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PETITIONER: MOHAN & ORS.

       Vs.

RESPONDENT: STATE OF TAMIL NADU

DATE OF JUDGMENT:       12/05/1998

BENCH: M.K. MUKHERJEE, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T G.B. PATTANAIK,J.      These four  appeals by  four different  appellants  are directed against  the common judgment dated 27.5.1997 of the High Court  of Madras.  By the  impugned judgment  the  High Court has  confirmed the  conviction and  sentence passed by the learned Sessions Judge as under :- Appellant        Fount guilty of an       Sentenced                  offence under (IPC)        TO ----------------------------------------------------------- Mohan            S.120-B                  7 yrs. R.I.                   S. 201                  7 yrs. R.I.                   S. 365                  7 yrs. R.I.                   S. 386                 10 yrs. R.I.                   S. 302                   Death Gopi (A-2)       S. 120 B                7 yrs. R.I.                   S. 201                 7 yrs. R.I.                   S. 365                 7 yrs. R.I.                   S. 386                10 yrs. R.I.                   S. 302                  Death Muthu (A-3)      S. 120-B               7 yrs. R.I.                   S. 201                7 yrs. R.I.                   S. 365 r/w 34         7 yrs. R.I.                   S. 386 r/w 34        10 yrs. R.I.                   S. 302                  Death P. Pushparaj (A-4)            S. 120-B                7 yrs. R.I.                  S. 365                  7 yrs. R.I.                  S. 386 r/w 34          10 yrs. R.I.                  S. 302 r/w 34           Death This  Court   granted  leave  limited  to  the  question  of sentence.  The   question  that  arises  for  consideration, therefore, is  whether the  extreme penalty  of death passed against each  of the  appellants is  justified?  It  may  be stated that  apart from  the accused-appellants  another co- accused Sampath had been convicted and sentenced to rigorous imprisonment for  7 years’  for his conviction under Section 123-B and  365 I.P.C.  and 10 years for the conviction under Section 386/34 and was acquitted of the charge under Section 302/34 and  Section  201/34  and  the  said  conviction  and

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sentence also was affirmed by the High Court and the Special Leave Petition  against the  said judgment  was dismissed by this Court.  There was  also a  sixth accused Chandrasekaran but he died during the pendency of the case.      Since this Court is required to examine the correctness of the extreme sentence of death penalty awarded against the appellants only,  it is  not necessary to narrate the entire facts in  greater detail.  Suffice it to say that the Courts below have  found that  the accused  persons entered  into a conspiracy to  get Rs.  5 lakhs as ransom from the father of the deceased  by kidnapping  the deceased  a young boy to 10 years old. In accordance with the plan accused Pushparaj who was the  driver of  the car belonging to Singaravelu went to the school  on 28th  of June,  1993, at  12 noon  where  the deceased was  studying and  as soon  as he  met the deceased told him  that his  father  has  been  waiting  for  him  at Meenambakkam and  sent the  car to  take the deceased in the car. As  Pushparaj was their driver the deceased relied upon his words  and got into the Maruti Van which had been parked nearby. In  the car  accused Mohan,  accused  Gopi,  accused Chandrasekaran, since  dead, and  accused Sampath were there and  all   of  them   took  the   deceased  to  a  place  in Moovarasanpettai Main Road and kept him detained there. They contacted the  father of  the deceased  and demanded  Rs.  5 lakhs so that the boy would be released otherwise they would kill the  boy. On 29th June, 1993, the accused persons mixed some coppersulphate in a glass of cold drink and offered the same to  the deceased  while they  had already tied legs and hands of the deceased. The accused persons began killing the boy by tying the boy’s neck with a rope and pulling its both ends and  closing the  mouth of the deceased with a piece of cloth.  By   this  process   they  killed  the  deceased  by strangulation. Thereafter  the dead body of the deceased was kept in the empty TV box and the box was dropped into an un- used well  near a  temple. Even  after killing  the boy they contacted the  father of the deceased Singaravelu to get the ransom of Rs. 5 lakhs and ultimately succeeded in extracting a sum  of Rs.  5 lakhs  from him on 4.7.1993 and divided the amount among themselves.      This is  broadly the  prosecution case,  as unfolded in course of  trial which  has been  accepted  by  the  learned Sessions Judge  as well  as by  the High Court in appeal. On the very  face of  it the  incident appears to be a gruesome one and  indicates the  brutality  with  which  the  accused persons committed  murder of  a young boy and in furtherance of the  said plan  they tried  to cause disappearance of the dead body  itself. It  is true,  that the extreme penalty of death should not be imposed in all cases of conviction under Section 302  and should  be awarded  only in  rarest of rare cases where  the Court  finds that murder has been committed in  a  pre-meditated  and  calculated  manner  with  extreme cruelty and  brutality  and  the  aggravating  circumstances would justify  such extreme  penalty. While  considering the question whether  in a  given case  the extreme  penalty  of death should  be imposed or not the Court should try to find out any  mitigating circumstances  and  on  being  satisfied about the  existence of  such mitigating  circumstances  the Court would  be justified in imposing the lesser sentence of imprisonment for  life. It would, therefore, be necessary in the case in hand to find out the existence of any mitigating circumstances as  against all  or any of the four appellants which on  consideration would  justify a  lesser sentence of imprisonment for  life and  the evidence on record has to be scrutinised from  that stand  point. But before focusing our attention to  the so  called  mitigating  circumstances,  as

