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ADDITIONAL REGISTRAR GENERAL, HIGH COURT OF KARNATAKA, KALABURGI V/S BASAVARAJ @ BASYA & OTHERS, decided on Tuesday, July 5, 2016.
[ In the High Court of Karnataka Circuit Bench OF Kalaburagi, Criminal Reference Case No. 51 of 2012 c/w Criminal Appeal No. 3687 of 2012. ] 05/07/2016
Judge(s) : ANAND BYRAREDDY & L. NARAYANA SWAMY
Advocate(s) : K.R. Keshavamurthy, Additional State Public Prosecutor, Prakash Yeli, Additional State Public Prosecutor, Shivanand N. Pattanshetty.
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  "2016 ILR (Kar) 3799"  ==   ""  







    (Prayers: This Criminal Reference Case is filed under Section 366 of Code of Criminal Procedure for confirmation of death sentence awarded to accused 1) Basavaraj @ Basya 2) Palya 3) Yankappa 4) Ramesh @ Ramya by the judgment and order dated 3.10.2012 passed by the District and Sessions Judge Yadgir in S.C. No.48/2010.This Criminal Appeal is filed Under Section 374 (2) of Code of Criminal Procedure 1973 praying to set aside the Judgment of conviction dated 03.10.2012 passed by the District and Sessions Judge Yadigir in S.C.No.48/2010 convicting the accused/appellant punishable under Sections 120-B 396 397 and 302 read with 34 of Indian Penal Code 1860 and 201 read with 34 Indian Penal Code 1860 and under Section 98 of Karnataka Police Act 1963.)Anand Byrareddy J.1. The reference by the court below as well as the appeal preferred against the judgment of the court below are heard and considered together.2. The case of the prosecution was that the Police Sub-Inspector Saidapur Police Station of Yadgir District as on 14.2.2009 at about 11.45 p.m. is said to have received information of multiple murders in Gondadagi village. He had immediately proceeded there along with his staff and found one Suryakanthamma lying near a shed where she lived with injuries. He had immediately arranged for the said victim to be shifted to Raichur Government Hospital for treatment and thereafter had proceeded to record the statement of one Srinivas who was present at the spot. The said statement was treated as the complaint.According to Srinivas he was working as a coolie since one year in the land belonging to one Sharanappagouda which was adjacent to the land of Basavarajappagouda who was the elder brother of Sharanappagouda. It was stated that a relative of Basavarajappagouda namely Basannagouda was working as a Supervisor and Suryakanthamma and her two sons namely Shivareddy and Seenu were employed as coolies.It was further stated that on 14.2.2009 at about 9.30 p.m when the complainant was in his shed watching television Basannagouda is said to have joined him. Basannagouda is said to have left at about 11 p.m. to sleep in his own shed. Thereafter he had heard commotion from the land of Basavarajappagouda and the complainant had gone there to investigate and found that Basannagouda had been murdered and he was lying on a cot that was outside the shed. The complainant who continued to hear the commotion from within the shed hid himself in the dark and looked into the shed and he heard people conversing in Telugu language and thereafter he saw a blaze inside the shed and he saw three persons coming out of the shed wearing vests and shorts. They were speaking in Telugu and went away in a hurry.The complainant thereafter had gone into the shed and saw Suryakanthamma lying on the floor with severe injuries and he also saw the bodies of Shivareddy and Srinivasreddy who were apparently murdered in a brutal manner and that their bodies were burning as the same had been set on fire. The complainant who was struck with terror immediately ran to Basavarajappagouda in order to inform him but since he was not there he had informed his wife Nirmalamma who in turn had contacted Basavarajappagouda on his cell phone and it is thereafter that the complainant had gathered other villagers namely Nagappa Ambiger and Bannayya and went back to the spot and saw more closely that Basavannagouda was dead and also the bodies of Shivareddy and Srinivasreddy which had been burnt.It is the complainant’s statement that Suryakanthamma had narrated the manner in which the assailants had come and attacked them. On the basis of this complaint a case was registered for offences punishable under Sections 302 201 307 read with section 34 of the IPC and a First Information Report was drawn.After further proceedings and investigation and after recording the statement of Suryakanthamma at the hospital it is claimed that Suryakanthamma was shown photographs of certain suspects by the Circle Inspector and she had identified the photo of Palya accused no.2. It is stated that he was a member of the ‘Chigarikara’ group and therefore on the basis of that information accused nos. 1 to 4 were apprehended at Siddapur village and it is claimed that they had made voluntary statements of having committed offences. On their interrogation and on the basis of the information provided by the accused it transpires that recoveries were made namely of cash of Rs.13 800/- 104 grams of gold and silver ornaments a cell phone three daggers and the clothes used by the accused when committing the offences. An axe was also seized on the basis of the voluntary statement of accused no.2. These articles are said to have been sent to the Forensic Science Laboratory Gulbarga.Incidentally the Investigating Officer is said to have suspected the involvement of one Meghanath a Head Constable working at Saidapura Police station to have masterminded the acts of accused nos.1 to 4 and he was arraigned as accused no.5 in the very case. Thereafter the investigating officer having been transferred investigation was handed over to another officer Shri Lokesh PW.24 who in turn had conducted a test identification parade after obtaining permission of the court. In this fashion investigation having been completed on receipt of the necessary reports and recording of statements and a charge sheet having been filed the Court of the Magistrate had committed the case to the Sessions Court and charges having been framed by the court below the accused pleaded not guilty and claimed to be tried.The prosecution had then examined 26 witnesses and got marked several exhibits and material objects and thereafter the court having recorded the statement of the accused under Section 313 of the Code of Criminal Procedure 1973 the court below had framed the following points for its consideration:“1. Whether the prosecution proves that the death of deceased Basanagouda Srinivas and Shivareddy occurred on 14.2.2009 at night 11-00 p.m. at Gondadagi village are homicidal death?2. Whether the prosecution proves beyond reasonable doubt that all the accused made criminal conspiracy to commit robbery/dacoity in the shed belonging to Basavarajappagouda situated at village Gondadagi village and thereby committed the offence punishable under section 120-B read with 149 of IPC?3. Whether the prosecution proves beyond reasonable doubt that on 14.2.2009 at night 11-00 p.m. accused no.1 to 4 in the process of committing robbery/dacoity in the shed situated at village Gondadagi village first committed murder of Basanagouda by