DEATH REFERENCE NO, 1 OF 201.WITH CRIMINAL APPEAL (DB) NO. 576 OF 201.In the matter of reference vide Letter No. 5006 dated 8th May, 2012, referred by Sri Sarfaraz Hasan Kazmi, Judicial Commissioner, Ranchi in Sessions Trial No. 380 of 2011. And Against the judgment and order of conviction and sentence, dated 26th April, 2012 and 2nd May, 2012 respectively, passed by Shri Sarfaraz Hasan Kazmi, Judicial Commissioner, Ranchi in Sessions Trial No. 380 of 2011 arising out of Lower Bazar P.S. Case No. 110 of 2011 Death Reference No. 1 of 2012 The State of Jhakhand .......... Appellant Versus Bijendra Kumar @ Golu .......... Opposite Party Criminal Appeal (DB) No. 576 OF 201.Bijendra Kumar @ Golu Appellant Versus State of Jharkhand ... ... Respondent ------ CORAM: HONBLE MR. JUSTICE D.N.PATEL HON'BLE MR. JUSTICE PRASHANT KUMAR ------ For the Appellant: Mr. Shekhar Sinha For the Opposite Party: Mr. Nityanand Sinha, Advocate Mr. Kishlay Prasad, Advocate (In Death Reference No.1 of 2012) For the Appellant : Mr. Nityanand Sinha, Advocate Mr. Kishlay Prasad, Advocate For the Respondent: Mr. Shekhar Sinha ------- Per D.N. Patel, J.
1. The criminal appeal has been preferred by the appellant accused against the judgment and order of conviction and sentence passed by the Judicial Commissioner, Ranchi, dated 26th April, 2012 and 2nd May, 2012 respectively, in Sessions Trial No. 380 of 2011, vide which the present appellant has been convicted for the offence punishable under Section 302 I.P.C for committing murder of Khushboo Shahdeo and has been awarded death sentence. The death sentence has been referred to this Court under section 366 of the Criminal Procedure Code for its confirmation by this Court under Section 368 of the Code of Criminal Procedure”
2. Factual matrix of the case are as under: Prosecution case, in short, is that on 27th April, 2011, at about 4.45 p.m. when deceased Khushboo Shahdeo came out of Room No. 41 of St. Xavier's College at Ranchi (capital city of the State of Jharkhand), the appellant accused suddenly rushed to her and beheaded her with three blows on her neck with a sharp cutting instrument- 'Bhujali'. This incident was seen by a security guard (P.W.1) of the college as well as Basanti Devi (P.W. 14), who is the grand mother of the deceased and informant of the case. It is also a case of the prosecution that immediately P.W.1 and other guards started whistling so that the accused appellant, who was running away, might be caught hold of. The college has a football ground where the students were playing. As P.W.1 was chasing the appellant, he was also shouting so that the person (accused appellant) who was running might be caught hold of and ultimately few students, who are P.W.2, P.W.4 and P.W.5 caught hold of the appellant, whose shirt and pant were bloodstained.
3. The police was called immediately. The police reached the spot and arrested the appellant accused. The weapon, which was a sharp cutting instrument, was also lying beside the dead body in the corridor of first floor of the college. Necessary Panchnamas, like Inquest Panchnama and Seizure panchnama, were drawn. F.I.R. was lodged and the police, after registering the case, investigated the same and on completion thereof chargesheet was filed. During investigation, several other items, like identity card and bag of the accused etc. were also seized. Statements of several witnesses were recorded. After the charge-sheet was filed, case was committed to the court of sessions where, during the course of trial, prosecution examined 23 witnesses. Detailed investigation, including the DNA test etc., have been brought on record by the prosecution witnesses.
4. On the basis of the evidence on record, the learned trial court has convicted the appellant accused for the offence punishable under section 302 of I.P.C. and awarded death sentence and has referred the matter to this Court under section 366 Cr.P.C. for confirmation of the death sentence by this Court under Section 368 Cr.P.C. Appellant accused has also preferred appeal (the present appeal) against the judgment and order of conviction and sentence passed by the learned trial court 5. We have heard both the cases together, i.e. death reference as 3 well as criminal appeal preferred by the appellant accused. Submissions made by counsel for the appellant in Cr.appeal No. 576 o”
6. Counsel appearing for the appellant accused mainly submitted that the prosecution has not proved the offence of murder of the deceased beyond reasonable doubt. There are material contradictions, omissions and improvements, which have not been properly appreciated by the learned trial court and hence the judgment and order of conviction and sentence passed by the learned trial court deserve to be set aside.
7. Counsel for the appellant has also read out meticulously the deposition of prosecution witnesses and pointed out that there was, in fact, no eyewitness to the whole incident and P.W. 1 and 14 are not real but so called eye witnesses.
8. It is further submitted by the counsel for the appellant that what is stated in the deposition of P.W.14, it is missing in the F.I.R.. Further, there is no mention of the weapon Bhujali in the Inquest Panchnama, whereas in the deposition given by P.W. 14, there is a mention of usage of weapon Bhujali. Similarly, during the narration of the whole incident P.W. 14 has stated that three blows of Bhujali were given, whereas reference of three blows is neither in the F.I.R. nor in the statement of the witness under section 161 Cr.P.C. As per P.W.1, who is the eye witness as per the prosecution, he reached at the place of offence immediately after the whole incident has taken place and none else was present there at that time. This falsifies deposition of P.W.14 and therefore, P.W.14 is not an eye witness.
9. Moreover, it is also submitted by the counsel for the appellant that most of the prosecution witnesses are hear-say witnesses. In fact, nobody has seen the incident at all. On account of the examination being conducted that day, nobody was allowed to enter into the premises of the college. The main gate of the college was closed and only those, who were in possession of identity cards, were allowed to enter the premises. Therefore, P.W.14, who is the grand mother of the deceased, cannot come into the premises of the college because she was not an examinee and her presence in the college premises itself is a doubtful proposition. Therefore, P.W. 14 is not an eye witness to the incident”
10. Counsel for the appellant has also pointed out that marriage card of the deceased should not have been marked Ext. 1, as the same is not proved at all. Similarly, on the Bhujali, i.e. the sharp cutting instrument, there is no evidence of any finger print of the accused brought on record by the prosecution.
11. Thus, the prosecution has failed to prove the offence beyond reasonable doubt and as this aspect of the matter has not been properly appreciated by the learned trial court, judgment and order of conviction and sentence passed by the learned trial court deserves to be set aside.
12. So far as death sentence is concerned it is vehemently submitted by the counsel for the appellant accused that the appellant, who was 22 years of age at the time of offence, was pursuing his studies in Diploma in Engineering. Thus, appellant is of young age and moreover, there is no antecedent of the appellant accused and as all these facts have been brought on record, death sentence may not be awarded to the appellant accused.
13. counsel for the appellant has meticulously pointed out the mitigating circumstances as stated in the decision rendered by the Honble Supreme Court in the case of Bachan Singh Vs. State of Punjab, reported in (1980) 2 SCC 68.as well as in the decision rendered by the Honble Supreme Court in Ramnaresh & Others v. State of Chhattisgarh reported in (2012) 4 SCC 257.It is also submitted by the counsel for the appellant that the whole offence has taken place due to extreme emotional disturbance and frustration as the appellant accused was in love with the deceased. Further, the appellant is of young age and therefore, there are all chances of rehabilitation of the appellant and in fact, the appellant is interested in pursuing his studies further and apart from the above facts, he is also not a professional killer. In fact, all the mitigating circumstances stated by the Honble Supreme Court in the aforesaid decisions are present in this case. Thus, the case of appellant is not falling within the criteria of rarest of rare case.
14. Counsel for the appellant has also pointed out that P.W. 1 has not been declared hostile by the prosecution and relied upon the decision rendered by the Honble Supreme Court in the case of Mukhtar Ahmed Ansari Vs. State (NCT of Delhi) reported in (2005) SCC (Cri) 1037 . This decisions have been cited for the proposition of law that if the witness is not 5 declared hostile, his deposition is binding. Much emphasis has been given by the counsel for the appellant upon the deposition of P.W. 1 to highlight that he was the only man, who was present and nobody else was there at the scene of offence.