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urged, by  Mr. Muralidhar, learned counsel appearing for the appellants it  would be  worthwhile to  notice some  of  the decisions  of  this  Court  indicating  the  criteria  where extreme penalty  of death  can be awarded and where the same should not be awarded. In Bachan  Singh etc.  etc. vs.  State of  Punjab etc.  etc. (1980) 2 SCC 684, the Constitution Bench while upholding the constitutional validity  of imposition  of death penalty for murder came  to hold  that it  is not  possible to  lay down standards and  norms for  imposition of death penalty as the degree of  culpability cannot  be measured in each case; and secondly, criminal  cases cannot be categorised, there being infinite unpredictable  and  unforeseeable  variations,  and thirdly, on such categorisation, the sentencing process will cease to  be judicial; and fourthly, such standardisation or sentencing discretion  is a  policy-matter belonging  to the legislature beyond  the court’s  function. Yet what could be reasonably culled  out to  be guidelines  from the aforesaid decision ;- (i)  The extreme  penalty of  death need  not  be  inflicted      except in gravest cases of extreme culpability. (ii) Before  opting for  the death penalty the circumstances      of  the  ‘offender’  also  require  to  be  taken  into      consideration  along  with  the  circumstances  of  the      ‘crime’. (iii) Life imprisonment is the rule and death sentence is an      exception. Death   sentence  must be  imposed only when      life  imprisonment   appears  to   be   an   altogether      inadequate punishment  having regard  to  the  relevant      circumstances of  the crime,  and  provided,  and  only      provided, the option to impose sentence of imprisonment      for life  cannot be  conscientiously  exercised  having      regard to the nature and circumstances of the crime and      all the relevant circumstances. (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. In Machhi  Singh and  others vs.  State of Punjab - (1983) 3 Supreme Court  Cases 470, three learned judges of this Court came to  hold that the observation of the Constitution Bench in Bachan  Singh’s case  (supra)  that  the  death  sentence should b  e given in rarest of rare cases has to be examined in the  facts of  the individual  case  in  the  context  of relevant guidelines. Their Lordships indicated that when the murder is  committed  in  an  extremely  brutal,  grotesque, diabolical, revolting,  or dastardly  manner so as to arouse intense and extreme indignation of the community it would be a rarest  of rare  cases. Their  Lordships also further laid down when the murder is committed for a motive which evinces total depravity  and meanness,  for example, murder by hired assassin for  money or  reward; or  cold-blooded murder  for gains of  a person  vis-a-vis whom  the  murderer  is  in  a dominating position  or in a position of trust; or murder is committed in  the course  for betrayal  of the motherland it would  attract   the  principle  of  rarest  of  rare  case. Lordships also in the aforesaid case had indicated that when the victim  of murder  is an  innocent child,  or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is  in a  dominating position,  or a  public figure generally loved  and respected  by the  community,  then  it would also satisfy the test of rarest of rare case. In   Suresh vs. State of U.P. - (1981) 2 Supreme Court Cases

