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PETITIONER: AMRUTLAL SOMESWAR JOSHI

       Vs.

RESPONDENT: STATE OF MAHARASHTRA (II)

DATE OF JUDGMENT10/08/1994

BENCH: REDDY, K. JAYACHANDRA (J) BENCH: REDDY, K. JAYACHANDRA (J) PUNCHHI, M.M.

CITATION:  1994 AIR 2516            1994 SCC  (6) 186  JT 1994 (5)    25        1994 SCALE  (3)721

ACT:

HEADNOTE:

JUDGMENT: The Judgment of the Court was delivered by K.   JAYACHANDRA  REDDY, J.- Amrutlal Someshwar  Joshi,  the petitioner  in  this  review petition is  the  appellant  in Criminal  Appeal No. 87 of 1994 which has been dismissed  by us  on 10-8-1994.  The appellant has been convicted  by  the trial  court under Section 302 IPC and sentenced  to  death. The  same  has been confirmed by the High Court.   We  heard Criminal Appeal No. 87 of 1994 filed by him in this Court at length  and ultimately dismissed the same holding  that  the appellant killed three persons including a child aged  about three years in a brutal and diabolical manner with a view to commit  robbery.  We also held that the motive  was  heinous and  the  crime  committed was a  cold-blooded,  brutal  and diabolical one and that his case fell within the category of "rarest  of  rare  cases".   Accordingly  we  confirmed  the judgments of the courts below awarding death sentence to the petitioner  herein.  Hence the present review  petition  has been filed seeking review of our judgment dated 10-8-1994 in Criminal Appeal No. 87 of 1994. 2.   In the meanwhile a separate petition dated 22-8-1994 to review  the judgment in Criminal Appeal No. 87 of 1994  sent by the convicted accused from jail is received which is  not separately numbered.  In this review petition as well as the regular  review petition filed through counsel, some  points regarding  appreciation of evidence by this Court have  been raised.   We have examined these points and we see no  merit in  any  of  them.  It may be mentioned here  that  all  the relevant   evidence  has  been  considered  in  detail   and thereafter we reached the conclusion that the said items  of evidence  considered by us by themselves are  sufficient  to bring  home  the  guilt to the accused  and  we  accordingly confirmed  the  concurrent  findings of  the  courts  below. There is no need to consider each one of them again in these review petitions.  We may incidentally mention here that  in the petition sent from jail the convicted accused has  given