15. With all these evidences on record the prosecution has failed to prove the offence beyond reasonable doubt, hence the appeal may kindly be allowed and the death reference may not be entertained by this Court. Submissions made by the learned A.P.P. appearing for the State 16. We have heard the learned A.P.P. appearing on behalf of the State, who has vehemently submitted that this is a preplanned and well designed murder of a young girl, namely Khushboo Shahdeo, when she was coming out of the examination hall, at St. Xavier's college, Ranchi on 27 th April, 2011 at about 4.45 p.m. The appellant accused was caught red handed with blood stained clothes. Weapon was also lying nearby the dead body and there was an element of brutality in the murder as it has been committed by the appellant accused by giving three blows. The deceased was beheaded. The murder has been committed with full degree of mens rea when several students were present in the college campus. The accused had come all the way from Jamshedpur, which is approximately at a distance of 130 kilometers from Ranchi, where St. Xavier college is situated. Initially Khushboo Shahdeo (deceased) was staying at Jamshedpur with her maternal grand mother. The appellant accused was harassing the deceased at Jamshedpur also and therefore, parents of the deceased decided to bring her to Ranchi. On 27th April, 2011, deceased Khushboo Shahdeo was in the examination hall at St. Xavier college where the examination was going on and when the examination was over, she came out of the examination hall. At that time, appellant rushed to her and assaulted using a sharp cutting instrument (Bhujali), by inflicting three blows on the neck of the deceased as a result of which she died on the spot and thereafter, accused appellant ran away. P.W.1, who is a security guard , rushed immediately there, chased the accused, who was caught hold by other students, I.e. P.W.2, P.W.4 and P.W.5.
17. P.W. 14, who is the grand mother of the deceased, was climbing the stairs at the relevant time. She has also seen the incident from some distance. The map of the place of incident is at Ext.
8. On perusal of this map and the position of the dead body, it is apparent that the deposition 6 given by P.W. 14 that she has seen the whole incident is absolutely true and correct.
18. P.W.1, who is a security guard, has also seen the incident. Thereafter, when appellant tried to run away, he was chased by P.W.1, who was whistling and shouting that catch hold of the person who is running away . Appellant accused was running away towards the football ground of the said college where several students were playing foot ball and some of them, who are P.W.2, P.W.4 and P.W. 5, caught hold of the appellant. It is further submitted by the A.P.P. The appellant accused, when he was tried to be caught hold of by P.W.2, 4 and 5, he was threatening these students that he will use fire arm to kill them. This conduct also reflects the mens rea. Ultimately, he was caught hold of. The shirt and the pant of the appellant accused had enough blood stains.
19. Counsel for the State has read out the deposition of the prosecution witnesses in detail and pointed out that P.W. 1 and 14 are the eye witnesses. They have narrated the incident in detail without any exaggeration and without any material omission and contradiction. Even looking to the cross-examination of these two witnesses (P.W. 1 and 14), nothing is coming out in favour of the appellant accused. Counsel for the State has also pointed out that F.I.R. was lodged immediately on the same day, i.e. on 27th April, 2011 at about 5.15 p.m. Accused was named in the F.I.R. and in the F.I.R. three blows were not narrated by P.W.14, but she has clearly stated that with a sharp cutting instrument appellant accused has committed the murder of the deceased and has severed the head of the deceased. The A.P.P. submitted that F.I.R. is a rough sketch of the incident. Since the F.I.R. was lodged immediately after the incident in the college premises itself, therefore, mental condition of P.W. 14 has to be appreciated by this Court. F.I.R. is not an encyclopedia of the whole crime and therefore, contention raised by the counsel for the appellant that narration of three blows were not there in the F.I.R. is not of much help to the appellant- accused. On one side the dead body of her grand daughter was lying there and on the other F.I.R. was recorded by P.W.14, who is a lady of much advanced age and therefore, at that moment the word three blows might not have been used by her, but looking to the deposition given by P.W.14, she has clearly stated that three blows were given on the neck of the deceased and ultimately her head was severed. This deposition is corroborated by the deposition of Dr. Ajit Kumar Choudhary (P.W.19), 7 Professor and Head of the Department, Forensic Science, RIMS, Ranchi, who conducted postmortem examination of the deceased on the very same day at about 21.30 hours. On perusal of the medical evidence, it appears that it has been clearly stated by Dr. Ajit Kumar Choudhary that three blows have been given. Thus, there is no exaggerated version given by P.W.14. On the contrary, her deposition is a natural one. Her presence at the scene of offence is also very natural as she is the grand mother of the deceased and as stated by several witnesses, the gate of the St. Xavier college was open because the examination was to be over at about 5 p.m. Moreover, it has been stated by P.W.3, who is one of the security guards, that ladies were allowed to enter into the premises of the college. P.W.14, being the grand mother, was allowed to enter into the premises of the St.Xavier's college. The A.P.P. has also pointed out from the deposition of the security guard (P.W.3) that no sooner had P.W. 1 started whistling, he also ordered for closure of the gate. It has been deposed by P.W.3 and P.W.6 that immediately the gates were closed, meaning thereby the gates were open at the time of completion of the examination. The A.P.P. further submitted that the presence of P.W. 14 within the campus was absolutely natural and at the time the offence was committed, she was climbing the staircase of the 1 st floor of St. Xavier college and since she has seen the whole incident from certain distance, therefore, her clothes were not bloodstained. She has also identified the accused in the court. Similarly other prosecution witnesses have also identified the appellant accused in the court because they had seen the appellant accused either while chasing him or while he was caught hold of by them. Thus, there is no chance of mistaken identity of the appellant accused.
20. A.P.P. has also pointed out that blood stained clothes and other articles, which were seized, like sharp cutting instrument, identity card of the appellant accused etc., were sent for Forensic Science Laboratory report. The F.S.L report has also been taken on record as Ext.14. P.W. 21 proved the F.S.L. report and the blood stains on the clothes of the accused have also been meticulously matched with the help of DNA test. It is submitted by the A.P.P. that with the help of the prosecution witnesses, the prosecution has proved the offence of the murder of the deceased Khushboo Shahdeo, beyond reasonable doubt, which has been committed by the appellant accused and no error has been committed by the learned trial court in passing the order of conviction in Sessions Trial No. 380 of 2012”
21. So far as quantum of punishment is concerned, it is vehemently submitted by the counsel for the State that appellant has committed premeditated and well designed murder of a young girl named Khushoo Shahdeo. Even at Jamshedpur, where the deceased was staying initially, the appellant accused was harassing the deceased. These facts have been highlighted by P.W.14, P.W. 13 and P.W. 17, who are the Grand mother, uncle and father of the deceased respectively. Moreover, on perusal of the deposition of maternal uncle of the deceased, namely Rajesh Kumar (P.W.10), a resident Jamshedpur, it appears that this witness has also stated these facts clearly before the trial court that it is due to the harassment by the appellant accused, deceased Khushboo Shahdeo was compelled to come to stay with her parents at Ranchi, which is at a distance of 130 Kms. from Jamshedpur. The appellant accused came all the way from Jamshedpur to Ranchi with only intention to commit the murder of the deceased and entered into the premises of St. Xavier's College with a bag, which was seized with identity card and with a cover of the sharp cutting weapon Bhujali. All these things were lying nearby the dead body and were ultimately seized and the seizure list (panchnama) has been drawn which reflects that this is a pre-planed, well designed action on the part of the accused. Moreover, marriage card of the deceased has also been brought on record, which has been exhibited as Ext. 1 and with the help of prosecution witness no. 23, it has been taken as an evidence on record of the trial court. Therefore, it is apparent that as marriage of the deceased was to be solemnized on 27th May, 2011, the appellant has committed murder of the deceased. Counsel for the State has therefore pointed out with the help of the decision rendered by the Honble Supreme Court in the case of Machhi Singh & Others vs. State of Punjab reported in (1983) 3 SCC 47.that the appellant deserves death sentence and no error has been committed by the learned trial court in awarding death sentence to the appellant accused.