assaulting him with axe and daggers and then by lurking the door of the shed entered inside and committed murder of Srinivas @ Seenu and Shivareddy by assaulting them with said weapons and set them on fire and thereby committed the offence punishable under section 396 read with section 149 of the IPC?4. Whether the prosecution proves beyond reasonable doubt that on the above said date time and place accused no. 1 to 4 in the process of committing robbery/dacoity attempted on the life of Suryakantamma (CW.12) by assaulting her with deadly weapons and snatched from her cash of Rs.2 500/- and golden ornaments and thereby committed the offence punishable under section 397 read with 149 of the IPC?5. Whether the prosecution proves beyond reasonable doubt that on the above said date time and place accused Nos.1 to 4 first committed murder of Basanagouda who was sleeping on the cot by assaulting him with axe and daggers and then by lurking the door of the shed entered inside and committed murder of Srinvias @ Seenu and Shivareddy by assaulting with deadly weapons and set them on fire and thereby committed the offence punishable under section 302 read with 149 of the IPC?6. Whether the prosecution proves beyond reasonable doubt that on the above said date time and place accused Nos.1 to 4 in order to screen from the offence of commission of murder set on fire the dead body of Srinivas @ Seenu and Shivareddy and thereby committed the offence punishable under section 201 read with 149 of the IPC?7. Whether the prosecution proves beyond reasonable doubt that on the above said date time and place accused Nos.1 to 4 found in possession of Rs.13 800/- and articles shown in Sl.No.7 to 18 of Property Register for which they have not produced relevant records for possession of the same and thereby committed the offence punishable under section 98 of the Karnataka Police Act?8. Whether the prosecution proves beyond reasonable doubt that accused No.5 abetted/instigated accused nos.1 to 4 to commit robbery/dacoity and murder in the shed situated at village Gondadagi village and thereby committed the offence punishable under section 109 read with 149 of the IPC?”The court below has answered the above points in the affirmative except point no.2 which was held in the negative and convicted accused nos.1 to 4 for offences alleged and sentenced them to death apart from awarding other punishment for other offences for which they had been charged and had thereafter referred the matter for confirmation of the death sentence imposed against accused nos.1 to 4. Accused no.5 was acquitted.It is that judgment which is under challenge in the present appeal and reference has also arisen as stated above out of the said judgment.3. Heard the learned counsel for the appellants and the learned Special Public Prosecutor.4. The learned counsel for the appellants has urged several grounds questioning the judgment of the court below. However these were the very contentions urged in defence before the trial court and are only a magnification of the same. It is urged that the Test Identification Parade in identifying the accused was conducted after an inordinate delay which is not sought to be explained by the prosecution and the trial court having mechanically accepted the report on the Test Identification Parade would cast a serious doubt about the very identity of the accused who had been apprehended on mere suspicion. In that though the appellants were arrested on 27.2.2009 the Test Identification parade was conducted on 25.3.2009. This serious infirmity has been overlooked by the trial court. Apparently the accused were strangers to PW.7 the alleged injured witness and the lead on which the accused are said to have been arrested is by the identification of the photograph of several suspects shown by the Investigating Officer to PW.7 and she having recognised accused no.2 is ultimately said to have resulted in the Investigating Officer arresting accused no.2 as well as the other accused.The alleged recovery of incriminating objects has not at all been supported by the panch witnesses. As for instance PW.13 has not supported the case of the prosecution insofar as the recovery of Exhibit P.12 and similarly PW.12 has not supported the case of the prosecution in respect of recovery of Exhibit P.8. So also PW.18. It is further contended that it is significant that the defence had got marked portions of the statements of material witnesses to demonstrate that there were contradictions as per Exhibits D.1 to D.14 which has been totally ignored and has not been discussed by the trial court and thereby vitiating the judgment. It is also contended that even if the case of the prosecution stood established as found by the court below it could not be said that the case could be considered as falling in the group of rarest of rare cases warranting the award of capital punishment. The trial court has completely ignored the settled principles of law and the emerging trends in awarding the death punishment especially when accused nos.2 and 4 were young men aged 22 and 18 respectively and there always remaining an element of doubt as to their actual involvement and commission of the crime. The trial court has not taken a balanced view and has completely ignored the mitigating circumstances in awarding such capital punishment.It is in this vein that the learned counsel for the appellants has taken us through the record in meticulous detail to demonstrate that the findings are arrived at on a selective reading of the evidence while ignoring the contradictions and inconsistencies in the case of the prosecution. Therefore the learned counsel for the appellants seeks acquittal of the accused or atleast in the alternative a lesser sentence of punishment given the circumstances of the case.5. On the other hand the learned State Public Prosecutor has sought to justify the judgment of the trial court and has pointed out that the prosecution had proved the guilt of the accused beyond all reasonable doubt from the evidence of PW.6 Srinivas and PW.7 Suryakanthamma who are eye witnesses as well as the evidence of PW.10.PW.7 Suryakanthamma was an injured eye witness and was the mother of the deceased Srinivasreddy and Shivareddy. PW.6 and PW.7 had both identified accused nos.1 to 4. The evidence of the aforesaid witnesses coupled with the circumstantial evidence would indicate that the guilt of the accused has certainly been proved. And further the Test Identification Parade conducted by the Tahsildar PW.25 corroborated the evidence of PW.6 PW.7 and PW.10. The identity of the accused has been firmly established. PW.10 was the person whom accused no.1 to 4 had visited in the night and had asked to borrow his motor cycle which he had declined and the accused having damaged his motor cycle out of sheer spite had clearly identified the accused. The medical evidence of Pws.19 and 20 corroborated the evidence of the direct witnesses and hence the contentions on behalf of the appellants that there are omissions contradictions and inconsistencies pale into insignificance when the evidence of the above said witnesses was sufficient to bring home the charges against the accused.Insofar