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his age as 25 years.  He, however, has not raised any  point regarding  his  age  stating that it should be  taken  as  a mitigating   circumstance.    Learned   counsel   for    the petitioner,  however, mainly concentrated on the age of  the convicted accused on the date of commission 202 of  the  offence in support of his plea that the  young  age should be treated as a mitigating circumstance in the matter of awarding death sentence. 3.   Since  this is a case of death sentence, we have  heard the  learned counsel for the petitioner as well  as  learned counsel  for the State.  Learned counsel for the  petitioner submitted that the petitioner on the date of occurrence i.e. 4-8-1987  was only 17 years old and therefore having  regard to  his age, death sentence ought not to have been  awarded. In support of this submission strong reliance is placed on a judgment  of this Court in Harnam v. State of U.  PI,  which was  followed in Raisul v. State of U. p 2 In Harnam  case’, Justice P.N. Bhagwati, as he then was, having held that  the crime committed by the appellant was most reprehensible  and heinous disclosing brutality and callousness to human  life, yet  having noted that the appellant was of 16 years of  age at  the  time of commission of crime, however, held  that  a murderer  who  is  below  18 years of age  at  the  time  of commission  of the offence should be considered to  be  "too young"  and  that "he would be entitled to the  clemency  of penal justice and it would not be appropriate to impose  the extreme penalty of death on him".  In Raisul case2,  Justice P.N.  Bhagwati, who spoke for the Bench in a short  judgment following the judgment in Harnam case1, again held that  the appellant  Raisul was below 18 years of age at the  time  of commission  of  the  offence and  therefore  death  sentence should not have been imposed on him. 4.   The learned counsel for the petitioner, in the  instant case,  submitted that the age of the accused is one  of  the mitigating circumstances and that if the accused is young he shall  not  be  sentenced to death.   In  this  context  the learned  counsel  also placed reliance on the  judgments  of this Court in Bachan Singh v. State of Punjab3 and Shankar @ Gauri  Shankar  v. State Of T.N.4 It may be  mentioned  here that  in  Bachan Singh case3, a Constitution Bench  of  this Court  mentioned some aggravating  circumstances  warranting the  imposition  of death sentence and also  mentioned  some mitigating   circumstances  and  age  of  the  accused   was mentioned  to be one such mitigating circumstance.   It  was also observed by this Court that: (SCC p.    75 1, para 209)               "There   are  numerous   other   circumstances               justifying   the   passing  of   the   lighter               sentence;   as   there   are    countervailing               circumstances  of  aggravation.   ’We   cannot               obviously  feed into a judicial  computer  all               such  situations since they  are  astrological               imponderables  in an imperfect and  undulating               society.’ " In Machhi Singh v. State of Punjab5, a Bench of three Judges of  this  Court  having noted the principles  laid  down  in Bachan Singh case3 observed thus: (SCC p. 489, paras 39, 40) 1 (1976) 1 SCC 163 1975 SCC (Cri) 794 2 (1976) 4 SCC 301 1976 SCC (Cri) 613 3 (1980) 2 SCC 684: 1980 SCC (Cri) 580 4 (1994) 4 SCC 478 : 1994 SCC (Cri) 1252: JT (1994) 3 SC  54 5 (1983) 3 SCC 470: 1983 SCC (Cri) 681 203               "In order to apply these guidelines inter alia               the  following  questions  may  be  asked  and

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             answered:               (a)   Is  there something uncommon  about  the               crime  which renders sentence of  imprisonment               for  life  inadequate and calls  for  a  death               sentence?               (b)   Are the circumstances of the crime  such               that  there  is no alternative but  to  impose               death  sentence even after  according  maximum               weightage  to  the  mitigating   circumstances               which speak in favour of the offender?               If  upon taking an overall global view of  all               the   circumstances  in  the  light   of   the               aforesaid proposition and taking into  account               the    answers   to   the   questions    posed               hereinabove, the circumstances of the case are               such  that  death sentence is  warranted,  the               court would proceed to do so." In  Allauddin  Mian  v. State of  Bihar6  this  Court  after referring  to Bachan Singh case3 observed thus: (SCC p.  22, para 12)               "That is why this Court in Bachan Singh  case3               observed  that when the question of choice  of               sentence is under consideration the Court must               not only took to the crime and the victim  but               also the circumstances of the criminal and the               impact of the crime on the community." 5.   Neither in Bachan Singh case3 decided by a Constitution Bench nor in Machhi Singh case5 nor in Allauddin Mian case6, which are later in point of time, there is any reference  to Harnam case1 or Raisul case2 nor is there any indication  in those three later cases that a person aged about 18 years of age on the date of commission of the offence should under no circumstances be sentenced to death.  We are only  referring to this aspect to show that there is no inflexible rule that a  criminal  aged  about  17 or 18  years  should  never  be sentenced  to  death irrespective  of  other  circumstances, however aggravating they may be. 6.   Learned counsel for the petitioner, however,  submitted that  the  view  taken  in  Harnam  case1  or  Raisul  case2 certainly comes to the rescue of the petitioner who was aged only  about  17  years  at the time  of  commission  of  the offence.   Assuming  for argument sake that  this  Court  in these two cases has laid down that the accused who is  under 18 years of age should not be sentenced to death, still  the important question to be considered in this case is  whether the  petitioner  was  aged  only 17 years  on  the  date  of commission of the offence as is being claimed.  The date  of the  occurrence  in this case was  4-8-1987.   The  accused- petitioner when examined under Section 313 CrPC on 26-8-1992 gave  his  age to be about 22 years.  Relying on  this,  the learned counsel submitted that the age of the petitioner  on 4-8-1987  i.e.  the date of commission of the  offence,  was only about 17 years and therefore death sentence should  not have  been imposed.  The trial court after having  convicted the  petitioner under Sections 302 and 394 IPC examined  the accused  on  the  next day on the point  of  sentence  after explaining the sum 6 (1989) 3 SCC 5: (1989 SCC (Cri) 490: AIR 1989 SC 1456 204 and substance of the reasoning of its judgment.  The accused stated  that  justice  has not been done  to  him  and  that considering  his  young  age,  the  court  should  show  him sympathy.   The learned trial Judge also heard the  advocate for  the  accused on the point of sentence who  stated  that when the offence was committed, the accused was of 17  years