22. With respect to mitigating circumstances, which have been referred to in the decision rendered by the Honble Supreme Court in the case of Bachan Singh v. State of Punjab, reported in (1980) 2 SCC 684.it has been stated by the A.P.P. that none of the mitigating circumstances is present in this case. Young age of the accused cannot be taken into consideration, if the murder has been committed with full degree of mens rea. The appellant has come all the way from Jamshedpur, with a sharp 9 cutting instrument, on a motorbike, entered into the premises of the college and was eagerly waiting for Khushboo Shahdeo to come out of the examination hall and no sooner did she come out of the examination hall, the appellant rushed to her immediately and after killing her, ran away. This conduct that he was running away after the offence is very much relevant and he has also threatened the persons ( P.W. 2, 4 and
5) who were chasing him, before he was actually caught hold of. He threatened that he will use fire arm. The A.P.P. has submitted that the victim was also of young age. She was pursuing her studies and therefore, death sentence awarded by the trial court may be confirmed by this Court in exercise of powers under section 368 of the Code of Criminal Procedure in Death Reference No. 1 of 2012 and the appeal preferred by the appellant may be dismissed by this Court. Observation made by this Court :
23. Regarding trustworthiness of the deposition of P.W.14 (One of the two eye witnesses): Having heard counsel for both sides and looking to the facts and evidences on record, it appears that the whole incident has taken place on 27th April, 2011, at about 4.45 p.m. in broad day light. As per prosecution, incident has been witnessed by one of the security guards, namely Mahabir Kachhap (P.W.1) and Grand mother of the deceased, namely Basanti Devi (P.W.14), who is the informant and who accompanied the deceased to the St. Xavier's college, where the examination was scheduled to have been held. The hours of the examination was 2.00 p.m. to 5.00 p.m.. The incident has taken place when Khushboo Shahdeo was coming out from the examination room no. 41 of St. Xaviers college, Ranchi. At the relevant time P.W.14 was also climbing the stairs of the college. On perusal of the map prepared by the Investigating Officer at Ext. 8, the place at which murder has taken place is clearly visible from the staircase. P.W.14 has narrated in her deposition that she has seen appellant committing the murder of the deceased by sharp cutting instrument from the staircase. He has given three blows and severed the head of the deceased. Immediately after the incident, police was called and F.I.R. was lodged on 27th April, 2011, at about 5 p.m. Inside the college premises. From the cross- examination of P.W.14, nothing comes in favour of the accused appellant. It has been argued by the counsel for the appellant that in F.I.R. there is no reference of the word three blows and therefore, the deposition of P.W.14 is an exaggerated version or an improved version. This contention is not 10 accepted by this Court, mainly for the reason that when the police was called in the St. Xaviers College, on one hand dead body was lying at the scene of offence and on the other, F.I.R. was recorded immediately and therefore, mental status of the informant (P.W.14), who is the grand mother of the deceased and an aged lady, has to be appreciated. Moreover, F.I.R. is a rough sketch of the incident and it is not an encyclopedia of the whole offence. It is sufficient for treating an information to police as an F.I.R, if it contains major details of the incident and it puts criminal law in motion. Though P.W.14 is old, she has narrated the whole incident with all sufficient details based upon her power of observation of the offence, memory and reproduction of relevant and material facts in the court. On perusal of the deposition of P.W.14 before the court, it is apparent that her presence at St. Xavier College is very natural . She has narrated the whole incident in detail without any major contradiction or omission. Her deposition is also corroborated by the medical evidence given by Dr. Ajit Kumar Choudhary, who carried out postmortem examination of the dead body of the deceased on 27th April, 2011 at about 21-30 hours and he has stated that three blows were given to the body of the deceased. Thus, P.W. 14 is a trustworthy and reliable witness.
24. Trustworthiness of the deposition of P.W.1 (One of the two eye-witnesses) :Looking to the deposition given by P.W.1, it appears that he is the Security guard, who rushed to the scene of offence immediately because he has seen the appellant accused committing murder of the deceased in the corridor of St. Xaviers college. This prosecution witness (P.W.
1) reached at the spot where the appellant was committing murder of the deceased. He shouted immediately and started whistling also, being a security guard, and since the appellant was running away, P.W. 1 started chasing the appellant accused and P.W. 1 also started whistling and shouting that catch hold of the accused. Immediately the gates, which were open, were closed by the other security guards, who are P.W.3 and 6. The appellant was running towards the football ground, which is within the premises of the college. Other students were playing football. Having seen the appellant accused running, being chased by P.W. 1, they also tried to catch hold the appellant accused. At that time accused was threatening to kill them using fire arm upon them and ultimately P.W.2, P.W. 4, P.W. 5 caught hold of the accused. Thus, the deposition of P.W. 1 has all details of the offence committed by the appellant accused. Presence of P.W.1 at the 11 place of occurrence is also very natural, he being a security guard. He is the first person to reach the place of occurrence. P.W. 1 is also one of the persons, who was chasing the appellant accused. He has also identified the appellant accused in the court. On perusal of his cross-examination, his deposition given in examination-in-chief, it appears that nothing is coming out in favour of the appellant accused. P.W. 1 has deposed without any exaggeration, omission, contradiction and improvement and his deposition is also is in consonance with his statement given under Section 164 Cr.P.C, which is at Ext. 6/3. Thus, P.W.1 is a trustworthy and reliable witness and he is also one of the eye witnesses to the incident.
25. Reliability of the deposition of P.W. 2, P.W.4 and P.W.5, which corroborates the deposition of P.W. 1 and P.W. 14 (eye witnesses) : On perusal of the deposition of Sandeep Munda (P.W.2), Shiv Kumar Raman (P.W.4) and Akash Raj (P.W. 5), who are all students, it appears that they are the witnesses, who have caught hold of the appellant accused as he was running away towards the football ground. Looking to their deposition, it is clear that their presence in the St. Xavier's college is also natural They caught hold of the appellant hearing the whistling and shouts of P.W.1 The appellant accused threatened these witnesses that if they try to catch him, he will kill them using fire arm. Counsels for both the sides has read out these three depositions meticulously. Looking to their depositions, it appears that they have also identified the accused appellant in the court. They have also confirmed each others presence in the deposition. They have also confirmed the presence of P.W. 1 at the time when appellant was caught hold of by them. Moreover, appellant had also confessed before them that he has committed murder of the deceased. The deposition of these three students were also corroborated by their statement recorded under section 164 Cr.P.C. These statements recorded under Section 164 Cr.P.C. have been marked as Ext. Nos. 6, 6/1 and 6/2. Looking to the depositions, they have also stated that the clothes, i.e. shirt as well as pant of the appellant accused were bloodstained. Looking to the cross examination of these three witnesses nothing is coming out in favour of the appellant accused. On the contrary, in their cross-examination also, they have narrated the whole incident in detail. Though they are not eye witnesses, they are witnesses of the facts of the offence immediately after the offence has taken place, which is highly relevant as per the Indian Evidence Act. The deposition of P.W.2, 4 and 5 is corroborating the evidences given by P.W. 1 and P.W. 14 in several 12 aspects like the scene of offence, time of offence and blood stained clothes of the appellant. They have also stated about the confession made by the appellant accused before them. They have also stated about the presence of P.W.1. Thus, though they are not eye witnesses, they have actually corroborated the deposition of P.W.1 and P.W.14, who are the eye witnesses. Over all, looking to their depositions, they are trustworthy and reliable witnesses.