as the contention that the present case on hand would not fall in the category of rarest of rare cases is also a self serving contention. There is no hard and fast rule as to the exercise of discretion of the court in awarding the death sentence and it would certainly depend on the facts and circumstances of the case. In the present case on hand three men had been slaughtered to death when they were asleep and two of them were burnt after they were killed. PW.7 Suryakanthamma had witnessed the slaughter of her two sons and when she had tried to intervene she was mercilessly attacked with deadly weapons and was almost killed and has barely survived. The killings were merciless and systematic. In that all the victims were immobilised by amputating their legs and thereafter being struck on all vital parts of their body bringing about instantaneous death with great suffering and thereafter having burnt the bodies of the sons of PW.7 indicates a gruesome and barbarous act of the accused with no regard for human life and the expectation that they could be reformed is a misconception.Accused no.1 is now aged 51 years and accused no.3 is aged 56 and accused no.2 would almost be 30 years and accused no.4 would be 25 years old.Given the cruelty with which the accused have acted it is difficult to fathom that there is any sense of remorse in them which would require the court to take the risk of possible reformation of the accused and therefore seeks that the judgment of the trial court be confirmed and the death sentence also be confirmed.The learned State Public Prosecutor places reliance on a large number of decisions where the capital punishment awarded has been confirmed and also highlights the principles on which the court shall proceed.6. On a careful consideration of the rival contentions and a careful perusal of the record it is seen that the court below has firstly provided the gist of the evidence of the several witnesses and thereafter has analysed the same and has opined that PWs.6 and 7 were eye witnesses and PW.7 was the mother of Srinivasreddy and Shivareddy who were murdered inside the shed and that their evidence has not been impeached in cross-examination.In addressing the validity of the Test Identification Parade the court below has after noticing the objections raised as regards the manner in which the Test Identification Parade has been conducted after a delay observed that insofar as the delay of 27 days in holding the Test Identification Parade from the date of arrest of the accused is concerned the Investigating Officer had filed an application seeking permission from the learned Magistrate on 20.3.2009 to conduct the Test Identification Parade but the Magistrate had dismissed the application as seen from the record. Thereafter the Investigating Officer had filed yet another application which was ultimately allowed on 23.3.2009. Therefore if there was any delay it could not be placed at the door of the Investigating Officer and the Test Identification Parade which is conducted by the Executive Magistrate also required him to prepare to hold the same by fixing the date and issuing notices to the witnesses independently and not through the medium of the Police and therefore these practical difficulties in holding the Test Identification Parade adequately had explained the delay and therefore it could not be said to be fatal as to the validity of the Test Identification Parade. The court below has observed that the Test Identification Parade as per Exhibit P.22 had been conducted in a proper manner and there was no indication of any ambiguity or manipulation.PW.25 who was the Tahsildar who had conducted the Test Identification Parade has been subjected to cross-examination as regards the procedure followed and there is no infirmity that has been unearthed insofar as the actual Test Identification Parade is concerned.Insofar as the manner of investigation and identification of the accused and their apprehension is concerned the trial court has taken note of the evidence of PW.26 the Investigating Officer who had carried out a major portion of the investigation as well as PW.24 who had succeeded as the Investigating Officer and who had actually filed the charge sheet and has concluded by noticing the following steps that were taken.In addressing the question whether the Investigating Officer in having traced accused nos.1 to 4 and the manner in which he has done so could be accepted the trial court has noticed that on 14.2.2009 he had received information about the incident and he had visited the spot at 1.30 a.m. by which time other police officers were already present and since it was late in the night nothing further could be done and therefore on the next day that is 15.2.2009 he is said to have conducted the inquest panchnama on the dead body of the deceased Basannagouda in the presence of panch witnesses which has been corroborated by the evidence of PW.11 one of the panch witnesses which is marked as Exhibit P.11 and thereafter he has recorded the statements of several witnesses two of whom were examined as PWs 8 and 9. He had then visited the Government Hospital at Raichur and recorded the statement of Suryakanthamma. He has seized the clothes worn by the three deceased and on 16.9.2009 he had continued his investigation. He had at that point of time recorded the statement of PW.10 according to whom about four persons had come to his house late in the night and requested him to lend his motor cycle as a young girl was bitten by a snake and that they had to take her to a hospital and since he had suspected the bona fides of the said persons he had stated that his motor cycle was out of order at which they had left after damaging his motor cycle and taking away hens which were in his house.Incidentally the investigating officer had shown the photographs of suspects to Suryakanthamma and she is said to have identified accused no.2 and therefore had continued investigation. On 27.2.2009 he had received information that there were some persons near the banks of Krishna river who are suspected to be criminals and he had immediately proceeded there and found accused nos.1 to 4 altogether and had arrested them.According to the investigating officer they were known to be habitual offenders and had committed dacoity and murder. It is on their voluntary statements that several incriminating materials had been recovered namely currency notes worth Rs.13 800/- 104 grams of gold silver ornaments a mobile phone 3 daggers and blood stained clothes apparently used in the commission of the offence. He had also recovered an axe which was thrown into water tank by accused no.2 on the basis of his statement. Some of the weapons used were blood stained which had been sent to the Forensic Science Laboratory and according to him there was material to indicate that Meghnath a Police constable was involved with the accused in masterminding the offences committed by them. This was revealed by accused no.2. Hence he was arrested and produced before the court. The said officer had been subjected to intense cross-examination attacking his bona fides particularly about suspension from his job and of facing criminal