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PETITIONER: SRI MAHENDRA NATH DAS SRI GOBINDA DAS

       Vs.

RESPONDENT: STATE OF ASSAM

DATE OF JUDGMENT:       14/05/1999

BENCH: D.P.Mohapatro, Syed Shah Mohammed Quadri

JUDGMENT:

J  U  D  G  M  E  N  T

S.SHAH MOHAMMED QUADRI,J.

     The  appellant  was  found  guilty  of  offence  under Section  302 IPC and was sentenced to death by the  Sessions Judge,  Kamrup,  Guwahati  in  S.C.No.114  (K)  of  1996  on 18.8.1997  which was confirmed by the Division Bench of  the Gauhati  High  Court in Criminal Death Ref.No.2 of 1997  and Criminal Appeal No.254 (J) of 1997 on 3.2.1998.  Against the judgment  of the High Court, this appeal is filed by special leave.   This  Court  admitted  the appeal  limited  to  the question  of  sentence.  The gravamen of the charge  against the  appellant is that in the morning hours, around 7  a.m., on  April 24, 1996 Hara Kanta Das was taking his morning cup of  tea  on the corner tea stall of M.G.  Road  and  Chamber Road,  Guwahati along with others.  The appellant arrived at the  scene with a sword like weapon and with it dealt  blows to  Hara  Kanta  Das  who  fell down  on  the  ground.   The appellant  amputed the right hand and thereafter severed the head of Hara Kanta Das (the deceased).  With the head of the deceased  in  one hand and the blood dripping weapon in  the other hand, he moved majestically towards Fancy Bazar Police Out  Post.  The occurrence was witnessed by persons standing there  of  whom PW 3, Kalu Das, PW5, Gaya Prasad and  PW  8, Gauri  Sankar Thakur were examined as eye witnesses.   Ratan Rai,  PW  1,  the sweeper rushed to the  police  station  to inform  about  the incident.  There he found  the  appellant entering  into the Police Out Post.  PW 2, Rateshwar  Barman was on duty.  The appellant asked PW 2, where he should keep the  head and the weapon and placed them in the verandah  of the  police  station.  The weapon was seized and  marked  as Ext.1  after conducting inquest over the head.  After taking the  head  to  the scene of occurrence where  the  body  was lying,  another inquest was conducted and the body was  sent to  the Doctors for conducting post mortem examination.   PW 9,   Dr.Pratap   Ch.Sarmah,  conducted   the   post   mortem examination  and  sent report, Ext.14.  PW 9 noted that  the head  of  the deceased was severed from the body  which  was having as many as nine injuries on it.  The learned Sessions Judge,  Kamrup,  Guwahati having considered the evidence  of eye  witnesses,  which  was   corroborated  by  the  medical evidence,  found  the  appellant  guilty  of  offence  under Section  302  IPC.  On the question of sentence the  learned Sessions Judge gave an opportunity to the appellant to state the  mitigating circumstances, if any, and noted that he did

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not  state anything relevant and that he even refused to put his signatures on his statement.  The learned Sessions Judge mentioned  that  the  appellant remained  uncooperative,  on being asked further questions in regard to sentence.  In the circumstances of the case having applied the principles laid down  by  this Court, the learned Sessions  Judge  concluded that it is rarest of the rare case and accordingly sentenced the  appellant  to death and referred the case to  the  High Court  under Section 366(1) Cr.P.C.  for confirmation of the death  sentence.   The  reference was numbered  as  Criminal Death   Ref.No.2  of  1997.    Against  his  conviction  and sentence,  the appellant filed Criminal Appeal No.254 (J) of 1997  in  the  High  Court of  Assam,  Nagaland,  Meghalaya, Manipur,  Tripura, Mizoram and Arunachal Pradesh at Gauhati. That  appeal and Criminal Death Ref.No.2 of 1997 were  heard together.   After  elaborate consideration of all the  facts and  law,  the  High  Court  confirmed  the  conviction  and sentence  of  death passed by the learned Sessions Judge  by its  judgment  dated  February 3, 1998, referred  to  above. Mr.Goswami,  learned  senior  counsel   appearing  for   the appellant,  submitted  that the appellant was  not  properly represented before the Trial Court as well as the High Court at  the  material time;  he is a young man of 33  years  and having  three  unmarried sisters and aged parents;   he  was also  not well at the time of occurrence.  The case has also not  been investigated properly and there is no material  to show  that  he has become menace to the society.  He  prayed that   the   death  sentence  may   be  commuted   to   life imprisonment.

     Mr.Sunil  Jain,  learned  counsel  appearing  for  the State, contended that the cruel manner in which the crime is committed  did not admit of any leniency;  the deceased came pre-determined  duly  armed  with  sword  and  targeted  the deceased among the crowd of persons standing there while the deceased was unarmed and was taking his morning tea and that it  is  a  fit  case to confirm  the  death  sentence.   The exercise   of  power  to  award   death  sentence   is   now circumscribed   by   Section  354(3)   Cr.P.C.    The   said sub-section  provides  that  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.  The principles with regard  to awarding  punishment  of  death   are  now  well-settled  by judgments of this Court in Bachan Singh vs.  State of Punjab [AIR 1980 SC 989], Machhi Singh & Ors.  vs.  State of Punjab [(1983) 3 SCR 413] and Kehar Singh & Ors.  vs.  State (Delhi Administration)  [(1988)  3  SCC 609.  Briefly  stated,  the principles  are :  that on conviction under Section 302  IPC the  normal rule is to award punishment of life imprisonment and that the punishment of death should be reserved only for the  rarest of rare cases.  Whether a case falls within ‘the rarest  of rare’ cases has to be examined with reference  to the  facts and circumstances of each case.  The Court has to take  note  of  the aggravating as well  as  the  mitigating circumstances  and  conclude  whether  there  was  something uncommon  about  the  crime which renders  the  sentence  of imprisonment  for  life  inadequate and calls  for  a  death sentence.   The  Court is also expected to consider  whether the  circumstances  of  the crime is such that there  is  no alternative  but  to impose death sentence  after  according maximum  weightage  to  the mitigating  circumstances  which speak in favour of the offender.  These principles have been