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569, the  Court did  not feel  it  safe  to  impose  extreme penalty of  death as  the conviction  was being based on the deposition of a single child witness as of 5 y ears’ old. In A.  Devendran etc.  vs. R.  Pandian and  Another  etc.  - (1997) 11  Supreme Court  Cases  720,  where  in  course  of commission of dacoity the accused persons had also committed murder of  three persons  it was held by this Court that the case would  not come  within the  category of rarest of rare cases and,  as such,  the Court  will not  be  justified  in awarding death sentence. In State  of U.P.  vs. Bhoora  and Others - (1998) 1 Supreme Court Cases  128, where  four persons have been murdered the Court did  not award death sentence and commuted the same to life imprisonment  being of  the view  that  the  number  of persons killed  cannot be  the sole criteria to bring in the case within the exceptional category of rarest of rare cases and taking  into account  the fact  that the occurrence took place in  the year  1978 and more than 20 years have elapsed in the  meantime, the Court awarded sentence of imprisonment for life.  It is  not necessary to notice other decisions on which the  learned counsel Mr. Muralidhar relied upon, since applying the  principles laid down in the aforesaid cased to the case  in hand  in order  to find out whether there exist any  mitigating   circumstances  for   which  there  can  be commutation of  death sentence to life imprisonment or there exists aggravating  circumstances to  bring the cases within the principle of rarest of rare cases so that the penalty of death awarded would depend.      According  to   Mr.  Muralidhar,  the  learned  counsel appearing  for  the  appellants,  that  appellant  no.  1  @ Mohanarangam was  not   a hardened  criminal  and  even  his confessional statement  indicates that he had been disturbed and was  even ready  to commit  suicide. Further   the  pre- meditated plan was only to kidnap the boy and the killing of the boy  took place  merely out of panic when appellant no.1 learnt that there has been a heavy search for the boy by the police party.  Mr.  Muralidhar,  the  learned  counsel  also contended that  if the  confession of  Mohan is  scrutinised carefully it  would appear  that it  is full  of remorse and that is  suggestive of  the fact  that he  did not  act with depraved mind  and these  mitigating factors  have not  been duly considered by the learned Sessions Judge while awarding death sentence as well as by the High Court while confirming the said death sentence.      So far  as appellant no.2 Muthu is concerned, according to  Mr.   Muralidhar,  learned  counsel  appearing  for  the appellants, even  the confession of co-accused Mohan clearly indicates that  he was  not a part of any conspiracy nor did he willingly  take part  in the commission of the murder. On the other  hand it  is the  statement of  Mohan that when he disclosed  the   plan  to  Muthu  and  Pushparaj  they  were flabbergasted and  ultimately they were made to agree out of fear. According  to the  learned counsel  the  circumstances under which  he was  first released on bail and was then re- arrested throws  considerable doubt  on the  exact date  and manner of  his arrest.  Said  accused  Muthu  has  also  not received any  part of  ransom money  nor has  there been any recovery made  by the  police  at  his  instance  and  these circumstances can be held to be mitigating circumstances for not confirming death sentence against him.      So far  as appellant  Pushparaj is concerned, no doubt, he was  instrumental in  getting the  boy from the school by telling him that his father is waiting but thereafter he has not played any role either in conceiving the idea of killing him or  factually taken  any part in the killing of the boy.