26. Trustworthiness of the depositions of P.W. 3 and P.W. 6 which corroborates the deposition of P.W. 1 and P.W. 14 (eye witnesses) : On perusal of the deposition of P.W. 3 and P.W.6, who are security guards, it appears that they have stated clearly that no sooner did they hear the whistling of P.W.1 and shouting that murder has been committed, they closed the gates of the St. Xavier collage. They have also narrated that after the accused was arrested, the gates were open because it was a time for the students to come out of the collage premises as the hours of examination was over, which was in between 2 to 5 p.m. P.W. 3 has narrated that ladies were allowed to enter into the gate of St. Xavier's college and other students were allowed to enter into the college upon showing their identity cards. Looking to the deposition of the prosecution witnesses and looking to the Seizure Panchnama, it appears that the appellant accused has also entered into the St. Xavier college by showing identity card, which was also seized from the bag of the accused. Identity card and cover of the sharp cutting weapon were seized from the bag of the appellant accused. This evidence is also on record. Thus, depositions of P.W. 3 and P.W.6 reflect that at the end of the examination the gate of the college was opened. Normally, the parents and other relatives of the examinees enter into the premises of the college to take their children back. The gates were closed upon instruction of P.W. 1 and they have also stated that ladies were allowed inside the gate during examination hours also. This reflects that the presence of P.W. 14 inside the college is very natural. Similarly, the accused also entered into the college either by showing his identity card slightly earlier or at the end of the examination hours as the gate was opened by that time. On perusal of cross-examination of these witnesses, it appears that there is no major contradiction or omission or improvement. On the contrary though they are rustic witnesses, they have narrated the facts about the offence in detail. Depositions given by P.W.3 and P.W. 6 also corroborates the depositions of P.W.1 and P.W.
14. We 13 see no reason to disbelieve the deposition of these two security guards.
27. Reliability of P.W. 8 and P.W.9, who are college employees and P.W.10, P.W.13 and P.W.17, who are near relative of the deceased : On perusal of the deposition given by P.W.8 and P.W.9, it appears that one is Examination Controller, St. Xavier's College, Ranchi and the other is a Lecturer of Geography in the same college. These two witnesses have also narrated whatever they have seen immediately after the murder has taken place. Their presence in the college was natural. They have also corroborated the deposition of other witnesses regarding place of offence and time of offence. They have also corroborated the deposition of the eye witnesses, i.e. P.W. 1 and P.W. 14 and we have also no reason to disbelieve these two witnesses. P.W. 9 was in the room No. 41 where the deceased was allocated seat for the ongoing examination. P.W. 10 is maternal uncle of the deceased, namely Rajesh Kumar, who is staying at Jamshedpur, has stated that he runs a coaching class of Spoken English, where the accused had got admission and came in contact with Khushboo Shahdeo and because of harassment by the appellant at Jamshedpur, ultimately for pursuing further studies, the deceased was compelled to go to Ranchi, which is capital city of the State of Jharkhand and which is at a distance of 130 Kms. from Jamshedpur. Thus, looking to the deposition of these witnesses, behavior of the accused is coming on record that even prior to the incident, he was harassing the deceased at Jamshedpur and pursuant thereto, the deceased was compelled to come to Ranchi. This deposition got further corroboration from the deposition given by P.W.17, who is father of the deceased, namely, Lal Maheshwar Nath Shahdeo, as well as corroboration is also given by P.W.13, who is uncle of the deceased, namely, Lal Bhrigu Nath Shahdeo. These three witnesses, though not eye witnesses, have stated certain facts, which are very much relevant so far as motive is concerned. They have narrated that the deceased was pursuing her studies at Jamshedpur as better educational facilities were available there and later on, she was compelled to be brought to Ranchi and at the relevant time she was staying wither her father (P.W.17). Harassment, right from Jamshedpur, has been narrated by these witnesses. Therefore, deposition of these witnesses is also relevant, so far as decision in this case is concerned. On perusal of the cross-examination of these witnesses, it appears that nothing is taken away from their examination-in-chief. There are no major omissions or contradictions in their depositions. They have 14 narrated the facts in a natural way, without any exaggeration, omission and improvement and therefore, they are also reliable and trustworthy witnesses.
28. P.W.7 and P.W.15 (Seizure list witnesses) : On perusal of the deposition given by P.W.7 and P.W.15, who are the witnesses of Seizure list, they have also narrated the items which were seized by the Investigating Officer. Seizure list has been marked as Ext.
4. Several items have been seized from the scene of the offence, i.e. bag of the appellant, weapon used- Bhujali, the cover of the Bhujali, identity card of the appellant, blood stained shirt-pants of the appellant, blood of the deceased etc. The ladys purse of the deceased was also seized. On perusal of the deposition of these two witnesses, it is clear that they have proved the seizure list and the items, which were seized by the investigating officer.
29. Deposition of P.W. 20 : As per deposition given by the Magistrate ((P.W. 20), namely Rajiv Ranjan, he has also stated about the depositions of P.W. 1, 2, 4 and 5 made before him under 164 Cr.P.C., which are marked Ext. 6, 6/1, 6/2 and 6/3. The deposition of P.W. 20 is corroborated by the deposition given by P.W. 1, 2, 4 and 5.
30. Deposition of P.W.16, P.W.18 and P.W.23 corroborates the evidence of the eye witnesses : On perusal of the deposition of P.W.16, P.W. 18 as well as P.W. 23, who are the police witnesses, it appears that they have also narrated in detail the incident. Immediately after the offence, the police was called and P.W.16 rushed to the scene of offence. Blood stained shirt and pant of the accused, cover of the weapon and several other items like lady's purse, identity card, bag of the appellant were seized from the scene of offence i.e. from the premises of St. Xavier's College. The bag of the appellant accused was seized, when he was caught hold of. Looking to the deposition of these witnesses they have narrated clearly the Seizure Panchnama items. Thereafter, the seized items were sent to the Forensic Science Laboratory. D.N.A. test was also carried out. The map which is at Ext. 8 is also proved by these witnesses, over and above seizure Panchnama. From their deposition and the depositions of P.W.1 and P.W. 14, it is clear that there is no material omission or improvement of the deposition of the eye witnesses.
31. Deposition of P.W. 19 (doctor) supports the prosecution version of three blows by a sharp cutting weapon: In his deposition, Dr. Ajit Kumar Choudhary (P.W.19), a Professor and Head of the Department, 15 Forensic Science, RIMS, Ranchi, who has carried out postmortem examination of the body of the deceased on the very same day, i.e. on 7 th April, 2011, at about 21-30 hours, has stated as under: The body was of average built rigour mortis was present all over the body. Abdomen was not distended. Dried blood stain over the face, neck both upper limb, right foot, the clothes were all soaked with blood. The body was decapitated through the neck at the level of 3rd cervical vertebrae and the head was lying separately. On examination of the decapitated wound, it was cleanly cut with presence of two tissue tags on the lower margin of the wound indicating minimum three blows. There was infiltration of blood and blood clot in the soft and bony tissue at the right of the wounds. The head correctly fix with the body in all respect. Internal organ pale. Opinion:
1. Above noted injuries are antemortem 2. Caused by heavy sharp cutting weapon.
3. Death was due to above noted decapitated wound.
4. Time since death was between 3 to 12 hours from the time of postmortem.
5. This post mortem report was prepared by me and bears my signature. It is marked Ext.5 In view of the aforesaid, it is apparent that the doctor has given clear statement that there were minimum three blows and that the injuries were antemortem in nature and have been caused by heavy sharp cutting weapon. Time of death was between 3 to 12 hours from the time of the postmortem examination. Thus, the deposition of P.W.19 corroborated the deposition of P.W.14, who is the informant and eye witness to the incident.
32. It has been argued out by the counsel for the appellant that the word Bhujali has not been used in Inquest Panchnama and therefore, it is an improvement by P.W.14. Moreover, it has also been contended by the counsel for the appellant that there was too much exaggeration in the deposition of the P.W. 14 that three blows have been inflicted because 'three blows' were never mentioned in F.I.R. and therefore, P.W.14 is not a reliable witness.
