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SUPREME COURT OF INDIA
K.S. Radhakrishnan, Vikramajit Sen, JJ.
Birju - Appellant
Versus
State of M.P. - Respondent
CRIMINAL APPEAL NOs.1352-1353 OF 2012
Decided On : February 14, 2014.
(2013) 5 SCC 546 – Relied upon
(b) Indian Penal Code, 1860 – Section 320 – Accused having criminal antecedents of involvement in offences of murder and other offences – Not convicted in case – Firing at vulnerable part of body of one year old child on his grandfather’s refusal of giving money for liquor – Had knowledge that the shot would result in death of the child – Conviction upheld. (Para 19)
(2013) 5 SCC 546; (1980) 2 SCC 684; (1983) 3 SCC 470; (2012) 4 SCC 37 – Relied upon
(c) Indian Penal Code, 1860 – Section 302 – Conviction upheld – Accused menace to society – Sentence – Not rarest of rare cases – Sentence of 20 years of rigorous imprisonment, without remission, over the period which he has already undergone awarded. (Para 20, 21)
(2008) 13 SCC 767; (2013) 10 SCC 631 – Relied upon
Facts of the case:
PW1, the complainant was standing at a grocery shop holding his grandson, Arman, aged one year in his arms. The accused-Birju came out there on a motorcycle. He went to Babulal and demanded Rs.100/- for consuming liquor. Babulal expressed his inability to give the money, on which, the accused abused him and took out a country made pistol from his pocket and shot, which hit on the right temporal area of infant- Arman eventually killing him.
The accused was convicted under Section 302 IPC, read with Section 27 of the Arms Act, 1959 and awarded to death sentence which was affirmed by the High Court.
Finding of the Court:
This is not a rarest of rare cases.
Result: Conviction upheld, sentence modified.
Key Points: - The crime test, criminal test, and R-R test must be properly applied for awarding capital sentence (!) . - Involvement in a large number of criminal cases, including murder, without conviction, is not itself an aggravating circumstance for capital punishment (!) . - Evidence of criminal antecedents may be relevant, but only final convictions can be considered as aggravating factors (!) . - A cold-blooded murder with no mitigating factors may satisfy the rarest of rare category, but the accused’s criminal record alone does not automatically make it so (!) . - If the case does not fall under rarest of rare, the death sentence should be set aside and replaced with life imprisonment (!) . - Twenty years of rigorous imprisonment without remission can be an adequate sentence if the case does not warrant capital punishment (!) .
JUDGMENT : -
K.S. Radhakrishnan, J.
1. We are, in this case, concerned with the killing of a child aged one year who was in the arms of PW1, the grand-father, for which the accused was awarded death sentence by the trial court, which was affirmed by the High Court and these appeals have been preferred by the accused against the judgment of conviction and sentence awarded to him for the offences under Section 302 of the Indian Penal Code, read with Section 27 of the Arms Act, 1959.
2. The prosecution case, in short, is as follows:
PW1, the complainant was standing at the grocery shop of Kamal Bansal (PW2) on 13.12.2009 at about 8.15 PM for purchasing some goods. He was holding his grandson, Arman, aged one year in his arms. PW4, Jagdish, was also standing in front of the said shop. The accused-Birju, resident of the same locality, known as Rustam Ka Bagicha, came out there on a motorcycle. After parking the motorcycle, he went to Babulal and questioned him as to why he was standing there. Babulal replied that he had come to purchase some kirana. While so, the accused-appellant demanded Rs.100/- for consuming liquor. Babulal expressed his inability to give the money, on which, the accused abused him in the name of his mother and took out a country made pistol from his pocket and shot, which hit on the right temporal area of infant- Arman. Persons of the locality, which included Rakhi, daughter of the complainant, her aunt-in-law Sharda Bai and few other inhabitants of the area, reached the spot after hearing the sound. Son-in-law of the complainant, Jeevan, took Arman to the hospital and PW1 immediately reached the police station and lodged the first information report.
3. PW 12, the Station House Officer, reached the spot and prepared a spot map (Ext.P/2) and seized the blood stained shirt of complainant Babulal vide seizure memo (Ext.P/3). Empty cartridge, motorcycle and used bullet were seized from the spot vide seizure memo (Ext.P/6). Inquest report (Ext.P/8) was prepared on the dead body, which was then sent for post-mortem examination. PW10 Dr. A.K. Langewar conducted the post-mortem examination.
4. The accused was later nabbed and from his possession pistol was recovered and seized articles were sent for examination to the Forensic Science Laboratory, Tamil Nadu vide Ext.P/18-A. The investigation officer recorded the statements of witnesses and completed the investigation and the accused was charge-sheeted under Sections 302, 327 and 398 of the IPC and Sections 25 and 27 of the Arms Act, 1959.
5. The prosecution examined 12 witnesses and produced 19 documents and none was examined on the side of the defence.
6. As already indicated, after appreciating the oral and documentary evidence, the trial court found the accused guilty and held that the case of the accused falls under “rarest of rare” category and awarded capital punishment, which was affirmed by the High Court. The accused was also convicted under Section 27 of the Arms Act and was sentenced to rigorous imprisonment for three years and a fine of Rs.1000/-, which was also affirmed by the High Court.
7. Mr. Rana Ranjit Singh, learned counsel appearing for the appellant, submitted that the case on hand is not the one which falls in the category of “rarest of rare” warranting capital punishment. Learned counsel pointed out that even if the entire prosecution case is accepted, the offence would be covered under Section 304 Part II IPC. Learned counsel also pointed out that the accused had no intention to kill either PW1 or the child. The accused, at best, was under extreme mental or emotional disturbance and there will be no occasion for him to indulge in similar offence in future, and the possibility of accused being reformed could not be ruled out. Learned counsel also submitted that the trial court and the High Court have committed an error in awarding the death sentence on the ground that the accused was involved in various other criminal cases which, according to the coun
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