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SUPREME COURT OF INDIA
N.V. RAMANA, MOHAN M. SHANTANAGOUDAR, INDIRA BANERJEE, JJ.
MD. MANNAN @ ABDUL MANNAN – PETITIONER
VERSUS
STATE OF BIHAR – Respondent
REVIEW PETITION (CRIMINAL) NO. 308 OF 2011 IN CRIMINAL APPEAL NO 379 OF 2009
Decided on : 14-02-2019
(a) Criminal Procedure Code, 1973 - Section 235(2) - Not a mere formality - Mandate of Section 235(2) has to be obeyed in letter and spirit. (Para 20, 22)
(b) Indian Penal Code, 1860 - Section 302 - Only the convictions attaining finality - Can be considered as “aggravating circumstances”. (Para 37)
(c) Criminal Procedure Code, 1973 - Section 235(2) - Court intending to impose death penalty - Should specifically suggest to accused to enable him to make effective representation - Instantly not done - Secondly, no social worker available to accused at section 235 stage - Thirdly, legal aid not adequate - Advocate assigned to accused not pressing any mitigating circumstances - Only stating that accused has been falsely implicated - Death sentence imposed on same day of judgment and order of conviction - Held, petitioner not given a real, effective and meaningful hearing on the question of sentence - Death sentence imposed liable to be commuted to life imprisonment on this ground. (Para 41, 42)
(d) Indian Penal Code, 1860 - Section 302 - Trial Court finding that the crime committed was barbarous, and a crime against society, beyond imagination - Whether it called for death penalty - Trial court swayed by unsubstantiated submission of PP that accused had been an accused in another case before another court - Brushing aside his acquittal in that case - not caring to peruse order of that court - No evidence of pre-meditation - trial court not considering whether the case was ‘rarest of rare’ - High Court finding it rarest of rare cases brushing aside acquittal of the accused in the other case - High Court failing to appreciate that trial court proceeded on the basis that petitioner had criminal history, when he was acquitted - Not justifiable. (Para 44, 45, 46, 47, 48, 49, 50, 52)
(e) Criminal trial - Appreciation of evidence - Quality of evidence is a relevant factor to sentencing. (Para 56, 58)
(f) Indian Penal Code, 1860 - Section 302 - Death sentence - Conviction based on circumstantial evidence and alleged extra judicial confession made by the petitioner to the police in course of investigation, on the basis of which certain recoveries were made - No forensic evidence against petitioner - Imposition of death sentence not safe. (Para 59)
(g) Indian Penal Code, 1860 - Section 302 - Death sentence - No prohibition in awarding a death sentence in a case of circumstantial evidence - But that evidence must lead to an exceptional case. (Para 62)
(h) Indian Penal Code, 1860 - Section 302 r/w section 235(2), Code of Criminal Procedure, 1973 - Death sentence - Earlier review petition dismissed by circulation on 24.08.2011 - Even thereafter death sentence not executed for about three years - Instant petition for review in open Court pending for four years - Petitioner not mentally sound - Petitioner not getting benefit of competent legal assistance - Question of mitigating circumstances not addressed by courts below - Imposition of death sentence on the same day after pronouncement of judgment - Held, petitioner not getting benefit of competent legal assistance - Hearing under Section 235(2) reduced to a mere formality - No evidence that petitioner was beyond reformation - In such case Supreme Court would give a hearing to the accused and do justice - Petitioner developing mental illness - a relevant supervening circumstance - Not safe to affirm death sentence - Sentence commuted to life imprisonment, till his natural death, without reprieve or remission. (Para 72, 77, 79, 80, 82, 84, 86, 90)
Facts of the case:
This application is for reopening the Review Petition (Crl.) No.308 of 2011 and for review of the final judgment and order dated 20.04.2011 passed by this Court dismissing Criminal Appeal No.379 of 2009 filed by the review petitioner and confirming his conviction, inter alia, under Section 201, 366A, 376 and 302 of the Indian Penal Code and, inter alia, affirming the death sentence imposed on him under Section 302 of the IPC.
The petitioner, a mason, was engaged at the residence of the deceased victim’s grand father. On 28.9.2004 at about 2.00 p.m., the petitioner gave money to the victim to bring betel for him from Hanuman Chowk. A little while later the petitioner also went to Hanuman Chowk, picked up the victim, an eight year old girl, on his bicycle and left talking with her. The victim and the petitioner were seen together by witnesses.
The victim did not return home.
