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PETITIONER: BULLU DAS

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT:       03/11/1998

BENCH: G T NANAVATI, S P KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:  JUDGMENT Nanavati. J. The appellant was cinvicted by the trial  court  for the  offence  punishable under Section 302 IPC and sentenced to death. The High Court confirmed the conviction  and  also the  death  sentence.  Co-accused - Doran Dass was convicted under Section 302 read with Section 120B IPC  and  sentenced to suffer imprisonment ofr life. His conviction and sentence were also confirmed by the High Court. Both the accused then filed  special  Leave  Petitions in this court for obtaining leave to appeal against the judgment and order passed by the High Court. The Special leave petition filed by  Doran  Dass was  dismissed.  Leave  was  granted to the appellant on the question of sentence only. Therefore, only point that we are required to consider in this appeal is whether the  sentence of deadt imposed upon the appellant is proper. For  awarding  the  death  sentence, the trial court gave the following reasons : 1)that the appellant committed murder of kusum Devi at the instance of Doran Dass and  on  payment  of  Rs. 10,000/-, 2)that  the appellant is a professional killer and 3)that the appellant is such a dare devil that he committed murder of Kusum Devi in broad day  light  on  a public street. It was of the view that such a  professional  killer does not deserve to remain in the world. On  the  question  of  sentence,  the High Court has observed as under :           "From the materials brought on  record,  I           have already indicated the cruel manner in           which  this appellant had committed murder           of a young and helpless lady  in  a  broad           day light  at a public place.  It has also           been proved  that  this  appellant  had  a           previous  history  of  committing  murder.           Therefore, having regard to the guidelines           enumerated by the Apex Court in  the  case           of Machhi Singh & Ors.  Vs State of Punjab

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         A.I.R.  1983  S.C.   957, there appears no           difficulty in concluding  that  this  case           falls  in  the  category  of  one  of  the           ’rarest of rare cases’ where death penalty           can be fully justified." Thus, the main reason which induced the trial  court and  the  High  Court to impose the extreme penalty of death was that the appellant  is  a  professional  killer  with  a previous history of committing murders. The  only  evidence  on  that  point consists of the depositions of Pw 5 - Arjun Das and PW 19  -  Sukumari  Devi and  the  confessional  statement  of  the appellant - Ex.5, recorded by Rakesh Kumar Brahamchari - PW 21.  Arjun Das has deposed that when he had tried to find out who had committed murder of Kusum Devi, he  had  come  to  know  that  it  was committed  by  Doran  Das  through  a professional killer on payment of money.  He did not say through whom  he  came  to know it.    He had no personal knowledge that Bullu Das, the appellant, is a professional killer.  PW 19 - Sukumari  Devi was declared hostile as she did not support the prosecution. She  was cross-examined by the learned Public Prosecutor and during that cross-examination ti was brought  out  that  she had  stated  before  the  police that people of the locality know that Bullu Das commits  murder  on  payment  of  money. This was brought on record by way of a contradiction.  Thus, the  statement  made by her that Bullu Das commits murder by taking money was not substantive evidence.         The confessional statement,  Ex-5,  stated  to  have been  made  by  the  appellant was before the Police Officer Incharge of the Godda Town Police Station where the  offence was  registered  in respect of the murder of Kusum Devi. The FIR was registered at the Police Station on 8.8.95 at  about 12.30  p.m.  On 9.8.95, after the appellant was arrested and brought  before  Rakesh   Kumar   that   he   recorded   the confessional  statement  of  the appellant. Surprisingly, on objection was taken by the defence  for  admitting    it  in evidence. The trial court also did not consider whether such a  confessional  statement is admissible in evidence or not. The High Court has also  not  considered  this  aspect.  The confessional  statement  was  clearly inadmissible as it was made by  an  accused  before  a  Police  Officer  after  the investigation had started.  Really, there was no evidence on record on the basis of  which  it  would  have been held that the appellant is a professional killer having a  previous  history  of  killing others   on  payment  of  money.  If  this  circumstance  is discarded  from  consideration,  then  the   rest   of   the circumstances do not make it a rarest of rare case. We,  therefore,  allow  this  appeal and modify the order of sentence passed  by  the  High  Court  by  substituting  the sentence  of imprisonment for life for the sentence of death imposed by the trial court and confirmed by the High Court.