IMPORTANT POINT
Rarest of rare cases and imposition of death penalty.

Judgment :-

K.S. Radhakrishnan, J.

1. Appellants, herein, were awarded death sentence by the trial court after having found them guilty under Sections 395, 396 and 397 of Indian Penal Code (for short ‘IPC’). They were sentenced to death by hanging under subsection 5 of Section 354 of Criminal Procedure Code for offences committed under Section 396 IPC. The trial court after noticing that, the accused persons came from a State about 2000 k.m. away from Tamil Nadu, held as follows:

“In this case, the accused came from a state about 2000 k.m. from our state and they did not think that the victims were also human like them but they thought only about the well being of their family and their own life and committed the fear of death amongst the common public of our state by committing robbery and murder for about 11 years. Therefore, this court is of the opinion that the death sentence that would be imposed on them would create a fear amongst the criminals who commit such crime and further this case is a rarest of rare case that calls for the imposition of death sentence.”

2. We have noticed that the trial Court, among other grounds, was also influenced by a speech made by the then Chief Justice of Tamil Nadu as well as a judgment delivered by another learned Judge of Madras High Court on rowdy panchayat system. Following that judgment and the provision under Section 396 IPC, the trial court held that the accused deserves no sympathy and he be sent to the gallows.

3. The trial court then placed the matter before the Madras High Court for confirmation of the death sentence awarded to the accused persons. Meanwhile, the accused persons also preferred criminal appeal No. 566 of 2006 against the award of death sentence. The appeal was partly allowed and conviction against Accused Nos. 1 and 2 under Sections 395, 396 and 397 IPC were confirmed but the sentence under Section 396 IPC was modified to that of life imprisonment instead of death sentence. Against which, accused Nos. 1 and 2 came up with this appeal. While this appeal was pending, the first appellant (A1) died and the second appellant (A2) has prosecuted this appeal.

4. The prosecution case is as follows:

The appellants and nine other absconding accused persons entered the house of one Lakshmi (PW 2) at 1 O’ clock in the night of 07.06.1995 with the intention of committing burglary with iron rods in their hands and burgled 17 tolas of gold and Rs.5,000/- in cash. In that process, it was alleged that they had strangulated Doctor Mohan Kumar, husband of PW 2 with a rope and thereby killed him. It was alleged that the accused assaulted PW 2, her son Sudhakar (PW 5) and other son Sakthivel (PW 6). While escaping, they had also attacked Bormin Varghese (PW 1) with iron rod. FIR Cr. No. 403 of 1995 under Sections 396, 397 IPC was registered at 5.30 am on 07.06.1995 at Police Station Walajapet on the statement of one Patrick Varghese recorded by PW 7. Post Mortem of the deceased was conducted at 2.30 p.m. on 07.06.1995.

5. The prosecution could not nab the accused persons for over ten years. A2 was arrested on 26.02.2005 in connection with some other case in Cr. No. 59 of 1996. It is the prosecution case that his finger prints tallied with the ones lifted from the place of occurrence in that other case. Further, it was also stated, as per the investigation, A2 made a disclosure and pursuant to that the iron rod (M.O. 1) used 10 years back was recovered.

6. A1 was arrested on 21.09.2005 by the special team in connection with some other case in Cr. No. 352 of 2004 of Sri Perumbatoor Police Station. An identification parade was conducted so far as A1 is concerned on 20.10.2005 in which PW 10, Karthik an Auto Driver said to have identified A1. Later, the charge-sheet was filed by PW 15 on 23.12.2005 and charges under Sections 395, 396 and 397 IPC were framed against the accused persons on 24.03.2006.

7. The prosecution examined 15 witnesses to prove the case against the accused persons. Statements