The trial court held the petitioner guilty of charges under Sections 366A, 376, 302 and 201 of IPC. On the same day after hearing the applicant on the question of sentence, the Fast Track Court sentenced the petitioner to undergo rigorous imprisonment for 10 years for charge under Section 366A IPC, rigorous imprisonment for life for charge under Section 376 IPC, rigorous imprisonment for 7 years for charge under Section 201 IPC and death sentence for charge under Section 302 IPC. All the sentences except the sentence for the charge under Section 302 IPC were to run concurrently till execution of the death sentence under Section 302 IPC, whereby the convict was to be hanged by the neck till his death.
The appeal was dismissed by the High Court and the death penalty awarded to the petitioner by the Trial Court was confirmed.
The appeal being Criminal Appeal No.379 of 2009 was dismissed by Supreme Court.
The review petition was dismissed by circulation by the same two judges.
In view of Constitution Bench judgment this review is being reopened and heard by three Judges.
Finding of the Court:
Imposing death sentence is not safe. Sentence to death commuted to life imprisonment, till his natural death, without reprieve or remission.
Result: Petition disposed of.
ORDER :
This application is for reopening the Review Petition (Crl.) No.308 of 2011 and for review of the final judgment and order dated 20.04.2011 passed by this Court dismissing Criminal Appeal No.379 of 2009 filed by the review petitioner and confirming his conviction, inter alia, under Section 201, 366A, 376 and 302 of the Indian Penal Code (IPC) and, inter alia, affirming the death sentence imposed on him under Section 302 of the IPC.
2. It appears that the petitioner, a mason, was engaged at the residence of the deceased victim’s grand father. On 28.9.2004 at about 2.00 p.m., the petitioner gave money to the victim to bring betel for him from Hanuman Chowk. A little while later the petitioner also went to Hanuman Chowk, picked up the victim, an eight year old girl, on his bicycle and left talking with her. The victim and the petitioner were seen together by witnesses.
3. The victim did not return home, whereupon frantic searches were made. The victim was not found. It was learnt that the victim had been last seen with the petitioner.
4. The officer in-charge of Bahera Police Station, under which the village of the petitioner falls, was informed that the victim was missing. In course of investigation the petitioner, who had earlier been identified as the man with whom the victim had last been seen, riding on a bicycle, allegedly made a confessional statement in the presence of witnesses, confessing that he had raped and murdered the victim. The confessional statement was signed by the petitioner.
5. The petitioner is alleged to have disclosed the place where he had raped and killed the victim. It is the case of the prosecution, that on the basis of information given by the petitioner, the Investigating Officer went to the village Izaar Haat Bandh, where the dead body of the victim was recovered from the spot shown by the petitioner, amidst wheat and ‘arahar’ fields.
6. The dead body was identified as that of the victim. The doctor who conducted the post mortem opined that death was due to asphyxia and haemorrhage as a result of strangulation within 8 to 24 hours from the time of post mortem examination. The doctor also deposed that upon examination the vaginal swab collected from the victim showed “few intact spermatozoa”. The medical evidence clearly established that the victim had been raped and murdered. However no DNA analysis of the spermatozoa was conducted by the prosecution.
7. By a judgment and order rendered on 29.5.2007 in Sessions Trial No.220/2004 arising out of GR No. 325/2004 Manigachi P. S. Case No.13 of 2004, the Additional District and Sessions Judge (Fast Track Court) No.30, on consideration of the evidence on record, held the petitioner guilty of charges under Sections 366A, 376, 302 and 201 of IPC. On the same day after hearing the applicant on the question of sentence, the Fast Track Court sentenced the petitioner to undergo rigorous imprisonment for 10 years for charge under Section 366A IPC, rigorous imprisonment for life for charge under Section 376 IPC, rigorous imprisonment for 7 years for charge under Section 201 IPC and death sentence for charge under Section 302 IPC. All the sentences except the sentence for the charge under Section 302 IPC were to run concurrently till execution of the death sentence under Section 302 IPC, whereby the convict was to be hanged by the neck till his death.
8. The learned Additional District and Sessions Judge, Fast Track court directed that the proceedings of the case be transmitted to the High Court of Judicature at Patna for confirmation of the death sentence. The petitioner filed an appeal being Criminal Appeal (DB) No.963 of 2007 in the High Court against his conviction and sentence.
9. The death sentence reference being Death Reference No.6 of 2007 was heard by the Division Bench of the High Court along with the Criminal Appeal (DB) No. 963 of 2007. The Division Bench, after considering the materials on record, arrived at the finding that the charges against the pe
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