action under the Prevention of Corruption Act 1988 and he was accused of implicating accused no.5 with ulterior motives of false allegations but according to the court below he had withstood the cross-examination.In examining the veracity of the testimony of the eye-witnesses PW.10 Chandrashekar who was a witness spoke to the circumstantial situation that on 14.2.2009 he had been woken up by someone knocking the door but he had not opened the door but looked out of the window and he had seen four persons who informed that a snake had bitten a young girl and they require his motor cycle to take her to a hospital and that he had refused on the footing that his vehicle was not in order and they had left the place after damaging his motor cycle and taking away his hens and it is on the next day it is learnt that three persons were murdered. He had claimed that he could identify all the four accused but the court has found that from the report of the Test Identification Parade PW.10 had identified only accused no.1 and not others. This is elicited in the course of cross-examination. However identification of accused no.1 by the said witness has not been disbelieved by the court below.Thereafter the evidence of PW.6 Srinivas who had come to the spot from the neighbouring land after he heard commotion around 11 pm. on 14.2.2009 and he heard screams from the shed of Basanagouda and he immediately saw that Basanagouda who was sleeping outside the shed on a cot was already murdered and he looked into the shed as there was electricity light on in the shed and he had clearly identified accused no.2 who is said to have set fire to the dead bodies of Srinivasreddy and Shivareddy and others were seen holding deadly weapons such as daggers and an axe and since he was filled with terror he did not try to raise an alarm or try to intervene but merely witnessed the scene from outside the shed and he had then seen accused nos.1 to 4 come out of the shed and run away towards Gudur village. He had stated that he mustered the courage to enter the shed and saw two dead bodies which had been set ablaze and that Suryakanthamma was lying on the floor with injuries on her head and abdomen and she was profusely bleeding and she had been stripped of her saree and that it was thrown on to the burning bodies of Srinivasreddy and Shivareddy and that she was not in a position to talk. He immediately ran to the house of Basavarajappagouda and since he was not at home he had informed his wife who in turn contacted Basavarajappagouda on her cell phone. He had then brought Bannaiah and Nagappa to the spot and the police also arrived after some time and had recorded his statement. Suryakanthamma was shifted to Raichur hospital and thereafter he had been called upon to the Test Identification Parade where he had identified the accused. This witness had been extensively cross-examined and even recalled after he was discharged for further cross-examination to demonstrate that there was inconsistency in the evidence of the said witness and Suryakantamma who was examined as another eye witness. But it is found that no dent was made in his evidence except minor contradictions which have been noticed by the court below which were as follows:-PW-6 had stated that accused no.2 was seen setting fire to the dead bodies but PW.7 had stated that it was accused no.1 who did so. Further PW.6 had stated that accused no.2 was holding an axe but PW.7 had stated that it was accused no.1. These inconsistencies have been brushed aside by the court below as being trivial especially having regard to the gruesome incident where PW.7 was a witness to the slotter of her two sons and therefore this variance in the evidence of the two witnesses was insignificant as the witnesses are not expected to have a photographic memory of a scene unfolding which would strike temper and fear into any person.Insofar as the evidence of PW.7 is concerned she had stated that she and her sons were sleeping in the shed while Basanagouda was sleeping outside the shed on a cot and they had gone to bed after dinner at about 11 p.m. When someone had knocked at the door and suddenly the door was broken open with an axe and that four persons had entered the shed and since there was light inside the shed she could see and identify four persons who were wearing vests and shorts. She had identified the accused person in court as being those persons and she had described the accused holding particular weapons and it is stated that they claimed to be ‘naxalites’ and demanded money. When she had stated that she did not have any money they started indiscriminately attacking her two sons with their weapons who could not withstand the onslaught and were murdered on the spot She was in turn assaulted with an axe on the head and repeatedly stabbed in her stomach and chest. The injuries had left scars which were noticed by the trial court at the time of the witness tendering her evidence.Thereafter the accused had demanded gold and when she removed her ear ring from the right ear accused no.1 is said to have snatched the ear ring from her left ear thereby tearing her earlobe and this was also noticed by the court below in court. Thereafter they had stripped her of her saree. Similarly they had removed the clothes of her two sons and set fire to the dead bodies and left Suryakanthamma for dead as she was very badly injured and then they had snatched a sum of Rs.2 500/- which she had kept tied in her waist and then had left her for dead as she was very badly injured. All the while she had screamed for help which is how Srinivas PW.6 who was nearby was alerted and was able to witness the scene. She has narrated that she was thereafter called upon to the Test Identification Parade where she had identified the accused. The court below has accepted the eye-witness account of PW.7 without any reservation as it was seen from the photographs of the deceased that the legs of both Srinivasreddy and Shivareddy were amputated and thereafter they had been struck repeatedly with daggers and the axe all over their body and even the photograph was so shocking that the trial court has expressed that it “shocked the conscience of the court”. This being so and PW.7 who would have been traumatised and terrorised any inconsistency or discrepancy in her evidence could not be highlighted to discard the evidence. In any event there was no such major discrepancy or inconsistency. Therefore the court below has concluded that on the credible testimony of PW.7 and PW.6 and having regard to the fact that they have unerringly identified accused no.1 to 4 as being assailants any other inconsistency or discrepancy has been held to be overshadowed. It is in this vein that the court has found accused nos.1 to 4 guilty as alleged.Insofar as accused no.5 is concerned the court has found that there was no substance in the case put forward by the prosecution and has acquitted him.The State has not chosen to challenge that portion of the judgment.Therefore in the light of the above the finding of guilt by the court below of accused nos. 1 to 4 cannot be faulted. Accordingly the appeal in Crl.A 3687/2012 stands dismissed. The next question is whether