IMPORTANT POINTS
1. In awarding sentence of death, though number of uictims by itself is not a yardstick to discern a case of the category of the rarest of the rare cases, nonetheless number of victims is not altogether outside the scope of consideration and should not be marginalised in appropriate cases.
2. In a case Involving death of 23 passengers in a bus by setting the bus ablaze, when human mind was allowed to be transformed itself into a demonic form and the planned programme was executed with extreme depravity, this is one of the rarest of the rare cases in which death sentence only to be awarded.

Headnote:Indian Penal Code, I860-Sections 302, 392, 341, 440 and 120-B-Conviction under - Death sentence - Appeal-Prosecution case that a bus with passengers was put to" flames- Overwhelming evidence to support conclusion concurrently reached by two courts that appellants were persons who set the bus ablaze-Dying declaration recorded by Judicial Magistrate implicating appellants-No reason to disturb conviction of appellants under different offences passed by Trial Court and confirmed by High Court-This being one of the rarest of the rare cases in which alternative option is foreclosed-Award of death penalty justified.
       Held : True, number of victims by itself is not a yardstick to discern a case of the category described by the Constitution Bench in Bachan Singh s case, (1980) 2 SCC 684. Nonetheless number of victims is not altogether outside the scope of consideration and should not be marginalised in appropriate cases. (Para 19)
       Bearing in mind the principles governing the sentencing policy, particularly the death sentence, we have considered the overall picture in this case. We have no doubt that this is one of the rarest of the rare cases not merely because of, the record number of innocent human beings roasted alive by the appellants but by the inhuman manner in which they have plotted the scheme and executed it; What they needed, perhaps, was only wealth by plundering others. For that motive they designed a scheme with the highest proportion of viciousness. Carrying most inflammable liquid in a cane together with a match box they speaked into a passenger bus during the dawn of the ill-fated day. None of the harmless faces of the unfortunate passengers, not even those of some cute children-in the bus, had deterred these appellants from incinerating them into charred corpses in a split second. When human mind was allowed to be transformed itself into such demonic form and the planned pogrom was executed with extreme depravity, we have no hesitation to agree with the courts below that this is one of the rarest of the rare cases in which alternative option is unquestionably foreclosed. (Para 20)
       (ii) Evidence Act, 1872-Section 6-Rule of res gestae--Exception to general rule that hearsay evidence is not admissible-Spontaneity and immediacy of such statement or fact in relation to fact in issue-Such fact or statement to be admissible u/s 6 must be part of same transaction-If there was an interval, however slight it may be, then statement is not part of res gestae.
       Held: The principle of law. Embodied in Section 6 of the Evid ence Act is usually known as the rule of res gestae recognised in English Law. The essence-of the doctrine is that a fact which, though not in issue, is.so.connected with the fact in issue "as to form part of the same transaction" becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But iUs -necessary that such fact or statement must be part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or atleast immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae. (Para 12)
       Here, there was some appreciable interval between the acts of incenciarism indulged in by the miscreants and the Judicial Magistrate recording statements of the victims. That interval, therefore, blocks the statement from acquiring legitimacy under Section 6 of the Evidence Act. High Court was, therefore; in error in treating Exts. P-71 and P-75 as forming part of res gestae evidence.(Para 13)
       (iii) Evidence Act, 1872-Sections 32 and 157-Statement given to a Magistrate by someone under expectation of death-Evidentiary value.
       Held : Though the statement given to a Magistrate by someone under expectation of death ceases to have evidentiary value under Section 32 of the Evidence Act if the maker thereof did not die, such a statement has, nevertheless, some utility in trials. It can be used to corroborate this testimony in court under Section 157 of the Evidence Act which pe rmits such use, being a statement made by the witness "before any authority legally competent to investigate". The word "investigate" has been used in the section in a broader sense. Similarly the words "legally competent" denote a person vested with the authority by law to collect facts. A Magistrate is legally competent to record dying declaration "in the course of an investigation" as provided in Chapter XII of the Code of Criminal Procedure, 1973. The contours provided in Section 164(1) would cover such a statement also. However, such a statement, so long as its maker remains alive, cannot be used as substantive evidence. Its user is limited to corroboration of contradiction of the testimony of its maker. (Para 14)
       (iv) SENTENCING-Legal principles-Death sentence-Number of victims by itself-Not a yardstick to, discern a case of category of rarest of rare* cases-However, number of victims is not altogether outside the scope of consideration and should not be marginalised in appropriate cases. (Para 19)