33. This contention is not accepted by this Court keeping in mind the deposition of the doctor (P.W.19) who stated herein above after conducting 16 postmortem examination on the dead body of the deceased 34. It ought to be kept in mind that name of the weapon is not a material aspect at all when correct description of the weapon has already been given by the eye witnesses. Normally, people in general are not expected to be so familiar with the weapons as to identify them by their exact name and therefore, they are generally described in colloquial language. Sometimes in regional language the weapon is described as 'Chura' (knife) or 'Bara chura' (big knife) and if a witness is slightly intelligent and educated, he might use the words 'sharp cutting weapon' and therefore, in the present case, witnesses, though have not identified the weapon by its exact name, but correct description of the weapon in question is found from their deposition. The word Bhujali might not have been used by P.W. 14 and in the inquest Panchnama this word might not have been used, but in the column no. 8 of the same, the words 'sharp cutting instrument' have been used. Apparently, because of the aforesaid reasons, P.W.4, who is a student of the said college, used the word 'Bara Chura'. Thus, correct name of the weapon might not have been used by the prosecution witnesses, but the fact remains that the said weapon has been described by the witnesses as what exactly it is, i.e. a 'sharp cutting instrument'. On the order of this Court, the box containing the material exhibits has been opened and after the weapon 'Bhujali' is seen by this Court, box is again sealed. From the appearance of this sharp cutting instrument, it is clear that no mistake has been committed by the prosecution witnesses in describing it as a 'sharp cutting instrument' or as a 'Chura' or as a 'Bara Chura' or as a 'Bhujali.' In the argument put forth by the counsel for the appellant, name of the weapon is a much debated point, but in view of what has been stated above, description of the weapon by its exact name is not required, rather what is required is its exact description and that has been given by the prosecution witnesses. Moreover, on perusal of the deposition of Shrawan Kumar Shukla (P.W.23), it appears that sharp cutting instrument in question had fitted into the cover of the sharp cutting instrument (which was recovered from the bag of the accused) exactly. Thus, it is apparent that the sharp cutting instrument was brought by the accused along with its cover. The sharp cutting instrument was lying beside the dead body and cover was in the bag of appellant accused, which was seized when he was caught by P.W. 1, P.W.2, P.W.4 and P.W.5.
35. P.W. 23 has also proved F.I.R.(Ext.
10) and signature thereupon. He has also proved the map of the scene of offence, which is Ext. 8 and other items, which were seized. Thus, deposition of this police witness is also 17 corroborating the deposition of the prosecution witnesses, especially of the eye witnesses.
36. Deposition of P.W.21 and P.W.22, regarding blood test and D.N.A. Test, supports the prosecution version that it is the appellant who committed the murder: In their deposition, P.W. 21 and P.W. 22, who are Assistant Director and Dy. Director of Forensic Science Laboratory, have stated clearly about the FSL report (Ext. No. 7). These two witnesses have deposed that Blood stains on the pant and shirt of the appellant accused and the weapon are of the same group, i.e Group 'B'. The blood group of the deceased is also B. Likewise, these witnesses have also stated about the DNA test, which reveals that DNA of the bloodstains on the shirt and pant of the appellant accused and the weapon matched with the DNA of the parents of the deceased. DNA of blood found on the shirt and pant of the accused and upon the weapon used in the murder matched with the DNA of the parents of the deceased. Thus, these two witnesses have clearly narrated about the FSL report, matching of the blood group and matching of the DNA. These leaves no room for doubt that it is the appellant who has actually committed the murder of the deceased.
37. Thus, taking into account the evidences of total 23 prosecution witnesses, it appears that there are two eye witnesses to the incident, i.e. P.W.1 and P.W.14 and they have narrated the incident in detail and without any major contradiction, omission, exaggeration and improvement. P.W.2, 4 and 5 are students, who caught hold of the deceased after the incident has taken place. They have corroborated the deposition of the eye witnesses. Medical evidence given by P.W.19 is also corroborative. Police witnesses, who are P.W.16, 18 and 23, have also proved the Seizure Panchnama, F.I.R., map and they have corroborated the deposition of all the other prosecution witnesses and thus, it is clear that from the deposition of these prosecution witnesses, prosecution has proved the offence committed by the accused appellant beyond reasonable doubt. The word Bhujali might not have been used in the Inquest Panchnama, but it is not material aspect of the matter at all. As stated herein above, in fact, in the column no.8 of the inquest Panchnama, investigating officer has used the words "Sharp cutting weapon", which is sufficient for description of the weapon. We therefore see no reason to quash and set aside the order of conviction passed by the trial court. On the contrary, in our view, learned Trial Court has considered meticulously all the material, evidences and depositions on record before convicting the accused”
38. In view of the aforesaid facts, we, hereby, upheld the judgment of conviction passed by the learned trial court. Observation made by this Court on the quantum of punishment 39. Now, the crucial question is regarding quantum of punishment because learned trial court has awarded death sentence to the appellant and referred the matter to this Court under Section 366 of the Code of Criminal Procedure for confirmation of the death sentence under section 368 of the Code of Criminal Procedure.
40. Before this Court makes an observation regarding quantum of punishment, following are the points which deserve attention: Special reasons 41. Sub section 3 of Section 354 of the Code of Criminal Procedure, which requires assignation of special reason in case death sentence is awarded, reads as under: 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. (Emphasis supplied) Therefore, under Sub Section 3 of Section 354 of the Code of Criminal Procedure, there is a mandate as to recording of 'Special reasons' if the court is inclined to award death penalty.
42. Thus, during sentencing process,'Special reasons' required to be stated in terms of Sub section 3 of Section 354 of the Code of Criminal Procedure, should satisfy the comparative utility of capital sentence over life imprisonment. Mitigating circumstances 43. It has been held by the Hon'ble Supreme Court in the case of Bachan Singh vs. The State of Punjab reported in (1980) 2 SCC 68.in paragraph no. 206 and 207 as under:
206. Dr. Chital has suggested these mitigating factors:
19. 'Mitigating circumstances:-In the exercise of its discretion in the above cases, the court shall take into account the following circumstances: (1) That offence was committed under the influence of extreme mental or emotional disturbance. (2) The age of the accused. If the accused is young or old, he shall not be sentenced to death. (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated. (5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence. (6) That the accused acted under the duress or domination of another person (7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
207. We will do no more than to say that these are undoubtedly relevant circumstances and must be given great weight in the determination of sentence. (Emphasis supplied) The aforesaid decision mandates identification of aggravating and mitigating circumstances to strike a just balance between them by the court before it passes a death sentence.
44. Further, it has been held by the Hon'ble Supreme Court in the case of Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, reported in (2009) 6 SCC 52.at paragraph 57 as under:
20. 57. Circumstances which may not have been pertinent in conviction can also play an important role in the selection of sentence. Objective analysis of the probability that the accused can be reformed and rehabilitated can be one such illustration. In this context, Guideline 4 in the list of mitigating circumstances as borne out by Bachan Singh is relevant. The Court held: (SCC p.750, para
206) 206. (4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy Conditions (3) and (4) above. In fine, Bachan Singh mandated identification of aggravating and mitigating circumstances relating to crime and the convict to be collected in the sentencing hearing.......................
45. In view of the aforesaid decision, it is mandated that the court, intent upon awarding death sentence, has to identify and appreciate the mitigating circumstances as well as the aggravating circumstances in the facts of the case, and the State shall, by evidence, prove that the accused does not satisfy the conditions 3 and 4 of the mitigating circumstances, as stated herein above. Broad values guiding sentencing process:
46. Though there cannot be any straight jacket formula and any mathematical rule for sentencing as it will tend to sacrifice justice at the altar of the blind uniformity, but from the aforesaid decision (Bachan Singh v. State of Punjab) the following three guiding broad values are emerging: (i) Individualised sentencing, (ii) Rarest of rare case (iii ) Principled sentencing 47. Individualised sentencing - Effective compliance of sentencing procedure under Section 354 (3) Cr.P.C. calls for sufficient judicial discretion. Strict chanelling of discretion would go against the founding principles of sentencing as it will prevent the sentencing court from identifying and weighing various factors relating to the crime and the criminal such as culpability, impact on the society, gravity of offence, motive behind the crime etc.It has also been 21 held in the case of Bachan Singh that Standardisation of sentencing process which leaves little room for judicial discretion to take account of variations in culpability within single offence category ceases to be judicial. It tends to sacrifice justice at the alter of blind uniformity. Indeed, there is a real danger of such mechanical standardisation degenerating into a bed of procrustean cruelty.