the capital punishment awarded by the trial court has to be confirmed by this court. The trial court has held that the present case on hand would fall in the category of rarest of rare cases and therefore the said punishment was attracted.In this regard we may take note of a cross section of the cases decided by the apex court where the apex court was called upon to provide guidelines as to when it would be appropriate to award a death penalty and when it would be appropriate to dilute the punishment to imprisonment for life.In Gulab Sonba vs. State of Maharashtra 1971(3) SCC 931 a three judge bench of the apex court has held as follows:-“We do not think it necessary to lay down any law on the subject of awarding of death penalty and imprisonment for life. All that we can say is that both the sentences are legal and the courts have a fair discretion in the matter in the light of the circumstances existing in each case. We therefore proceed to decide the case on its own facts without laying down any law for future guidance.”Again in Raghubir Singh vs. State of Uttar Pradesh (1972)3 SCC 79 the apex court has observed thus:-“This takes us to the question of sentence. It may in this connection be pointed out that after the amendment of Section 367(5) Cr. P.C. by Act 26 of 1955 the discretion of the Court in deciding whether to impose the sentence of death or of imprisonment for life has become wider. The High Court when considering the question of sentence while disposing of the murder reference and the appeal does not seem to have paid proper attention to this aspect. In view of the peculiar facts and circumstances of this case we consider that the sentence of imprisonment for life would seem to meet the ends of justice and we accordingly reduce the sentence. The appeal thus succeeds in part.”In Ediga Anama vs. State of Andhra Pradesh (1974)4 SCC 443 the apex court has expressed its opinion and has provided the guidelines thus:“23. The final position as we see it is neither with the absolute abolitionist nor with the Mosaic retributions. It is relativist and humanist conditioned by the sense of justice and prevailing situation of the given society. In England men once believed it to be just that a thief should lose his life (as some Arab Chieftains do to-day) but the British have gone abolitionist now without regrets. In contemporary India the via media of legal deprivation of life being the exception and long deprivation of liberty the rule fits the social mood and realities and the direction of the penal and processual laws.24. While deterrence through threat of death may still be a promising strategy in some frightful areas of murderous crime to espouse a monolithic theory of its deterrent efficacy is unscientific and so we think it right to shift the emphasis to accept composite factors of penal strategy and not to put all the punitive eggs in the ‘hanging’ basket but hopefully to try the humane mix.25. We assume that a better world is one without legal knifing of life given propitious social changes. Even so to sublimate savagery in individual or society is a long experiment in spiritual chemistry where moral values socioeconomic conditions and legislative judgment have a role. Judicial activism can only be a signpost a weather vane no more. We think the penal direction in this jurisprudential journey points to life prison normally as against guillotine gas chamber electric chair firing squad or hangmen’s rope. ‘Thou shalt not kill’ is a slow commandment in law as in life addressed to citizens as well as to States in peace as in war. We make this survey to justify your general preference where s.302 keeps two options open and the question is of great moment.26. Let us crystallise the positive indicators against death sentence under Indian Law currently. Where the murderer is too young or too old the clemency of penal justice helps him. Where the offender suffers from socioeconomic psychic or penal compulsions insufficient to attract a legal exception or to downgrade the crime into a lesser one judicial commutation is permissible. Other general social pressures warranting judicial notice with an extenuating impact may in special cases induce the lesser penalty. Extraordinary features in the judicial process such as that the death sentence has hung over the head of the culprit excruciatingly long may persuade the court to be compassionate. Likewise if others involved in the crime and similarly situated have received the benefit of life imprisonment or if the offence is only constructive being under s. 302 read with s. 149 or again the accused has acted suddenly under another’s instigation without premeditation perhaps the court may humanely opt for life even like where a just cause or real suspicion of wifely infidelity pushed the criminal into the crime. On the other hand the weapons used and the manner of their use the horrendous features of the crime and hapless helpless state of the victim and the like steal the heart of the law for a sterner sentence.We cannot obviously feed into a judicial computer all such situations since they are astrological imponderable in an imperfect and undulating society. A legal policy on life or death cannot be left for ad hoc mood or individual predilection and so we have sought to objectify to the extent possible abandoning retributive ruthlessness amending the deterrent creed and accenting the trend against the extreme and irrevocable penalty of putting out life.27. Here the criminal’s social and personal factors are less harsh her feminity and youth her unbalanced sex and expulsion from the conjugal home and being the mother of a young boy-these individually inconclusive and cumulatively marginal facts and circumstances tend towards award of life imprisonment. We realise the speculative nature of the correlation between crime and punishment in this case as in many others and conscious of fallibility dilute the death penalty. The larger thought that quick punishment though only a life term is more deterrent than leisurely judicial death award with liberal interposition of executive clemency and that stricter checking on illicit weapons by the police deters better as social defense against murderous violence than an instant death sentence is not an extraneous component in a court verdict on form of punishment.”In Jai Kumar vs. State of M.P. (1999)5 SCC 1 it has again expressed thus:“13. Justice is supreme and justice ought to be beneficial for the society so that the society is placed in a better off situation. Law courts exist for the society and ought to rise up to the occasion to do the needful in the matter and as such ought to act in a manner so as to sub-serve the basic requirement of the society. It is a requirement of the society and the law must respond to its need. The greatest virtue of law is its flexibility and its adaptability it must change from time to time so that it answers the cry of the people the need of the hour and the order of the day. In the present day society crime is now considered a social problem and by reason therefore a tremendous change even conceptually is being seen in the legal horizon so far as the punishment is concerned.14. One school