1994 Supreme(SC) 472

SUPREME COURT OF INDIA
(BEFORE DR A.S. ANAND AND FAIZAN UDDIN, JJ.)
Criminal Appeal Nos. 47-50 of 1994
ANSHAD AND OTHERS
Versus
STATE OF KARNATAKA
With
Criminal Appeal Nos. 51-52 of 1994
SHASHI ALIAS SHASHIDHARAN
Versus
STATE OF KARNATAKA
Criminal Appeal Nos. 47-52 of 1994{From the Judgment and Order dated 16-11-1993 of the Karnataka High Court in Crl. A. No. 217 of 1992 C/W 221 of 1992}, decided on April 22, 1994
Advocates appeared :
Naresh Kaushik, Shankar Divate and Ms Lalit Kaushik, Advocates, for the Appellants;
P.S. Poti, Senior Advocate (Ms Malini Poduval, Advocate, with him) for the Respondent.

Headnote:(i) Indian Penal Code, 1860 - Section 302/ 34 r/ws 394/34 and 379/34 - Conviction for offence of murder as also for committing robbery and theft of the articles belonging to the deceased - Medical evidence, evidence of finger print expert and recovery of, the property directly and positively connect AI, A2 and A3 with crime - Their conviction u/s. 302/34 r/ws 394/34 and 379/34 is legally sustainable.

       Held: The prosecution case regarding their complicity in the crime has been brought out from the evidence of the prosecution witnesses including the injured witnesses P.W. 2 and P.W. 3. Their testimony with regard to the involvement of Al to A3 in the crime his remained totally unshaken during the cross- examination. The other evidence led by the prosecution including the manner in which A 1 falsely introduced A2 and A3 to the deceased and how taking advantage of the confidence he had built up with her, he not only secured his entry but also the entry of A2 and A3 into her house and gave their false introduction to her has been proved in the case beyond every reasonable doubt. The medical evidence, the evidence of the fingerprint expends and the evidence of the recovery of the property belonging to the deceased directly and positively connects A1 A2 and A3 with the crime. (Para 9)

       Further held: Indeed with the acquittal of A4 and AS, the conviction of A1, A2 and A3 for an offence under Section 396 IPC cannot stand because the number of accused would in that case be less than five. However, the evidence on the record does show that all the three accused A1, A2 and A3 are responsible for the murder of Savitri Devi and Sunil as also for committing robbery and theft of the anises belonging to the deceased in the manner suggested by the prosecution. No challenge to the recovery of the ornaments and other articles was made and rightly so, in the face of the cogent, reliable and positive evidence produced by the prosecution. The appellants A 1 to A3 in our opinion can safely be convicted for an offence under Section 302/34 IPC read with Sections 394134 and 379/341.P.C. (Para 12)

       (i) Indian Penal Code, 1860 - Section 411 - Murder with robbery and theft - A4 and A5 were found in possession of a wrist watch and a gold ring belonging to the deceased - Not sum dent material to hold them guilty of being participant in the crime of murder - A4 and A5 held guilty u/s. 411 of the Code.

       (ii) Sentence - lndian Penal Code, 1860 Section 302/34 r/ws 394/34 and 379/34 - Conviction under - Al to A3 had gone to the house of the deceased without any weapon. Eyewitnesses PW 2 and P.W. 3 not killed - Nothing to show that they acted in an exceptionally brutal or cruel manner while committing murder - No evidence to show as to which out of the three appellants strangulated which of the two deceased -, Deceased died after the appellants had left - They to be imposed sentence of life imprisonment - sentence of death set aside.

       Held: The manner in which the learned Sessions Judge dealt with the question of sentence under Section 235(2) Cr. P.C. leaves much to be desired. The object for which Section 235 (2) Cr. P.C. was brought on the statute book appears to have been completely ignored by him. We disapprove the manner in which he decided the question of imposition of sentence in a rather cryptic manner. It exposes lack of sensitiveness on his part while dealing with the question of sentence. We need say no more on this topic so far as the learned Sessions Judge is concerned we have perused the reasons given by the High Court for awarding the sentence of death. Apart from referring to some of the "aggravating circumstances" like the betrayal of confidence of the deceased by Al and murder for committing robbery on a helpless widow, the High Court only referred to some of the judgments of this court and then almost abruptly came to the conclusion that the sentence of death was called for in the instant case. We notice with regret that the High Court did not take into account any of the mitigating circumstances at all. Courts are expected to exhibit sensitiveness in the matter of award of sentence particularly; the sentence of death because life once lost cannot be brought back. This court has in cases more than one emphasized that for determining the proper sentence in a case like this while the court should take into account the aggravating circumstances it should not over look or ignores the mitigating circumstances. The manner in which the crime was committed, the weapons used and the brutality or the lack of it are some of the considerations, which must be present to the mind of the court. Of course, the High Court has the power and jurisdiction to enhance the sentence of life imprisonment to death but that power has to be sparingly exercised, in "rarest of the rare cases" for special reasons to be recorded. The courts must be alive to the legislative changes introduced in 1973 through Section 354 (3) Cr. P.C. Death sentence, being an exception to the general rule, should be awarded in the "rarest of the rare cases" for special reasons to be recorded after balancing the aggravating and the mitigating circumstances, in the facts and circumstances of a given case. The number of persons murdered is a consideration but that is not the only consideration for imposing death penalty unless the case falls in the category of "rarest of the rare cases". The courts must keep in view the nature of the crime, the brutality with which it was executed, the antecedents of the criminal, the weapons used etc. It is neither possible nor desirable to catalogue all such factors and they depend upon case to case. (paras 13 & 14)