48. Rarest of rare dictum The chief ingredients of the 'rarest of rare' dictum are certain standards or norms laid down for Identification and categorisation of rarest of rare cases It has been held by Supreme Court in Bachan Singh v. State of Punjab as under :
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. (Emphasis supplied) Thus, 'rarest of rare' dictum demands that Law's instrumentalities may not be used to take a life save in an extraordinary and exceptional case only when the alternative option (sentence of life imprisonment) is unquestionably foreclosed. Following are the features of the Rarest of rare dictum : (a) Constitutional guarantees : The rarest of rare dictum takes its colour from constitutional guarantees. The court has, therefore, to be mindful that the true import of rarest of the rare doctrine speaks of an extraordinary and exceptional case only. It has been held by Hon'ble Supreme Court in the case of Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra reported in (2009) SCC 55.at paragraph 135 as under:
135. Right to life, its barest of connotation would imply right to mere survival. In this form, right to life is the most fundamental of all rights. Consequently, a punishment which aims at taking away life is the gravest punishment. Capital punishment 22 imposes a limitation on the essential content of the fundamental right to life, eliminating it irretrievably. We realise the absolute nature of this right, in the sense that it is a source of all other rights. Other rights may be limited and may even be withdrawn and then granted again, but their ultimate limit is to be found in the preservation of the right to life. Right to life is the essential content of all rights under the Constitution. If life is taken away, all other rights cease to exist. (Emphasis supplied) Thus, from the above decision it is apparent that right to life is the most fundamental of all rights and capital punishment, which aims at taking away life irretrievably, being the gravest punishment, should be passed in a case so exceptional that it comes in the category of 'rarest of rare case' where punishment of life imprisonment is inadequate. (b) Life imprisonment is a rule and death punishment is an exception : The rarest of rare dictum breathes life into Sub Section 3 of Section 354 of Cr.P.C. and serves as a guideline for compliance of Section 354 (3) and entrenches the policy that life imprisonment is the rule and death punishment is an exception, which should be passed in cases strictly identified and placed in the rarest of rare category. (c) Extraordinary burden on the court : It is a settled law of interpretation that exceptions are to be construed narrowly. It is a golden rule of interpretation that exceptions are to be interpreted strictly and that being the case, the rarest of rare dictum places an extraordinary burden on the court. it is the prime duty of the sentencing court as well as the appellate court to interpret strictly the exception. This is an extraordinary burden upon the court to decise as to whether the case in hand is falling within exception or within the rule. (d ) Conclusion drawn from comparison between mitigating and aggravating circumstances : A conclusion as to 'rarest of rare aspect' with respect to a matter shall entail identification of aggravating and mitigating circumstances relating to both crime and the criminal, such as the probability that the accused can be reformed and rehabilitated (e) Alternative option being unquestionably foreclosed : Hints at the difference between death punishment and the alternative punishment of life imprisonment and suggests selection of death punishment as 23 the penalty of last resort when, alternative punishment of life imprisonment will just not suffice in the facts of the case and will be futile and will serve no purpose. To reach to a conclusion as to whether the alternative option is foreclosed, the balance has to be struck by the court in the light of the mitigating circumstances. For awarding death sentence, the test is not as to whether there is presence of greater number of aggravating circumstances, but whether mitigating circumstances were present or not. A death sentence can be awarded only in case alternative option is foreclosed and if there are chances of rehabilitation, death sentence should be avoided. Following has been held regarding alternative option being foreclosed by the Hon'ble Supreme Court in the case of Panchhi vs. State of U.P. reported in (1998) 7 SCC 177:
"6. When the Constitution Bench of this Court, by a majority, upheld the constitutional validity of death sentence in Bachan Singh v. State of Punjab this Court took particular care to say that death sentence shall not normally be awarded for the offence of murder and that it must be confined to the rarest of rare cases when the alternative option is foreclosed. In other words, the Constitution Bench did not find death sentence valid in all cases except in the aforesaid freaks wherein the lesser sentence would be, by any account, wholly inadequate. In Machhi Singh v. State of Punjab a three-Judge Bench of this Court while following the ratio in Bachan Singh case laid down certain guidelines among which the following is relevant in the present case:(Machhi Singh case, SCCp489, para
38) "(iv) 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.'" (Emphasis supplied) 49. Principled Sentencing : The courts have interpreted the rarest of rare dictum laid down in Bachan Singh case in various ways and it is found that principled application of the rarest of rare dictum does not come in the way of individualised sentencing”
50. It has been held by the Hon'ble Supreme Court In Bachan Singh v. State of Punjab, reported in (1980) 2 SCC 68.at paragraph 197 as under:
197. In Jagmohan, this Court had held that this sentencing discretion is to be exercised judicially on well- recognised principles, after balancing all the aggravating and mitigating circumstances of the crime. By 'well-recognised principles' the court obviously meant the principles crystallised by judicial decisions illustrating as to what were regarded as aggravating or mitigating circumstances in those cases, (emphasis supplied) The legislative changes since Jagmohan-as we have discussed already- do not have the effect of abrogating or nullifying those principles. The only effect is that the application of those principles is now to be guided by the paramount beacons of legislative policy discernible from Sections 354 (3) and 235(2), namely: (1) The extreme penalty can be inflicted only (emphasis in original) in gravest cases of extreme culpability;(2) In making choice of the sentence, in addition to the circumstances, of the offence, due regard must be paid to the circumstances of the offender, also. (Emphasis supplied) As per the aforesaid decision, by well-recognised principles' the court obviously meant the principles crystallised by judicial decisions illustrating as to what were regarded as aggravating or mitigating circumstances in those cases and a court, whether trial or appellate for that matter, while exercising its judicial discretion in deciding as to whether a case is so exceptional as to fall in the rarest of rare category, will be guided by the principles crystallised by judicial decisions.
51. Cry of the society : Brutality of a murder may shock the collective conscience of society but at the time of final decision dispassionate analysis may be given primacy over sentiments and emotions and cry of the society can not be the sole justification in the matter of death sentence as has been held by the Hon'ble Supreme Court in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, reported in 2009 (6) 532 at para 72:
72. We must also point out, in this context, that there is no consensus in the Court on the use of social necessity 25 as a sole justification in death punishment matters. The test which emanates from Bachan Singh in clear terms is that the courts must engage in an analysis of aggravating and mitigating circumstances with an open mind, relating both to crime and the criminal, irrespective of the gravity or nature of crime under consideration. A dispassionate analysis, on the aforementioned counts, is a must. The courts while adjudging on life and death must ensure that rigour and fairness are given primacy over sentiments and emotions. (Emphasis supplied) 52. Therefore, the guideline, emerging from what has been discussed above, for determination of the quantum of punishment, requires that the court, as bound by the spirit of Article 21, shall exercise judicial discretion on well recognised principles to identify as to whether the case falls in the rarest of rare category. In doing so the court shall give dispassionate analysis primacy over cry of the society and by striking a just balance between the mitigating and aggravating circumstances (with due weigtage to mitigating circumstances) it will be determined as to whether there exists a chance of rehabilitation of the accused. Further the court will keep in mind that life imprisonment is the rule and death punishment is an exception and the exceptions are to be interpreted strictly. The matter of further consideration is that whether the alternative option (punishment of life inprisonment) is unquestionably foreclosed or not and the court shall, as death penalty is the last resort, in compliance of the provisions of Sub-Section 3 of Section 354 of the Code of Criminal Procedure,, will assign special reasons for such sentence, in the case of sentence of death.
