2000 Supreme(Guj) 437

Gujarat High Court
Judgename :M.R.CALLA, R.R.TRIPATHI
TRIKAMBHAI - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL913 of 1999
Decided On : 05/10/2000

Headnote:Criminal Procedure Code, 1973 (2 of 1974) - Secs. 28(2), 366(1), 235(1)(2) - [Indian] Penal Code, 1860 - Secs. 363, 376(2)(f), 451, 302 & 201 - Confirmation of death sentence - Court found - No eye witness to the offence - Sample semen of accused could not be compared with - Prosecution could have conducted the DNA test - Since saliva on bud of bidi, button is resembling that of accuseds button on muddmal shirt and statement of accused in medico-legal certificate corroborative of the circumstances Court sustained the conviction - However, considering the mitigating circumstances Court altered the sentence of death to that of life imprisonment with no set-off of period inferred during trial - Death sentence not confirmed.

       Court find that on the one hand there are aggravating circumstances with regard to the rape and murder of a minor girl of about 5 years of age, who was totally unprotected as also the brutality and the depravity with regard to the manner in which the crime has been committed and on the other hand there are mitigating circumstances that the accused is a boy of 20 years, i.e., in the age of adolescence, he is not a hardened criminal with any criminal record in past, his father had already expired, seeming to be ignorant of social and moral values, cannot be said to be menace to the society, it appears to be a case of impulsive bravado of sex and that he wanted to satisfy his sexual urge on the date of the incident and in the process the murder was also committed. The scope and concept of mitigating factors to determine as to whether the death penalty is warranted or not have to be given a liberal and extensive construction after according maximum weightage to the mitigating circumstances.

       [Para 30]

       Court has upheld conviction of the present appellant solely on the basis of the circumstantial evidence with corroboration of button and saliva on bidi bud etc. coupled with his own say before P.W. 2 Dr. Khadayate and Court does not find it safe in the facts and circumstances of this case to confirm the extreme penalty of death sentence. It cannot be said in the facts of this case that there is some such thing which can be said to be so uncommon about the crime so as to render the sentence of imprisonment for life to be inadequate and that it is a case which calls for death sentence. Similarly giving maximum weightage to the mitigating circumstances also, it cannot be said in the facts of the present case that circumstances of the crime in this case leave no alternative but to impose the death sentence. Therefore, Court does not find this case to be that rarest of rare case in which the alternative of the punishment of life imprisonment is unquestionably foreclosed. Appellant, who is a young boy of 20 years, has a long way to go and since he is not a hardened criminal and has not precipitated any crime in past and has not exhibited any criminality in his behaviour prior to the commission of this offence, the probability that he can be reformed and rehabilitated cannot be ruled out. On consideration of the circumstances of this case in totality, the evidence on which we have upheld the conviction and the consideration of the aggravating circumstances and the mitigating circumstances, the balance certainly tilts in favour of opting for the penalty of life imprisonment.

       [Para 31]

       The death sentence, as has been awarded to the present appellant, is not confirmed and the penalty of death sentence awarded to the appellant is altered and commuted to that of life imprisonment. The reference with regard to confirmation of death sentence is answered accordingly and the Appeal against the conviction fails. Whereas the appellant is sentenced to life imprisonment, the sentence of death, as ordered by the trial Court, is set aside and to that limited extent the Appeal is allowed and the slight modification is also made in the order of the trial Court with regard to the set off given by the trial Court under Sec. 428 CrPC for the period for which the accused-appellant remained in Jail during trial and it is ordered that the appellant shall not be entitled to such set off for the period during which he remained in jail during the course of trial under Sec. 428 of the CrPC, because it is a case of sentence of life imprisonment to the appellant and in case of life imprisonment such set off is not to be given.

       [Para 32]