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SUPREME COURT OF INDIA
H. L. DATTU, SUDHANSU JYOTI MUKHOPADHAYA, M. Y. EQBAL, JJ.
Deepak Rai – Appellant
Versus
State of Bihar – Respondent
Criminal Appeal Nos.249-250 of 2011
Jagat Rai and ANR.
Versus State of Bihar
Criminal Appeal Nos.1747-1748 of 2011
Decided On : 19-09-2013
(1976) 4 SCC 298; (1976) 1 SCC 425; (1977) 3 SCC 68; (1981) 3 SCC 11; (2011) 13 SCC 706 - Distinguished
(b) Constitution of India - Article 136 and section 354(3), Cr.P.C. - Appellate jurisdiction under Article 136 is expansive and extraordinary - Not fettered by rules of criminal procedure - Appeal, including one under Article 136 is a continuation of original proceeding - Supreme Court can examine the reasons given by Courts below and even substitute its own. (Para 27)
(1999) 8 SCC 325; (2007) 6 SCC 517; (2000) 8 SCC 262 - Relied upon
(c) Code of Criminal Procedure, 1973 - Section 354(3) - Special reasons - Means reasons for choice of harsher sentence of death rather than life imprisonment - Such sentence must be justified on proper balancing of mitigating and aggravating circumstances - Provision is an assurance of due consideration of all factors an application of mind - Courts at all stages, trial or appellate, must analyze the evidence and all materials and reach independent conclusion - ’Special reasons’ need not be lengthy - But lucid and reflecting due cinsideratuion of facts and circumstances. (Paras 41 and 42)
(1974) 4 SCC 443; (1976) 4 SCC 298; (1977) 3 SCC 280; Triveniben; (1976) 1 SCC 163; (1989) 3 SCC 5; (1980) 2 SCC 684; Jagmohan Singh; (2011) 7 SCC 437; (2013) 2 SCC 452; (2013) 2 SCC 479; (2008) 13 SCC 767; (1983) 3 SCC 470; (1992) 1 SCC 96; (2013) 2 SCC 479 - Relied upon
(d) Criminal Trial - Sentencing procedure - Appellate jurisdiction - Court should give reasons for awarding sentence - If it is not done the appellate court should analyse the materials and reach its independent conclusion - Remand is exception and not the rule. (Para 44)
(1977) 3 SCC 68 - Relied upon
(e) Indian Penal Code, 1860 - Section 302 - Accused persons burning alive entire family including children just because informant refused to withdraw FIR against A1 - All accused persons equally culpable - However no overt act attributable to A3 - Death sentence commuted to life imprisonment till the end of life. (Para 86)
(2003) 7 SCC 258 - Relied upon
(f) Indian Penal Code, 1860 - Section 302 - Appellants A1 and A2 - Blood thirsty hardened criminals - Entire incident extremely revolting and shocking - Acts of murder committed by them gruesome, merciless and brutal - Act falling in category of "rarest of rare" cases - Death sentence proper. (Paras 87 and 90)
(1980) 2 SCC 684; (1983) 3 SCC 470; (2011) 13 SCC 706; (2012) 4 SCC 257; (1977) 3 SCC 68; (2010) 10 SCC 611; (2009) 6 SCC 220; (2009) 9 SCC 495; (2008) 4 SCC 434; (2007) 3 SCC 1; (2005) 3 SCC 793; (2005) 6 SCC 342; (2005) 12 SCC 107; (2003) 8 SCC 224; (2003) 1 SCC 648; (2003) 7 SCC 258; (2003) 12 SCC 199; (2005) 6 SCC 130; (1988) 1 SCC 633; (2000) 7 SCC 455; (2000) 8 SCC 457; (1996) 6 SCC 271; (1996) 2 SCC 175; (2011) 7 SCC 125; (2010) 9 SCC 1; (2011) 14 SCC 401; (2001) 2 SCC 28; (2010) 1 SCC 775; (2010) 1 SCC 58; (2012) 4 SCC 107; (1999) 8 SCC 325 - Relied upon
Facts of the case:
These appeals are against death sentence.