53. In the light of what has been noted above, the moot point for consideration before this court is as to whether this case is falling within the rarest of rare category.:
53. Now, considering the facts of the present case in the background of the relevant decisions or well recognised principles and observations made on the aggravating and mitigating circumstances, we may turn to the issue of striking a just balance between the mitigating and aggravating circumstances in the present case. (i) Mitigating circumstance No. 1 - Evidence on record suggests that the present appellant was in love with the deceased. It might have 26 been a one sided love affair but, as stated by P.W. 10, deceased and the accused appellant were in talking terms. Marriage card of the deceased has also been brought on record and has been given a Exhibit number. The marriage of the deceased was to be solemnized on 27th May, 2011. Thus, it appears that due to extreme emotional disturbance or frustration the appellant has committed murder of the deceased. Therefore, keeping in mind the deposition of prosecution witnesses, especially close relatives of the deceased, presence of mitigating circumstance no.1, as enumerated in Bachan Singh case, cannot be denied in the facts of the present case. (ii) Mitigating circumstance No. 2 : So far as mitigating circumstance no. 2 is concerned, which is age of the accused appellant, from the evidence on record, it appears that age of the accused is approximately 22 years as on the date of offence. Thus, he is quite young as on the date of offence and therefore, presence of mitigating circumstance no. 2 cannot be denied (iii) Mitigating Circumstance No. 3 : Further, prosecution has also failed to prove or bring on record, any antecedent of the appellant accused, who is a young boy, pursuing his studies in Diploma in Engineering. The murder has taken place out of extreme mental disturbance and frustration and the State has also failed to prove that there is all chances of repetition of such type of offences by the appellant. Thus, presence of Mitigating Circumstance No. 3 cannot be denied by the State. (iv) Mitigating Circumstance No. 4 : Thus, these facts cannot be denied that the accused appellant, who is a young boy without any criminal antecedent, is pursuing his studies of Diploma in Engineering and has committed the offence due to extreme emotional disturbance and further the State has also failed to prove that there is all chances of repetition of such type of offence by the appellant accused. Therefore, there are all chances of rehabilitation of the appellant, especially keeping in mind the young age, absence of any antecedent and the fact that the whole incident has taken place due to acute mental disturbance as the appellant was in love with the deceased.
54. In view of aforesaid facts and circumstances and in the light of the fact that the State has miserably failed to prove the absence of Mitigating Circumstance No. 3 and 4, as mandated by the Hon'ble Supreme Court in the case of (Bachan Singh v. State of Punjab, reported in (1980) 2 SCC 750.27 para 260), we are not inclined to confirm the death sentence awarded to the appellant by the trial court.
55. It has been pointed out by the learned A.P.P. appearing for the State that it is a brutal murder committed in broad day light in presence of several persons at St. Xavier college.
56. In this context, it is to be noted that Brutality alone is not sufficient to award death sentence. In a sense every murder is brutal and every crime of murder is cruelty. By brutality itself the case will not fall within the rarest of rare dictum as it has been held by the Hon'ble Supreme court in the case of Panchhi v. State of U.P., reported in (1998) 7 SCC 17.......Brutality of the manner in which a murder was perpetrated may be a ground but not the sole criterion for judging whether the case is one of the 'rarest of rare cases' as indicated in Bachhan Singh case. In a way, every murder is brutal, and the difference between one from the other may be on account of mitigating or aggravating features surrounding the murder. (Emphasis supplied) 57. Since every murder is brutal, the distinguishing factors should be the mitigating or aggravating features surrounding the murder. It has been held in Bachan Singh case in paragraph no. 207 as under:
207. We will do no more than to say that these are undoubtedly relevant circumstances and must be given great weight in the determination of sentence.
58. It has been held by the Hon'ble Supreme Court that primacy is to be given to the mitigating circumstances, especially in the light of the decision in the case of Vashram Narshibhai Rajpara v. State of Gujarat reported in (2002) 9 SCC 168(10), which reads as under:
10. Considering the facts of the case presented before us, it is on evidence that despite his economic condition and earnest attempt to purchase a house for the family after raising loans, the wife and daughters were stated to be not pleased and were engaging in quarrels constantly with the appellant. Though they were all living together the continuous harassment and constant nagging could have very well affected his mental balance 28 and such sustained provocation could have very well affected his mental balance and such sustained provocation could have reached a boiling point resulting in the dastardly act. As noticed even by the High Court the appellant though hailing from a poor family had no criminal background and it could not be reasonably postulated that he will not get rehabilitated or that he would be a menace to the society. The boy of tender age would also once for all be deprived of the parental protection. Keeping in view all these aspects, in our view, it could not be said that the imposition of life imprisonment would not be adequately meet the requirements of the case or that only an imposition of the extreme punishment alone would do real or effective justice. Consequently, we direct the modification of the sentence of death into one of rigorous imprisonment for life, by partly allowing the appeal to that extent. In other respects the appeal shall stand dismissed. The appellant shall undergo the remaining period of sentence as above. (Emphasis supplied) 59. Similarly, it has been held by the Hon'ble Supreme Court in the case of Om Prakash v. State of Haryana reported in 1999 (3) SCC 9.that though cry of the society is to be responded by the court, but the requirements as stated by Bachan Singh case, i.e. dictum of balancing the mitigating and aggravating circumstances is to be considered by the court because the sentencing court is bound by the principle enunciated in the Bachhan Singh case and not in specific terms to incoherent and fluid responses of the society.
60. It has been held by the Hon'ble Supreme Court in the case of Dharmendrasinh v. State of Gujarat reported in (2002) 4 SCC 679.paragraph 21 as under:
"1. Now considering facts of the present case in the background of our observations made in the preceding paragraph, we take note of the fact that the appellant had been labouring under the strain of suspecting the character of his wife. This fact is mentioned by none else but by the complainant Ashaben herself in her report. She also admitted in her statement in the court that quite often there had been quarrel between the two on that count. Though denied, a suggestion has been made to PW3 Ashaben in her cross examination that the appellant had been telling her that 29 their sons were not born of him. It is true that there does not seem to be any immediate cause before the commission of offence, yet the fact remains that rightly or wrongly, such a painful belief was being entertained by the appellant since long which constantly engaged his mind as admittedly there had been quarrels on that count between the two. Obviously he would have been brooding under that idea, which perhaps he could not contain any more. It is true that two innocent children lost their lives for no fault of theirs. We also notice that dharia is a weapon, which is ordinarily to be found in the house of any farmer or agriculturist in that area as stated by PW3. He seems to have used the weapon as lying in the house. The offence was obviously not committed for lust of power or otherwise or with a view to grab any property nor in pursuance of any organised criminal or anti-social activity. Chances of repetition of such criminal acts at his hands making the society further vulnerable are also not apparent. He had no previous record." (Emphasis supplied) 61. In the aforesaid case the court has acknowledged that the crime committed was no doubt heinous and unpardonable and two innocent children lost their lives for no fault of theirs, but court has to look at the mitigating circumstances. The offence is obviously not committed out of lust of power or to grab the property or in pursuance of any organized crime or anti social activity and there was no previous criminal record in that case. Chances of repetition of such criminal act at the hands of the accused making the society further vulnerable are also not apparent.
62. Such chances are also not present in the present case and therefore, we are not inclined to confirm the sentence of death awarded by the trial court. Thus, by the virtue of this judgment some more criteria have been added, i.e. the murder, if not committed for lust of power or otherwise or with a view to grab property or if not committed as organised criminal or anti social activity, the case will not fall within the purview of rarest of rare case. Aggravating circumstances 63. Counsel for the State has pointed out that out of 13 aggravating circumstances, present case has the ingredient of circumstance number 12 and 13 and pointed out that firstly this is a premeditated, cold blooded murder 30 without provocation and secondly the crime committed was so brutal that it pricks not only the judicial conscience but even the conscience of the society. Presence of these two circumstance in the case in hand have been highlighted by the A.P.P. as the grounds on which death sentence may be confirmed by this Court.
64. We are not accepting this contention because mere presence of these two circumstances are not sufficient and the court has to see also that any of the mitigating circumstances is present or not. Otherwise, as stated herein above, every murder is brutal and every crime of murder is cruel and it will always shock the conscience of the society, but that is not sufficient. As stated herein above, the main or key factor that has to be appreciated by the court for awarding or otherwise the death sentence is to see whether alternative option is foreclosed or not and the alternative option is punishment of life imprisonment in case there is any chance that the accused can be rehabilitated. Keeping in mind the young age of the accused, absence of antecedent and the fact that the whole offence has been committed due to extreme mental disturbance or frustration, this court considers that there are enough chances of rehabilitation of the accused and the case is not falling in the category of 'rarest of rare' cases.
