpable in degree
than that of the others and vice versa. Where in a case like this it is not possible
to say as to whose case falls within the "rarest of the rare" cases,
it would serve the ends of justice if the capital punishment is commuted into
life imprisonment." Whereas in the appeals before us the trial court as
well as the High Court have distinguished the case of these two respondents
vis-a-vis the other accused persons for cogent reasons. We have also agreed
with this view of the courts below. Therefore, the predicament that was
existing in Ronny's case (supra), apart from the extenuating factors, does not
exist in this case. In Ronny's case itself, this Court while discussing the
role of the Court in imposing the extreme penalty in Para 40 of the said case,
has observed thus : "The obligation of the court in making the choice of
death sentence for the person who is found guilty of murder is onerous indeed.
But by sentencing a person to death, the court is giving effect to the command
of law which is in public interest whereas in committing the murder or being
privy to commit murder, even if it be a vengeance for another murder, the
convict is violating the law which is against public interest." These
observations of this Court show that there is an obligation on the courts in
appropriate cases to award the sentence of death. The last argument advanced on
behalf of the respondents is based on the expectation of survival entertained
by the respondents after the judgments of the High Court. It is contended that
after the High Court refused to confirm the death sentence, the respondents
have entertained a just expectation of survival and, therefore, we should not
interfere with the said judgment. We do not find any legal basis for this
argument. In a judicial system like ours where there is hierarchy of courts,
possibility of reversal of judgments is inevitable, therefore, expectations of
an accused cannot be a mitigating factor to interfere in an appeal for
enhancement of sentence if the same is otherwise called for in law. Taking into
consideration the brutality of attack, number of persons murdered, age and
infirmity of the victims, their vulnerability and the diabolic motive, acts of
perversion on the person of Reeta, cumulatively we find the sentence awarded by
the trial court was just and proper.
We have examined this case carefully and
having given our anxious thought to the facts, we have found no mitigating
circumstances in favour of the respondents herein. We are, therefore,
constrained to reverse the judgment of the High Court by allowing these
appeals, setting aside the judgment and orders of the High Court to the extent
impugned in these appeals, and confirm the sentence of death awarded by the
trial court.
SLP (Crl) ___/99) (Crl.MP Nos.:2445-46/98) In
view of the judgment delivered by us in Crl.A. Nos.____/99 (@ SLP (Crl)
Nos.1712-13/98), no orders are called for in this case and the same is disposed
of accordingly.
Back