Finding of the Court:
A1 and A2 deserve death sentence while A3 deserves imprisonment till the end of life.
Result : Appeals disposed of.
JUDGMENT
H.L. Dattu, J:
1. These appeals are directed against the judgment and order passed by the High Court of Judicature at Patna in Death Reference No. 6 of 2009 and Criminal Appeal(DB) Nos. 989 of 2009 and 158 of 2010, dated 19.08.2010. By the impugned judgment and order, the High Court has confirmed the judgment of conviction, dated 17.09.2010 and order of sentence, dated 30.10.2009 passed by the Additional Sessions Judge cum FTC No. 2, Vaishali at Hazipur in Sessions Trial No. 195 and 571 of 2006, whereby the learned Sessions Judge has convicted the three accused-appellants for offence under Sections 120B, 148, 302 read with 149, 307 read with 149, 326, 429, 436 and 452 of Indian Penal Code, 1860 (for short 'the IPC') and sentenced them to death.
Facts:
2. The Prosecution case in a nutshell is: On the fateful night of 01.01.2006, the deceased informant (PW-7) was sleeping in the Varanda of his house and his wife alongwith the children, two daughters aged 12 and 10 years, respectively and three sons aged 8, 6 and 3 years, respectively were sleeping in the room inside the house. At around 01.00 A.M., he was awakened by the sound of footsteps of several people. In the dim light of a night bulb and further from their voices, he identified the persons who had come near his house armed with lethal weapons as appellant-accused persons and nine other villagers besides 10-11 unknown persons.
Before the informant could escape, appellant- accused-Jagat Rai(A1) and Deepak Rai(A2) caught hold of him and pushed him on the ground whereafter 3-4 unknown persons got over his body and gagged him. Then A1 instructed few others to surround the house from all sides and sprinkle kerosene over it, while the other accused persons locked the door of the room where the informant's wife was sleeping alongwith the children and set the house on fire trapping them inside. Thereafter, they sprinkled kerosene over the informant's body and held him to the ground while A1 set the informant's mouth on fire by lighting a matchstick.
Upon rising of a blazing flash of fire, the accused persons fled away leaving the informant behind. While the informant also attempted to escape, A2 fired at him but the informant managed an escape and raised alarm. On hearing such noise, the informant's four brothers and other family members who resided in the adjoining houses woke up, reached the spot and witnessed the accused persons running away while the informant was on fire. Until then the fire in informant's house had reached its enormity, swallowing the informant's family and injuring the buffalo and calf on the property. The informant (PW-7) was rushed to the Primary Health Centre, Raghopur.
3. The fardbayan was recorded at 7:30 AM, on the basis of which an FIR was registered against the three appellant- accused and few others for the offence under Sections 147, 148, 149, 452, 342, 324, 326, 427, 436, 307 and 302 of the IPC at 9:00 AM on 01.01.2006. The motive of the occurrence was alleged to be the informant's refusal even after consistent threats by A1 to withdraw the FIR lodged by him for the theft of informant's buffalo against A1 and his family, in pursuance of which two members of his family were arrested. Upon investigation, the chargesheet was drawn against the aforesaid accused persons on 21.03.2006. The learned Judicial Magistrate, First Class, Hazipur, Vaishali bifurcated the case of the absconded accused persons-A1, A2 and 8 others and committed the case of Bacchababu Rai (A3) and 5 others for trial as Sessions Trial No. 195 of 2006, by order dated 06.05.2006. Upon arrest of the accused persons-A1, A2 and one other, their case was separated from other absconder-accused persons and committed to trial as Sessions Trial No. 571 of 2006, by order dated 15.12.2006.
4. While in Sessions Trial No. 195 of 2006, 17 witnesses were examined and 14 exhibits were produced, in Sessions Trial No.571 of 2006, 14 witnesses were examined and 11 exhibits were produced by the prosec
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