of thought on this score propagates the function of the law court is that of a social reformer and as such in its endeavour to act as such the question of deterring punishment would not arise since the society would otherwise be further prone to such violent acts or activities by reason of the fact that with the advancement of the age the mental frame of boys of tender age also go on changing and in the event of any arrogance being developed or a sense of revenge creeps the society the society would perish to the detriment of its people.15. The other school however expressly recorded and rather emphatically that unless severest of the severe punishments are inflicted on an offender (obviously depending upon the nature of the crime) the society would perish. The other school professes that since one has taken the life of another that does not mean that his life shall have to be taken but during the trial if it transpires the method and manner or the nature of the activities which has resulted in the elimination of a human being from this world there should not be any laxity on the part of the law courts otherwise people will and in turn the society will be engulfed in false sense of security of life in the event of there being most heinous crime of the earth.16. The law courts as a matter of fact have been rather consistent in the approach that a reasonable proportion has to be maintained between the seriousness of the crime and the punishment. While it is true that a sentence disproportionately severe ought not to be passed but that does not even clothe the law courts with an option to award the sentence which would be manifestly inadequate having due regard to the nature of the offence since an inadequate sentence would fail to produce a deterrent effect on the society at large. Punishments are awarded not because of the fact that it has to be an eye for an eye or a tooth for tooth rather having its due impact on the society: while undue harshness is not required but inadequate punishment may lead to sufferance of the community at large.”In Bachan Singh vs. State (1980)2 SCC 684 decided by a constitution bench the majority view did not agree with the approach adopted by a three-judge bench in Rajendra Prasad vs. State of UP (1979)3 SCC 646 that focused on special reasons. But that apart the majority view in Bachan Singh is as follows:-“As we read Sections 354(3) and 235(2) and other related provisions of the Code of 1973 it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of ‘special reasons’ in that context the court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors depends on the facts and circumstances of the particular case.’’Their Lordships accepted the board contours of the circumstances cited before them by one of the learned counsel as having mitigating impact. The Constitution Bench has observed on the aforesaid submission of the counsel as follows: (SCC p. 750 para 207)“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.”Three such circumstances which the court was told about were the following:-1. The age of the accused - if the accused is young or old the sentence of death should be avoided2. The probability that the accused would not commit criminal acts of violence as would constitute continuing threat to society.3. That the accused acted under duress or domination of another person.After having referred to Bachan Singh supra the Supreme Court in State Vs. Nalini (1999)5 SCC 253 has held thus:“347. Bearing the above principles in mind we have now to determine whether the death sentence passed by the trial court should be confirmed or not in respect of the 7 accused whose conviction of the offence under Section 302 read with Section 120-B we have confirmed. There can be no two opinions that looking at the crime conspectus of what was perpetrated at Sriperumbudur it was most dastardly to the superlative degree. Those who machinated to bring about such a horrendous crime cannot normally escape the extreme penalty of law. As the law enjoins that we have to look at the criminals also we are duty-bound to look at it from that perspective also.348. The conspirators in the Rajiv Gandhi assassination case can be vivisected into four broad categories:First those who formed the hard-core nucleus which took the decision to assassinate Rajiv Gandhi.Second those who induced others to join the ring and played active as well as supervisory roles in the conspiracy.Third those who joined the conspiracy by inducement whether through indoctrination or otherwise Fourth those among the conspirators who participated in the actual commission of murder.In Sushil Murmu vs. State of Jharkhand (2004)2 SCC 338 while stating that the death sentence is ordinarily ruled out and could only be imposed for special reasons as provided in Section 354(2) of the Code of Criminal Procedure 1973 the apex court has expressed its opinion thus:-“6. Section 302 IPC prescribes death or life imprisonment as the penalty for murder. While doing so the Code instructs the court as to its application. The changes which the Code has undergone in the last three decades clearly indicate that Parliament is taking note of contemporary criminological thought and movement. It is not difficult to discern that in the Code there is a definite swing towards life imprisonment. Death sentence is ordinarily ruled out and can only be imposed for “special reasons” as provided in Section 354(3). There is another provision in the Code which also uses the significant expression “special reason”. It is Section 361. Section 360 of the Code re- enacts in substance Section 562 of the Criminal Procedure Code 1898 (in short “the old Code”). Section 361 which is a new provision in the Code makes it mandatory for the court to record “special reasons” for not applying the provisions of Section 360. Section 361 thus casts a duty upon the court to apply the provisions of Section 360 wherever it is possible to do so and to state “special reasons” if it does not do so. In the context of Section 360 the “special reasons” contemplated by Section 361 must be such as to compel the court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the legislature that reformation and rehabilitation of offenders and not mere deterrence are now among the foremost objects of the administration of criminal justice in our country. Section 361 and Section 354(3) have both entered the statute book at the same time and they are part of the emerging picture of acceptance by the legislature of the new trends in criminology. It would not therefore be wrong to assume that the personality of the offender as revealed by his age character antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors Criminal justice deals with complex human problems and diverse human beings. A Judge has to balance the personality of the offender with the circumstances situations and the reactions and choose the appropriate sentence to be imposed.7. It should be borne in mind that before the amendment of Section 367(5) of the old Code by the Criminal Procedure Code (Amendment) Act 1955 (26 of 1955) which came into force on 1.1.1956 on a conviction for an offence punishable with death if the court sentenced