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of  age.  The public prosecutor contended that  the  accused was not 17 years of age at the time of commission of offence placing  reliance  on  a true copy  of  the  school  leaving certificate  of the accused in which his date of  birth  was mentioned  as 1-5-1967.  The learned trial Judge  held  that the  accused was not of 17 years of age relying on the  said certificate.   It  is  very pertinent to  note  that  nobody questioned  the authenticity of the said  certificate.   The learned  trial  Judge  after  elaborate  discussion  on  the question  of  sentence  and  also on  the  question  of  age ultimately  held  that this is a case where  death  sentence alone  would  meet  the ends of justice.   Before  the  High Court, on question of sentence, the learned counsel for  the accused  urged that the accused was a young man of about  20 years of age.  The High Court, however, having taken all the circumstances   and  findings  of  the  court   below   into consideration,  by its judgment dated  26-10-1993  dismissed the appeal and confirmed the death sentence.  We are  unable to  understand as to how the petitioner who gave his age  as 22  years on 26-8-1992 when examined under Section 313  CrPC could  be of 20 years of age in the year 1993 when the  High Court  heard  the  appeal.  Likewise in  the  special  leave petition  filed  in this Court on 27-1-1994 the age  of  the petitioner  is given as 20 years.  Strangely in  the  review petition dated 22-8-1994 sent by the convicted accused  from jail, which is also attested by the Jail Superintendent,  he has  given  his age as 25 years.  If one goes by  this  age, then he would have almost completed 18 years on the date  of commission  of the offence.  We are only pointing out  these aspects  only  to  show that the age as such  given  by  the accused or by his advocates at various stages differently is of  no  consequence and cannot be given  any  weight.   Even before the High Court, the authenticity of the date of birth of the appellant as given in the school leaving  certificate has not been questioned.  Consequently the statement of  the accused  regarding  his age cannot be the criteria  to  hold that he was below 18 years of age on the date of  commission of  the  offence.   Learned  counsel  for  the   petitioner, however, submitted that the accused has not been  questioned separately with reference to the date of birth given in  the school  leaving  certificate and therefore  that  cannot  be acted upon.  We see no force in this submission.  It is only after  the conclusion of the trial and after  rendering  the judgment,  the  accused as per the provisions  of  CrPC  was questioned  in  the matter of awarding  of  sentence.   When there  was a vague statement regarding age, the  prosecution produced  the  school leaving certificate and the  same  was placed on record and the authenticity of the same has  never been in doubt.  Learned counsel, however, further  submitted that  the accused can be medically examined at  this  stage. Under  the  above circumstances, we do not think  that  this exercise  has to be undertaken by this Court at  this  stage when the authenticity of the school leaving certificate  has never  been in doubt.  The date of birth given in  the  said certificate  is  1-5-1967 and the petitioner was  aged  more than 20 years 205 on  the  date of commission of the offence.   Therefore  the petitioner’s  case does not come within the  principle  laid down  in  Harnam case1 which has   been followed  in  Raisul case2. 7.   Having given our earnest consideration to the questions raised, we see absolutely no grounds to reduce the  sentence to imprisonment for life on the grounds urged by the learned counsel.  Accordingly the review petitions are dismissed.

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