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applied  by  this Court in innumerable cases.   The  learned counsel  for  the  appellant  has, however,  relied  on  the judgment  of this Court in Raja Ram Yadav & Ors.  vs.  State of  Bihar  [(1996) 9 SCC 287] in support of  his  contention that  the  death  sentence  has to  be  commuted  into  life imprisonment.   In  that case the convicts- appellants  were tried for offences punishable under Section 302 IPC and were sentenced  to  death by the trial court.  There  were  feuds between  Rajputs and Yadavs in Chhechhani.  The incident  of carnage  to  which the case related had taken place  as  the retaliation  of  Yadavs by killing the Rajputs.   The  Trial Court awarded death sentence which was confirmed by the High Court.  The sole eyewitness of the occurrence was 9 year old boy.  While reiterating the aforesaid principles this Court, on  the  special  facts  of the case, held  thus  :   "After keeping in mind the relevant considerations for awarding the extreme  penalty  of death and also on considering the  fact that in the instance case, the sole eyewitness did not tell, according  to  PW 1, the names of four of the appellants  we feel  that  although  the murders had been  committed  in  a pre-meditated and calculated manner with extreme cruelty and brutality,  for  which  normally sentence of death  will  be wholly  justified, in the special facts of the case, it will not  be  proper  to award extreme sentence of death  on  the appellants."

     The  other case referred to by him is Ronny vs.  State of  Maharashtra [(1998) 3 SCC 625].  There three  appellants were  convicted  under  Sections  376  and  302/34  IPC  for committing  rape  and gruesome murder and were sentenced  to death by the Trial Court.  The High Court declined to take a different  view.  This Court while considering the  question of  sentence observed that as it was not possible to predict as to who among the three played which part and therefore it might  be  that  the role of one had been more  culpable  in degree than that of the others and vice versa and considered it appropriate to commute the death sentence to imprisonment for  life.  In State of Himachal Pradesh vs.  Manohar  Singh Thakur  [(1998) 6 SCC 158] the evidence against the  convict was  circumstantial evidence.  The Trial Court convicted him of  offence punishable under Section 302 but the High Court, on  appeal,  recorded acquittal.  On the State’s  appeal  to this  Court the judgment of the High Court was set aside and the  order  of  conviction  passed by the  Trial  Court  was restored.   On the question of sentence it was observed that though  murder  by its very nature is shocking, that per  se does  not  justify death penalty.  Further this Court  found that  it  was not a rarest of rare case.  In Allauddin  Mian vs.   State of Bihar [AIR 1989 SC 1456] this Court laid down that unless the nature of the crime and the circumstances of the  offender  reveal that the criminal is a menace  to  the society  and  the  sentence of life  imprisonment  would  be altogether  inadequate,  the Court should ordinarily  impose the  lesser  punishment  and not the extreme  punishment  of death  which should be reserved for exceptional cases  only. The ratio of these cases is of no help to the appellant.  We may,  however, note here that in Shankar vs.  State of Tamil Nadu  [(1994)  4 SCC 478], the finding recorded by the  High Court   was   that   the   crime  indulged   was   gruesome, cold-blooded,   heinous,  atrocious  and   cruel   and   the accused-appellant  was  proved to be an ardent criminal  and thus  a menace to the society.  On those findings, the death sentence  was confirmed by this Court as the facts disclosed that  the  culpability of the accused-appellant has  assumed extreme  depravity and therefore special reasons can be said

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to  exist  to  order the death penalty.  Now coming  to  the facts   of  this  case,  the   circumstances  of  the   case unmistakably  show  that the murder committed was  extremely gruesome,  heinous,  cold-blooded and cruel.  The manner  in which  the murder was committed was atrocious and  shocking. After giving blows with a sword to the deceased when he fell down  the appellant amputed his hand, severed his head  from the  body carried it through the road to the police  station (majestically  as the trial court puts it) by holding it  in one  hand  and the blood dripping weapon on the other  hand. Does  it not depict the extreme depravity of the  appellant? In  our view it does.  The mitigating circumstances  pointed out by the learned counsel for the appellant are, though the appellant himself did not state any mitigating circumstances when  inquired about the same by the learned Sessions Judge, that  the  appellant is a young man of 33 years  and  having three unmarried sisters and aged parents and he was not well at  that time.  These circumstances when weighed against the aggravating  circumstances  leave us in no doubt  that  this case falls within the category of rarest of rare cases.  The Trial Court has correctly applied the principles in awarding the death sentence and the High Court has committed no error of law in confirming the same.  On these facts, declining to confirm  the death sentence will, in our view, stultify  the course  of  law and justice.  In Govindasami vs.   State  of Tamil Nadu (JT (1998) 3 260 ] Mukherjee,J.  speaking for the court  observed, "If, inspite thereof, we commute the  death sentence  to  life  imprisonment  we  will  be  yielding  to spasmodic  sentiment, unregulated benevolence and  misplaced sympathy".

     In  these circumstances, we uphold the death sentence. The appeal is accordingly dismissed.