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On the  other hand  the evidence discloses that it is he who pleaded with  Mohan not  to kill the boy when Mohan divulged that boy should be killed. It is he who refused to accompany Mohan to pick up the ransom money after the death of the boy and in  fact no  ransom money  has been  paid to him nor any recovery of  any incriminating  material at his instance has been recovered.  He had  no criminal history earlier, but as he was  known to  the father of the deceased and happened to be a  neighbour of  accused Mohan  and Gopi  he got  himself involved in  getting the  boy kidnapped.  According  to  Mr. Muralidhar,  the   learned   counsel   appearing   for   the appellants, these mitigating circumstances are sufficient to hold that  accused Pushparaj  does not  deserve the  extreme penalty of death.      So far  as appellant  no.4 Gopi is concerned, according to Mr.  Muralidhar the  learned counsel  appearing  for  the appellants, the  only link  that has been established is the alleged phone  call he supposed to have made to Mohan on the evening of  28th June,  1983 asking  him to kill the boy. He has not participated in the actual murder of the boy. On the other hand his statement under Section 313 Cr.P.C. indicates that he  has helped in searching of the missing boy. He also did not  receive any part of ransom money nor there has been any recovery  made at  his  instance,  and,  therefore,  the decision of  this Court in Suresh Chandra vs. State of Bihar - (1995)  Supp.1 Supreme  Court Cases  80,  should  squarely apply to  his case.  According to  the learned  counsel  the learned Sessions  Judge as  well as  the  High  Court  while awarding death  sentence to  all the  four  appellants  have merely used  the expression  that the case is diabolical and shocking and  must be  treated as  one of  the rarest of the rare case, without any justification for the same.      After   carefully scrutinising  the materials on record and the  arguments advanced  by the  learned counsel for the appellants though  we find sufficient force in the arguments so far  as appellant  Muthu @  Muthuraman and  Pushparaj are concerned, we  do not  find any  substance in the contention advanced so  far as appellants Mohan and Gopi are concerned. It may be noticed that immediately after the boy was brought from the  school by accused Pushparaj. Mohan took him in the van and  kept him  in confinement at a solitary place. It is he who  conceived the  idea of  taking the life of the young boy. It  is he  who did  not accede  to the  request of  co- accused Muthu  who persuaded him not to kill the boy and, on the other  hand, Mohan  threatened Muthu that unless the boy in killed  he would  divulge the entire episode and then not only Muthu  but his  parents will  also be in trouble. It is Mohan’s master-mind  which was  responsible for the ultimate act of  brutal killing  of the boy and it is he who directed Muthu to  catch hold of the legs of the boy so that he could easily strangulate the boy with the rope. It is he who mixed some poison  with Rasna  and gave  it to the boy and the boy also drank  it having  full faith  on him  and became almost motionless. Even  after the  boy vomitted  twice and  became tired it is Mohan and his brother Gopi who persuaded the boy to play  the game  of tieing and untieing the hands and legs and when  the boy agreed to play the game they not only tied the hands  and legs of the boy but also tied the rope around his neck  and pulled  the rope from both ends. At 11.00 p.m. of the  fateful night it is Mohan who told the other accused persons that  the time  is  running  fast  and  they  should complete the work. It is at that point of time Gopi, brother of Mohan  tied the  right hand  of the  boy and when the boy could not  untie the  rope Mohan stood on the left hand side and suddenly  encircled the rope around the neck of the boy.

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Gopi pulled  one end  of the  rope by  standing on the right hand side of the boy while Mohan pulled the other end of the rope by  standing on the left hand side and at the same time Mohan took  out a  kerchief from  his pant pocket and gagged the boy with the kerchief. When the boy struggled for breath by jerking his hands and legs, Mohan folded his left leg and with the  knee pressed  the kerchief  which was  put in  the mouth. In a couple of minutes the body became motionless.      So far  as appellant Gopi is concerned, he not only did participate by  pulling the rope around the neck of the boy, as already  narrated, but  went to  his house  and brought a coir rope.  After removing the rope from the neck of the boy he encircled  the coir  rope again around the boy’s neck and pulled the  said rope  for about  1/2 a  minute and  the boy stopped breathing.  Thereafter he  took out one Keltron T.V. Box from  underneath the  cot and packed the boy in the box. These aggravating circumstances on the part of accused Mohan and Gopi  clearly demonstrate  their depraved  state of mind and the  brutality with  which they took the life of a young boy. It  further transpires  that after  killing the boy and disposing of  the dead  body of  the boy, Mohan also did not lose his lust for money and got the ransom of 5 lakhs.      In view  of  the  aforesaid  aggravating  circumstances appearing as  against appellant Mohan and appellant Gopi who happened to  be the  brother we cannot but confirm the death sentence awarded against them which has been affirmed by the High Court.  Accordingly the appeals of appellants Mohan and Gopi are dismissed.      So far as appellants Muthu and Pushparaj are concerned, we  are  of  the  considered  opinion  that  the  mitigating circumstances, as  already narrated  clearly  do  not  bring their case  to be  the rarest  of rare case and do not bring their activities  to be either diabolical or act of depraved mind warranting  the extreme  penalty of  death sentence. We would accordingly  hold  that  the  death  sentence  awarded against appellant Muthu @ Muthuraman and appellant Pushparaj is not warranted and we commute the same to imprisonment for life.      These appeals are disposed of accordingly.