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CASE NO.: Appeal (crl.)  947 of 2003

PETITIONER: Sushil Murmu                                             

RESPONDENT: State of Jharkhand                                       

DATE OF JUDGMENT: 12/12/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT,J

       The little drops of humanness which conjointly make humanity a  cherished desire of mankind had seemingly dried up, when        a young  child of 9 years was sacrificed before Goddess Kali by the appellant for  his own prosperity is what the prosecution alleges.   

"Little drops of  Water, little grains of sand,’ Make the mighty ocean And the pleasant land, Little deeds of kindness, little Words of love, Help to make earth happy Like the heaven above."

Said Julia A.f. Cabney in "Little Things".

       The still, sad music of humanity had become silent when it was  forsaken by the accused-appellant is what has been found by the Courts  below.     11th December, 1996 turned out to be a heart-breaking day for  Somlal Besra (PW-2). In the evening of that day he found his son Chirku  Besra (hereinafter referred to as ’the deceased’) missing from house. He  searched for him making inquiries from various persons. Information  surfaced that he was sacrificed before Goddess Kali by the appellant.   Two other persons, his wife and mother were also said to be parties to  the gruesome killing. The prosecution case centered round extra judicial  confession made by accused before large number of persons, recovery of  dead body at the behest of the accused-appellant and evidence of a  witness who saw the accused carrying a bag on a bicycle which was thrown  to a pond and after throwing the bag to the pond the accused returning  by bicycle. The severed head was recovered from the bag thrown to the  pond. Information was given to police, investigation was undertaken.   All the three accused persons were tried for offences punishable under  Sections 302 and 201 of the Indian Penal Code, 1860 (for short ’the  IPC’). The appellant was found guilty for both the accusations and was  sentenced to death for the former and 7 years rigorous imprisonment for  the latter. Benefit of doubt was, however, given to the co-accused and  they were acquitted.  Reference was made by the trial Judge i.e. the  First Additional Sessions Judge, Jamtara for confirmation of death  sentence under Section 366 of the Code of Criminal Procedure, 1973 (in  short ’the Code’) by the Jharkhand High Court which by the impugned  judgment upheld both the convictions and sentence.  It was held that the

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murder was gruesome and death sentence was most appropriate sentence.   Against the said judgment the present appeal has been filed.  While  granting leave, by order dated 4.8.2003 scope of appeal was limited to  the question of sentence.   

       Mr. Anil Kumar Mittal, learned amicus curiae submitted that even  according to prosecution killing was not done with any motive. Though  superstition is not expected and encouraged in modern society, yet an  illiterate and tribal born and brought up in an atmosphere surcharged  with superstition should not be awarded death sentence. The modern  trend, according to him, is reformation and when in the case at hand  balance sheet of aggravating and mitigating circumstances is drawn up,  the mitigating circumstances far outweigh the aggravating situation and,  therefore, the death sentence should be altered to life sentence.   

       In response, learned counsel for the respondent-State submitted  that a 9 years old child was sacrificed in the most brutal and diabolic  manner.  This is a case which falls within the "rarest of rare"  category and, therefore, death sentence has been rightly awarded.  It  was pointed out that it is not the first instance when the accused is  charged with commission of such offences.  In fact, as records reveal,  the appellant along with two of his relatives was facing trial at the  relevant time for committing murder by sacrificing of his own brother  before Goddess Kali.                                                     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.

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

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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.

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.

This Court in Ediga Anamma v. State of A.P. (1974 (4) SCC 443) has  observed : (SCC pp. 453-54, para 26)

"26. Let us crystallize the positive  indicators against death sentence under Indian law  currently. Where the murderer is too young or too  old, the clemency or penal justice helps him. Where  the offender suffers from socio-economic, 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 Section 302, read with Section 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, steel the  heart of the law for a sterner sentence.  We cannot  obviously feed into a judicial computer all such

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situations since they are astrological imponderables  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 of life."

In Bachan Singh v. State of Punjab  (1980 (2) SCC 684) it has been  observed that: (SCC p. 751, para 209)

"A real and abiding concern for the dignity of  human life postulates resistance to taking a life  through law’s instrumentality.  That ought not to be  done save in the rarest of rare cases when the  alternative option is unquestionably foreclosed."

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 order to apply these guidelines, inter alia, the following  questions may be asked and answered, (a) is there something uncommon  about the crime which renders sentence of imprisonment for life  inadequate and calls for a death sentence?; and (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?

Another decision which illuminatingly deals with the question of  death sentence is Machhi Singh v. State of Punjab (1983 (3) SCC 470).

In Machhi Singh (supra) and Bachan Singh (supra) cases the  guidelines which are to be kept in view when considering the question  whether the case belongs to the rarest of the rare category were  indicated.