the accused to any punishment other than death the reason why sentence of death was not passed had to be stated in the judgment. After the amendment of Section 367(5) of the old Code by Act 26 of 1955 position is clear that the normal penalty is imprisonment for life. It can be awarded in the presence of extenuating circumstances which reduce the gravity of the offence. The matter is left after the amendment to the discretion of the court. The court must however take into account all the circumstances and state its reasons for whichever of the two sentences it imposes in its discretion. Therefore the former rule that the normal punishment for murder is death is no longer operative and it is now within the discretion of the court to pass either of the two sentences prescribed in this section; but whichever of the two sentences he passes the Judge must give his reasons for imposing a particular sentence. The amendment of Section 367(5) of the old Code does not affect the law regulating punishment under IPC. This amendment relates to procedure and now courts are no longer required to elaborate the reasons for not awarding the death penalty; but they cannot depart from sound judicial considerations preferring the lesser punishment.8. Section 354(3) of the Code marks a significant shift in the legislative policy underlying the old Code as in force immediately before 1.4.1974 according to which both the alternative sentences of death or imprisonment for life provided for murder were normal sentences. Now under Section 354(3) of the Code the normal punishment for murder is imprisonment for life and death penalty is an exception. The court is required to state the reasons for the sentence awarded and in the case of death sentence “special reasons” are required to be stated that is to say only special facts and circumstances will warrant the passing of the death sentence. It is in the light of these successive legislative changes in the Code that the judicial decisions prior to the amendment made by Act 26 of 1955 and again Act 2 of 1974 have to be understood.”In dealing with the principle of proportion between crime and punishment the Supreme Court in the case of State of UP vs. Satish (2005)3 SCC 114 has held thus:-“28. The principle of proportion between crime and punishment is a principle of just desert that serves as the foundation of every criminal sentence that is justifiable. As a principle of criminal justice it is hardly less familiar or less important than the principle that only the guilty ought to be punished. Indeed the requirement that punishment not be disproportionately great which is a corollary of just desert is dictated by the same principle that does not allow punishment of the innocent for any punishment in excess of what is deserved for the criminal conduct is punishment without guilt.29. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the judge in arriving at a sentence in each case presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread.30. Proportion between crime and punishment is a goal respected in principle and in spite of errant notions it remains a strong influence in the determination of sentences. Anything less than a penalty of greatest severity for any serious crime is thought to be a measure of toleration that is unwarranted and unwise. But in fact quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime uniformly disproportionate punishment has some very undesirable practical consequences.”In Swamy Shraddananda vs. State of Karnataka (2007)12 SCC 288 it is expressed that cases where death penalty is upheld are those where murder was committed of a large number of persons or by more than one person in a brutal or systematic manner (Para 79).In the case of Des Raj vs. State of Punjab (2007)12 SCC 494 the Supreme Court has indicated as to why in that particular case the death sentence was not warranted and how mitigating circumstances have been given their due importance thus:-“12. Applying the above principles there can be no doubt that this is not a case which calls for imposition of death sentence. This is not a murder to satisfy any greed or lust. This is not a case involving cruelty to or torture of the victim. This is not a case where the act is brutal diabolic or revolting. The accused has no bad antecedents nor is a hardcore criminal nor an anti-social nor an anti-national element.The action was impulsive and without premeditation arising out of a sudden quarrel between the appellant’s wife and Chand Singh’s wife. Each of the victims was shot at only once. The repeated firing by the appellant is an overreaction of an inebriated brain to a petty issue. We hasten to add that drunkenness cannot be an excuse for any brutal or diabolic acts. The entire incident occurred in the span of a few minutes. The repeated loading and firing in utter disregard for life in the circumstances is not an indication of extreme depravity or brutality but of a drunken rage. The trial court and the High Court have persuaded themselves to award the death penalty by considering only the aggravating circumstances and to an extent carried away by the fact that three died and four (two directly and two indirectly) were injured. The mitigating circumstances have not been given their due importance. On a careful balancing of the aggravating and mitigating circumstances we find that in spite of the gravity of the crime involving triple murder the aggravating circumstances noticed and enumerated by the High Court do not outweigh much less overwhelmingly the mitigating circumstances. This is not that the rarest of rare cases which invites death penalty.”In Swamy Shraddananda (2) vs. State of Karnataka (2008)13 SCC 767 the apex court has lamented the lack of uniformity and consistency in according the death sentence in the following words:-“46. More important are the cases of murder of the worst kind and their number is by no means small in which the culprits though identifiable manage to escape any punishment or are let off very lightly. Those cases never come up for comparison with the cases this Court might be dealing with for confirmation of death sentence. To say this is because our Criminal justice System of which the court is only a part does not work with a hundred percent efficiency or anywhere near it is not to say something remarkably new or original. But the point is this Court being the highest court of the Land presiding over a Criminal Justice System that allows culprits of the most dangerous and revolting kinds of murders to slip away should be extremely wary in dealing with death sentence and should resort to it in the words of Bachan Singh only when the other alternative is unquestionably foreclosed.47. We are not unconscious of the simple logic that in case five crimes go undetected and unpunished that is no reason not to apply the law to culprits committing the other five crimes. But this logic does not seem to hold good in case of death penalty. On this logic a convict of murder may be punished with imprisonment for as long as you please. But death penalty is something entirely different. No one can undo an executed death sentence.48. That is not the end of the matter. Coupled