JUDGMENT

Thomas, J.-This is a case involving death of 23 passengers in a bus. When the Super Express Bus set out its journey from Hyderabad to the terminal Chilakaluribet, none of the passengers nor its driver nor the conductor had any foreboding that the vehicle was heading to a very norrendous tragedy on route. The vehicle was set on fire and 23 passengers were roasted to death, besides a number of other passengers sustained serious burns. The two appellants before us were arraigned for converting the stage carriage into a wheeled inferno motivated by lust for wealth by robbing the passengers. Trial court convicted them and sentenced them to the extreme penalty under law. High Court confirmed the conviction and sentence. They have come up with this appeal by special leave.

2. More details of the case :

On the fateful day (8.3.1993) the uper

Express Bus was driven by PW-6 Lakshmnarayana for operating service on the route Hyderabad - Chilakaluribet. The bus reached near a railway level crossing at Narasaraooet around 4.30 A.M. where it stopped to let two more passengers to board the bus which was already reblete with passengers. Just after the bus was in motion again, PW-6 sensed smell of petrol and so he stopped the vehicle to verify the cause of it. Second appellant (Challabathy Rao) was pousing petrol inside the bus. First appellant (Vijayavaradhan Rao) had by then moved out of the bus and was ready with a match box. The fear-stricken passengers sorang on their feet and started making tantrums. Then second appellant exported the first appellant to get down after lighting the match stick which was implicitly carried out and the automobile was in flames in a trice.

A handful of passengers could wiggle out of the blazing vehicle in their thirst to live by escaping fro m the talons of fire. One of them (Baburao - PW-5) was chased by the first appellant and was caught. His trousers (pants) containing some cash in the pocket were forcibly grabbed by the first-appellant out in turn he supplied his half burnt pants to PW-5 obviously to cover up nudity. During the same time second appellant chased another passenger (PW-1) and succeeded in intercepting him after covering some distance, and he robbed the wrist watch and case for Rs. 700/- from the victim. The culprits then escaped from the scene with the booty which apparently was a modicum for this dastardly exercise.

At the scene of occurrence, rescue operations were briskly picked up at the instance of PW-6 (driver of the-bus). However, a large number of passengesrssuccunibed to extensive burns sustained in the incendiarism, though a few could survive for some more days but only. to narrate their woeful tale to others. There were a, few passengers who sustained less serious burns and some of them figured as witnesses in this case during trial.

3. Police registered the crime case on the strength of the information furnished by PW-1. Appellants were arrested on 18.3.1993 and some incriminating articles were recovered pursuant to the information elicited by the police during interrogation. A test identification parade was conducted by PW-49, a judicial magistrate. In which the appellants were identified by some of the witnesses.

4. After trial both appellants were found. guilty under Sections 302, 307, 392, 341, 440 and 120-B IPC. For the offence of murder and criminal conspiracy, learned Sessions Judge sentenced both appellants to death penalty. For the offence under Section 307 and Section 392, he sentenced them to imprisonment for life. and R.I. for 10 years, respectively. Short term imprisonment was awarded to both the appellants for the remaining minor offences.

5. A Division Bench of the Andhra Pradesh High Court heard the reference made by the Sessions Judge for confirmation of the death sentence, along with the appeal filed by the appellants, in challenge of the conviction and sentence. High Court confirmed the conviction and sentence and dismissed the appeal. The reference was

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1996 Supreme(SC) 1339

Cases Referred (4)