“Mankind has shifted from the state of nature towards a civilized society and it is no longer the physical power of a litigating individual or the might of the ruler nor even the 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 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 prosecutor is given an opportunity of supporting the charge and the accused is equally given an opportunity of meeting the accusations by establishing his innocence. It is the outcome of cool deliberations and the screening of the material by the informed mind of the Judge that leads to determination of the lis…”
(a) acquitted A-1 Nanhe Yadav @ Dina Yadav, A-10 Nanhak Teli, A-11 Naresh Chamar and A-12 Ramashish Mahto;
(b) convicted A-5 Bir Kuer Paswan, A-8 Krishna Mochi, A-9 Dharmendra Singh @ Dharo Singh, A-13 Nanhe Lal Mochi and sentenced to death;
(c) convicted A-2 Bihari Manjhi, A-1 Ramautar Dusadh @ Lakhan Dusadh, A-6 Rajendra Paswan, A-7 Wakil Yadav and imposed life imprisonment;
(d) convicted A-3 Ravindra Singh and imposed RI for ten years. He has not filed any appeal.
1. the identification of the accused is not reliable one;
2. even if it is held that accused were present in the mob of 600-700 persons, there is no justifiable reasons for connecting the accused with the crime;
3. no witness has stated that accused were armed with any deadly weapons;
4. no witness has stated that any of the accused took part in murder of any of the deceased or of causing any injury to any witness or setting fire to the houses;
5. there is no recovery of any arms or any incriminating articles from any of the accused;
6. the statements of witnesses are recorded after long lapse of time, mostly after more than 20-22 days;
7. all the witnesses are ‘got up’ witnesses.
8. none of the witnesses stated that accused were members of Maoists Community center–an extremist group;
9. in any set of circumstances, presuming that accused are identified but mere presence in the mob would not justify imposition of death sentence.
(1) It is apparent that the investigation in the present case is totally defective. The investigating officers have not taken any care and caution of recording the statement of witnesses immediately. No identification parade of accused was held. Investigating officer is not examined. As observed by this Court in Jamuna Chaudhary and Ors. v. State of BiharMANU/SC/0119/1973 : 1974CriLJ890 , it should not be forgotten that the duty of the Instigating Officers is not merely to bolster up a prosecution case with such evidence as may enable the Court to record a conviction but to bring out the real unvarnished truth. In the said case, the Court has also observed–where neither the prosecution nor the defence come out with the whole and unvarnished truth to enable the Court to judge where the rights and wrongs of the set of incidents lay, the courts can only try to guess or conjecture to decipher the truth if possible. But this may be done within limits to determine whether any reasonable doubt emerges on any point under consideration from proved facts and circumstances of the case. Further, this Court in Kishore Chand v. State of Himachal PradeshMANU/SC/0374/1990 : 1990CriLJ2289 observed that–indulging in free fabrication of the record is a deplorable conduct on the part of an investigating officer which undermines the public confidence reposed in the investigating agency. Therefore, greater case and circumspection are needed by the investigating agency in this regard. It is time that the investigating agencies evolve new and scientific investigating methods, taking aid of rapid scientific development in the field of investigation. It is also the duty of the State, i.e. Central or State Governments to organise periodical refresher courses for the investigating officers to keep them abreast of the latest scientific development in the art of investigation and the march of law so that the real offence would be brought to book and the innocent would not be exposed to prosecution.
(2) It is also settled law that when accused are charged with heinous brutal murders punishable to the highest penalty prescribed by the Penal Code, the judicial approach in dealing with such cases has to be cautious, circumspect and careful. In case of defective investigation, the Court can rely upon the evidence led by the prosecution and connect the accused with the crime if found reliable and trustworthy. In Dilavar Hussain v. State of Gujarat MANU/SC/0015/1991 : 1991CriLJ15 , this Court dealt with a communal riot case which was considered by the court as tragic trauma of ghastly, inhuman and beastly behavior of one community against another where burning, looting and killing became the order of the day, and observed–
“But sentiments or emotions, howsoever strong, are neither relevant nor have any place in a court of law. Acquittal or conviction depends on proof or otherwise of the criminological chain which invariably comprises of why, where, when, how and who…..
Misgiving, also, prevailed about appreciation of evidence. Without adverting to submissions suffice it to mention that credibility of witnesses has to be measured with same yardstick, whether, it is ordinary crime or a crime emanating due to communal frenzy. Law does not make any distinction either in leading of evidence or in its assessment. Rule is one and only one namely, whether depositions are honest and true…..”
(3) In the present case, it can be said without any doubt that almost all witnesses have exaggerated to a large extent by naming number of persons as accused but they could identify only one or two accused. This would clearly reveal that for one or other reason, witnesses were naming number of persons as accused who were not known to them or whom they had not seen at the time of incident. In that set of circumstances, their evidence to a large extent becomes doubtful and/or tutored.
(4) Nowhere the witnesses assign any specific role to the accused, except their presence in the mob at the time of offence.
(5) The witnesses nowhere state that identified accused were having any weapon of offence.
(6) Investigating officers have not recovered any weapon of offence or any incriminating article from the possession of any of the accused.
“…..where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable. Therefore, we do not think that any grievance can be made by the appellants against the adoption of this test. If at all the prosecution may be entitled to say that the seven accused persons were acquitted because their cases did not satisfy the mechanical test of four witnesses, and if the said test had not been applied, they might as well have been convicted. It is, no doubt, the quality of the evidence that matters and not the number of witnesses who give such evidence. But sometimes it is useful to adopt a test like the one which the High Court has adopted in dealing with the present case.”[Emphasis added]
“…..As mere proposition of law, it would be difficult to accept the argument that the sentence of death can be legitimately imposed only where an accused person in found to have committed the murder himself. Whether or not sentences of death should be imposed on persons who are found to be guilty not because they themselves committed the murder, but because they were members of an unlawful assembly and the offence of murder was committed by one or more of the members of such an assembly in pursuance of the common object of that assembly, is a matter which has to be decided on the facts and circumstances of each case. In the present case, it is clear that whole group of persons belonged to Laxmi Prasad’s faction, joined together armed with deadly weapons and they were inspired by the common object of exterminating the male member in the family of Gayadin. 10 of these persons were armed with fire-arms and the other with several other deadly weapons, and evidence shows that five murders by shooting were committed by the members of this unlawful assembly. The conduct of the members of the unlawful assembly both before and after the commission of the offence has been considered by the courts below and it has been held that in order to suppress such fantastic criminal conduct on the part of villagers it is necessary to impose the sentences of death on 10 members of the unlawful assembly who were armed with firearms. It cannot be said that discretion in the matter has been improperly exercised either by the trial Court or by the High Court. Therefore, we see no reason to accept the argument urged by Mr. Sawhney that he test adopted by the High Court in dealing with the question of sentence is mechanical and unreasonable.”[Emphasis added]
I. 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. For instance, when the house of the victim is set aflame with end in view to roast him alive in the house, when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death; and when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.
II. When the murder is committed for a motive which evinces total depravity and meanness. For instance when a hired assassin commits murder for the sake of money or reward or a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murdered is in a dominating position or in a position of trust, or a murder is committed in the course for betrayal of the motherland.
III. When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances etc., which arouse social wrath. For instance when such a crime is committed in order to terrorise such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance. In cases of ‘bride burning’ and what are known as ‘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.
IV. 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.
V. When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.
(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. In other words 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 weight age and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
(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?
(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.
x x x x x x x x x x
(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.