with the deficiency of the Criminal Justice System is the lack of consistency in the sentencing process even by this Court. It is noted above that Bachan Singh laid down the principle of the rarest of rare cases. Machhi Singh for practical application crystallised the principle into five definite categories of cases of murder and in doing so also considerably enlarged the scope for imposing death penalty. But the unfortunate reality is that in later decisions neither the rarest of rare cases principle nor the Machhi Singh categories were followed uniformly and consistently.”xxx“51. The truth of the matter is that the question of death penalty is not free from the subjective element and the confirmation of death sentence or its commutation by this Court depends a good deal on the personal prediction of the Judges constituting the Bench.”In Rabindra Kumar Pal @ Dara Singh vs. Republic of India (2011)2 SCC 490 it is reiterated that where a case falls within rarest of rare cases or not has to be examined with reference to the facts and circumstances of each case thus:-“90. Though the trial Court awarded death sentence for Dara Singh the High Court after considering entire materials and finding that it is not a rarest of rare case commuted the death sentence into life imprisonment. The principles with regard to awarding punishment of death have been well settled by judgments of this Court in Bachan Singh vs. State of Punjab AIR 1980 SC 898 Machhi Singh vs. State of Punjab (1983) 3 SCC 470 Kehar Singh vs. State (Delhi Administration) (1988) 3 SCC 609. It is clear from the above decisions that on conviction under Section 302 IPC the normal rule is to award punishment of life imprisonment and the punishment of death should be resorted to only for the rarest of rare cases.91. Whether a case falls within the rarest of rare case or not has to be examined with reference to the facts and circumstances of each case and the Court has to take note of the aggravating as well as mitigating circumstances and conclude whether there was something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for death sentence. However more than 12 years have elapsed since the act was committed we are of the opinion that the life sentence awarded by the High Court need not be enhanced in view of the factual position discussed in the earlier paras.”In Sangeet and another vs. State of Haryana (2013)2 SCC 452 it was again pointed out that there is no uniformity in the application of the approach adopted in Bachan Singh’s case (1980)2 SCC 684) thus:“49. Despite Bachan Singh the “particular crime” continues to play a more important role than the “crime and criminal” as is apparent from some of the cases mentioned above. Standardization and categorization of crimes was attempted in Machhi Singh for the practical application of the rarest of rare cases principle. This was discussed in Swamy Shraddananda. It was pointed out in paragraph 33 of the Report that the Constitution Bench in Jagmohan Singh and Bachan Singh “had firmly declined to be drawn into making any standardization or categorization of cases for awarding death penalty”. In fact in Bachan Singh the Constitution Bench gave over half a dozen reasons against the argument for standardization or categorization of cases. Swamy Shraddananda observed that Machhi Singh overlooked the fact that the Constitution Bench in Jagmohan Singh and Bachan Singh had “resolutely refrained” from such an attempt. Accordingly it was held that even though the five categories of crime (manner of commission of murder motive for commission of murder anti-social or socially abhorrent nature of the crime magnitude of crime and personality of victim of murder) delineated in Machhi Singh provide very useful guidelines nonetheless they could not be taken as inflexible absolute or immutable.50. Indeed in Swamy Shraddananda this Court went so far as to note in paragraph 48 of the Report that in attempting to standardize and categorize crimes Machhi Singh “considerably enlarged the scope for imposing death penalty” that was greatly restricted by Bachan Singh.51. It appears to us that the standardization and categorization of crimes in Machhi Singh has not received further importance from this Court although it is referred to from time to time. This only demonstrates that though Phase II in the development of a sound sentencing policy is still alive it is a little unsteady in its application despite Bachan Singh.”In Mahesh Dhanaji Shinde vs. State of Maharashtra (2014)4 SCC 292 the apex court has expressed that though the principles of sentencing have been identified the difficulty lies in the application thereof in the following words:-“35. In a recent pronouncement in Sunil Dutt Sharma vs. State (Govt. of NCT of Delhi) it has been observed by this Court that the principles of sentencing in our country are fairly well settled – the difficulty is not in identifying such principles but lies in the application thereof. Such application we may respectfully add is a matter of judicial expertise and experience where judicial wisdom must search for an answer to the vexed question —whether the option of life sentence is unquestionably foreclosed? The unbiased and trained judicial mind free from all prejudices and notions is the only asset which would guide the judge to reach the ‘truth’.”.Keeping the above opinions expressed by the apex court in view we do not see any difficulty in arriving at a conclusion that the present case on hand falls under the category of rarest of rare cases. The accused have been clearly identified by Suryakantamma PW.7 and Srinivas PW.6. They were direct eye-witnesses to the incident. Their testimony has remained unimpeached. The murders have been committed in a most brutal fashion. The lower limbs of the victims have been firstly amputated and thereafter they have been butchered and the gory scene has been witnessed by Suryakantamma who was again attacked mercilessly and was left for dead. Added to this the accused have stripped her and have used the clothes of the accused and Suryakantamma’s saree to set fire to the dead bodies.The victims were humble workmen. The case of the prosecution is that the offence was in the nature of dacoity with murder. Even if some doubt could be raised as to the paltry gain which the accused could expect and even if it could be said that there was some other motive for the murders to have been committed the manner in which it has been committed would certainly indicate the depravity of the minds of the accused. It would not be worthwhile to attempt reformation of such individuals. According to the learned State Public Prosecutor the accused belonged to the “Chigarikara” group who are said to be known for their reputation as brutal and merciless thieves and killers. There is however no evidence placed on record in support of such an allegation. But the present case on hand would certainly demonstrate their inclination.Therefore we have no hesitation in confirming the death sentence imposed by the trial court. The accused shall be hung by their respective neck till dead. The sentence imposed by the trial court is thus confirmed.The Criminal Reference Case is allowed.