65. It has been held by the Hon'ble Supreme Court in the case of Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashrtra, reported in (2009) 6 SCC 49.in paragraph 157, 158, 159, 169 and 170 as under:
157. The doctrine of proportionality, which appears to be the premise whereupon the learned trial judge as also the High Court laid its foundation for awarding death penalty on the appellant herein, provides for justifiable reasoning for awarding death penalty. However, while imposing any sentence on the accused the court must also keep in mind the doctrine of rehabilitation. This considering Section 354 (3) of the Code, is especially so in the cases where the court is to determine whether the case at hand falls within the rarest of the rare case.
158. The reason assigned by the courts below, in our opinion, do not satisfy Bachan Singh test. Section 354 (3) of the Code provides for an exception. General rule of doctrine of proportionality, therefore, would not apply. We must read the said provision in the light of Article 21 of the Constitution of India. Law laid down by Bachan Singh and Machhi Singh interpreting Sectio”
354. 3) of the Code should be taken to be a part of our constitutional scheme.
159. Although the Constitutional Bench judgment of the Supreme Court in Bachan Singh did not lay down any guidelines on determining which cases fall within the rarest of rare category, yet the mitigating circumstances listed in and endorsed by the judgment given reform and rehabilitation great importance, even requiring the State to prove that this would not be possible, as a precondition before the court awarded a death sentence. We cannot therefore determine punishment on grounds of proportionality alone. There is nothing before us that shows that the appellant cannot reform and be rehabilitated.
169. The accused persons were not criminals. They were friends. The deceased was said to have been selected because his father is rich. The motive, if any, was to collect money. They were not professional killers. They have no criminal history. All were unemployed and were searching for jobs. Further, if age of the accused was a relevant factor for the High Court for not imposing death penalty on Accused 2 and 3, the same standard should have been applied to the case of appellant also who has only two years older and still a young man in age. Accused 2 and 3 were as much a part of the crime as the appellant. Though it is true, that it was he who allegedly proposed the idea of kidnapping, but at the same time, it must not be forgotten that the said plan was only executed when all the persons involved gave their consent thereto.
170. It must be noted that the discretion given to the court in such cases assumes onerous importance and its exercise becomes extremely different because of the irrevocable character of death penalty. One of the principles which we think is clear is that (sic if) the case is such where two views ordinarily could be taken, imposition of death sentence would not be appropriate, but where there is no other option and it is shown that reformation is not possible (Emphasis supplied) 66. In view of the aforesaid decision also and after making a comparison 32 between the aggravating circumstances and mitigating circumstances in the facts of the present case, we are of the opinion that mitigating circumstances outweighs the aggravating circumstances and therefore, we are not inclined to confirm the sentence of death awarded by the trial court.
67. learned counsel for the appellant submitted that death sentence awarded to the appellant accused should not be confirmed by this court in the light of the principle laid down by the Hon'ble Supreme Court in Ramnaresh & Others v. State of Chhattisgarh reported in (2012) 4 SCC 257.especially in paragraph no. 88 :
88. While we cumulatively examine the various principles and apply them to the facts of the present case, it appears to us that the age of the accused, possibility of the death of the deceased occurring accidentally and the possibility of the accused reforming themselves, they cannot be termed as social menace. It is unfortunate but a hard fact that all these accused have committed a heinous and inhumane crime for satisfaction of their lust, but it cannot be held with certainty that this case falls in the ratest of rare cases. On appreciation of the evidence on record and keeping the facts and circumstances of the case in mind, we are unable to hold that any other sentence but death would be inadequate. (Emphasis supplied) 68. In view of this aforesaid decision also, keeping in mind the aggravating and mitigating circumstances emerging out of the evidences on record, we are not inclined to confirm the sentence of death awarded to the present appellant accused.
69. We have also perused the reasons given by the learned trial court for awarding the sentence of death. It appears that the learned trial court has solely relied upon the decision rendered by the Hon'ble Supreme Court in the case of Machhi Singh vs. State of Punjab reported in (1983) 3 SCC 47.and especially only the aggravating circumstances, but as stated herein above, as per principle enunciated by the Constitution Bench decision in Bachan Singh's case the sentencing court as well as the appellate court has to appreciate both aggravating as well as mitigating circumstances as stated herein above.
70. Several mitigating circumstances are present in the case of the 33 present appellant accused based on evidence on record. The terms like 'pre planned cold blooded murder' or 'cruel murder' per se, will not bring the case in the exception. Supreme Court has held that primacy is to be given to the mitigating circumstances because the death sentence stands in a very different footing from all other type of punishment.
71. Now, the question before this Court is regarding life imprisonment of fixed term, i.e. more than 14 years.
72. Counsel appearing for the State has heavily relied upon the decision rendered by the Hon'ble Supreme Court in the case of Swamy Shraddnanda (2) v. State of Karnataka reported in (2008) 13 SCC 767.especially paragraph 84 and 94:
84. To the question whether any specific orders are passed by the Government to commute the sentence of life imprisonment to imprisonment for 20 years or less, the answer is given in the note, as follows: In addition to what is stated in Para 3.1, it may be added that cases of life imprisonment pass through the Advisory Board and their recommendations are examined by the Head of the Department viz. Additional Director General of Police and Inspector General of Prisons who later forwards them to the Government for passing final orders. That is how the sentence of life imprisonment is commuted for a term of 20 years or less as per provisions of Section 54 and 55 IPC and Section 433-A Cr.P.C. It is further stated in the note as follows: Experience shows that in respect of life convicts an assumption can be made that the total sentence is 20 years and if the convict earns all categories of remissions in the normal course it may come to 6 years which is less than one-third of 20 years. This is also in consonance with Order 214(c) of the Prison Mannual which for the purposes of the Rules deems a sentence of imprisonment for life to be a sentence of imprisonment for twenty years.
94. In the light of the discussions made above we are clearly of the view that there is a good and strong basis for the 34 Court to substitute a death sentence by life imprisonment or by a term in excess of fourteen years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order, as the case may be. In the aforesaid decision, Hon'ble Supreme Court has held that considering the gravity of the offence, appellant accused may be sentenced to undergo imprisonment for life, but he may not be released earlier within 20 years. Counsel for the State has also relied upon the decision rendered by the Hon'ble Supreme Court in the case of Ramnaresh & Ors. v. State of Chhattisgarh reported in (2012) 4 SCC 257.especially at paragraph 88 and 89 as under:
88. While we cumulatively examine the various principles and apply them to the facts of the present case, it appears to us that the age of the accused, possibility of the death of the deceased occurring accidently and the possibility of the accused reforming themselves, they cannot be termed as social menace. It is unfortunate but a hard fact that all these accused have committed a heinous and inhumane crime for satisfaction of their lust, but it cannot be held with certainty that this case falls in the rarest of rare cases. On appreciation of the evidence on record and keeping the facts and circumstances of the case in mind, we are unable to hold that any other sentence but death would be inadequate.
89. Accordingly, while commuting the sentence of death to that of life imprisonment (21*years), we partially allow their appeal only with regard to the quantum of sentence.
73. In the aforesaid decision Hon'ble Supreme Court has held that appellant may be sentenced to undergo imprisonment for life for minimum more than 20 years.
74. In view of the decisions rendered by the Hon'ble Supreme Court as stated above and considering the facts and circumstances of the case and keeping in mind the evidence and also taking note of fact that appellant is of approximately 22 years of age as on the date of the offence and was also 35 pursuing his studies and there are no antecedent and the whole incident has taken place out of extreme emotional disturbance or frustration and, as stated herein above, that there are all chances of rehabilitation of the appellant, we, hereby, impose, instead of death sentence, the punishment of life imprisonment.
75. Accordingly, while commuting the sentence of death to that of life imprisonment, we partially allow the appeal only with regard to the quantum of sentence. The appellant shall serve out the sentence of imprisonment for life.
76. The Death reference is answered in negative.
77. We took notice of the exhaustive investigation carried out by the investigating officer in the present case as in general, in the State of Jharkhand, we have come across such type of accurate and scientific investigation in very few cases . We hope that in other cases also investigation be carried out with equal degree of accuracy. A copy of this order will be sent to the Director General of Police and Secretary, Department of Home, Govt. of Jharkhand. (D.N. Patel, J.) (Prashant Kumar, J.) Jharkhand High Court, Ranchi Dated 6th September, 2012 s.m./ N.A.F.R.