In Machhi Singh case (supra) it was observed: (SCC p. 489, para  39)

The following questions may be asked and answered as a test to  determine the "rarest of the rare" case in which death sentence can be  inflicted:-

(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?     The following guidelines which emerge from Bachan Singh case  (supra) will have to be applied to the facts of each individual case  where the question of imposition of death sentence arises: (SCC p. 489,  para 38):-

(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

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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 rarest of rare cases when collective conscience of the  community is so shocked that it will expect the holders of the judicial  power centre to inflict death penalty irrespective of their personal  opinion as regards desirability or otherwise of retaining death penalty,  death sentence can be awarded. The community may entertain such  sentiment in the following circumstances:

(1)     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.   (2)     When the murder is committed for a motive which evinces  total depravity and meanness; e.g. murder by hired assassin for  money or reward or a cold-blooded murder for gains of a person  vis-‘-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.  (3)     When murder of a member of a Scheduled Caste or minority  community etc., is committed not for personal reasons but in  circumstances which arouse social wrath, or in cases of ’bride  burning’ or ‘dowry deaths’ or when murder is committed in order to  remarry for the sake of extracting dowry once again or to marry  another woman on account of infatuation.  (4)     When the crime is enormous in proportion.  For instance when  multiple murders, say of all or almost all the members of a family  or a large number of persons of a particular caste, community, or  locality, are committed.  (5)     When the victim of murder is an innocent child, or a  helpless woman or old or infirm person or a person vis-‘-vis whom  the murderer is in a dominating position or a public figure  generally loved and respected by the community.                                If upon taking an overall global view of all the circumstances in  the light of the aforesaid propositions and taking into account the  answers to the questions posed by way of the test for the rarest of rare  cases, the circumstances of the case are such that death sentence is  warranted, the court would proceed to do so.  A convict hovers between life and death when the question of  gravity of the offence and award of adequate sentence comes up for  consideration.  Mankind has shifted from the state of nature towards a  civilized society and it is no longer the physical opinion of the  majority that takes away the liberty of a citizen by convicting him and  making him suffer a sentence of imprisonment.  Award of punishment  following conviction at a trial in a system wedded to the rule of law is  the outcome of cool deliberation in the court room after adequate  hearing is afforded to the parties, accusations are brought against the  accused, the prosecuted is given an opportunity of meeting the  accusations by establishing his innocence.  It is the outcome of cool

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deliberations and the screening of the material by the informed man i.e.  the Judge that leads to determination of the lis.

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.         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  traffic 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.  

       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.            

       A bare look at the fact situation of this case shows that the  appellant was not possessed of the basic humanness and he completely  lacks the psyche or mind set which can be amenable for any reformation.  He had at the time of occurrence a child of same age as the victim and  yet he diabolically designed in a most dastardly and revolting manner to  sacrifice a very hapless and helpless child of another for personal gain  and to promote his fortunes by pretending to appease the deity.  The  brutality of the act is amplified by the grotesque and revolting manner  in which the helpless child’s head was severed. Even if the helpless and  imploring face and voice of the innocent child did not arouse any trace  of kindness in the heart of the accused, the non-challant way in which  he carried the severed head in a gunny bag and threw it in the pond  unerringly shows that the act was diabolic of most superlative degree in  conception and cruel in execution. The tendency in the accused and for  that matter in any one who entertains such revolting ideas cannot be  placed on par with even an intention to kill some but really borders on  a crime against humanity indicative of greatest depravity shocking the  conscience of not only any right thinking person but of the Courts of  law, as well. The socially abhorrent nature of the crime committed also  ought not to be ignored in this case.  If this act is not revolting or  dastardly, it is beyond comprehension as to what other act can be so  described is the question.  Superstition is a belief or notion, not  based on reason or knowledge, in or of the ominous significance of a  particular thing or circumstance, occurrence or the like but mainly  triggered by thoughts of self aggrandizement and barbaric at times as in  the present case. Superstition cannot and does not provide justification  for any killing, much less a planned and deliberate one.  No amount of

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superstitious colour can wash away the sin and offence of an unprovoked  killing, more so in the case of an innocent and defenceless child.         

       Criminal propensities of the accused are clearly spelt out from  the fact that similar accusations involving human sacrifice existed at  the time of trial. Though the result could not be brought on record, yet  the fact that similar accusation was made against the accused-appellant  for which he was facing trial cannot also be lost sight of.  In view of  the above position, we do not think this to be a fit case where any  interference is called for, looking to the background facts highlighted  above. This in our view is an illustrative and most exemplary case to be  treated as the ’rarest of rare cases’ in which death sentence is and  should be the rule, with no exception whatsoever.  Appeal fails and is  dismissed.

       We record our appreciation for the fair presentation and  assistance rendered by Mr. Anil Kumar Mittal, learned amicus curiae and  Mr. A.T.M. Rangaramanujam, learned Senior Counsel for the respondent- State who very ably highlighted the legal principles revolving round the  question of death sentence.