Anuj Sharma vs State of U.P.

Imtiyaz Murtaza, J.—This appeal has been assigned to me for third Judge opinion on account of divergence of opinion between the Judges (namely Hon. S.S. Kulshrestha and Hon. B.A. Zaidi, JJ. as they were then) on the issue limited to quantum of punishment. One of the Hon. Judge (Hon. S.S. Kulshrestha) after recording conviction, articulated his view leaning in favour of death penalty while the other Judge (Hon. B.A. Zaidi) made strong plea holding that this case did not fall within the category of the rarest of the rare cases. However, the dissenting Judge (Hon. B.A. Zaidi) concurred with the conclusions reached in the judgment prepared by Hon. S.S. Kulshrestha, J.

The appeal in hand has its genesis in the judgment and order of the trial Court dated 15.2.2007 rendered in S.T. No. 435 of 2006 under Sections 302, 376(2)(Cha) and 201, I.P.C. whereby the Appellant has been visited with the penalty of death u/s 302, I.P.C. and again convicted and sentenced the Appellant to the imprisonment for life u/s 376(2)(Cha), I.P.C. together with a fine of Rs. 10,000. The Appellant has further been convicted u/s 201, I.P.C. and sentenced to seven years R.I. together with a fine of Rs. 5,000.

Before I dilate upon and deal with the views taken by respective Hon. Judges in the matter, it would be appropriate to recapitulate the facts as are necessary for the disposal of this appeal.

The victim in the instant case is a tiny girl aged 3 years and six months, namely, Tanu daughter of Devendra Singh, and at this callow age she was fated to be raped and murdered by a sexual maniac, an indeed tragic incident executed with diabolical ingenuity. A brief resume of the facts as are necessary are that on 18.2.2006 at about 6 p.m., the girl had strayed outside the house while playing and when she was not seen for quite long time, an assiduous search was undertaken for tracing her by the family members who were joined by other co-villagers but it yielded no tangible result. On 19.2.2006, two of the villagers namely, Paramvir and Yogendra Singh, divulged upon recalling that they had seen the girl in the lap of Anuj Sharma on 19.2.2006 between 6 and 6.30 p.m., and that the accused was seen proceeding in the direction of the road from the direction of Gher of Veerpal. On the basis of this information, the Appellant was sent for through Surajpal who was interrogated by the informant alongwith Om Prakash, Rajendra, Jaipal etc. It is further alleged that initially, the Appellant pleaded ignorance but subsequently, he gave up and blabbed about what really happened stating that he had committed grave mistake as he had raped the girl and subsequently, she was strangulated to death and buried her body at a place adjacent to the wall by digging a pit and upon this revelation, the Appellant was taken to the indicated place where the body was recovered. In the meantime, it is further alleged, the Appellant tried to escape but he was caught hold of and was also given thrashing by the villagers. The report was lodged at Police Station Gulaoti which was registered under Sections 302, 376 and 201, I.P.C.

The investigation of the case was taken over by S.O. B.P. Singh. A police posse consisting of S.I. Shiv Pal Singh, S.I. Devpal Singh, Constable Veerpal, Constable Manesh, Aqil Ahmad were rushed to the village on jeep. S.I. Ranveer Sharma and Constable Dhaneshwar Singh and Home-guard Dal Chand reached the place of occurrence by motor-cycle. The police personnel pacified the crowd and recorded the statement of Devendra Singh. S.I. Ranvir Singh was called upon to conduct inquest on the dead body. Necessary formalities were observed and the body was sent for post-mortem escorted by Constable Dhaneshwar and Home-guard Dal Chand.

The post-mortem was conducted in the mortuary by Dr. R.K. Dabre on 20.2.2006 at 8.30 a.m. in the presence of Dr. B.K. Gaud and Dr. Reeta Singh. The Doctors conducting post-mortem opined that the girl was aged about three and half years. The Doctor namely Dr. R.K. Davray P.W. 4 who conducted the post-mortem on the dead body on 20.2.2006 found the following ante mortem injuries:

Abraded contusion 3 cms. x 2 cms. present over right side of anterior aspect of neck, the upper part of the lavel of adam''s apple.

Abraded contusion 6 cms. x 3 cms. present over anterior aspect and left side of neck in middle and upper part.

Perineal tear 3 cms. x 2 cms. x muscle deep present at 6 O''clock position of the vagina.

Hymen is lacerated entirely.

Posterior formic of the vagina is lacerated and communicating into the abdominal cavity on probing.

The accused also suffered injuries and he was examined of Dr. G.D. Gaur. Dr. G.D. Gaur was arrayed as D.W. 1 and he found following injuries on the person of accused Anuj Sharma.

Lacerated wound 1 cm. x .5 cm. muscle deep on right side of the lower lip.

Abraded contusion 1.5 cm. x .5 cm. on left cheek.

Contusion swelling on upper lip.

Abraded contusion 30 cm. x 12 cm. on right side back of chest.

Abrasion 1.5 cm. x 1.5 cm. on left knee joint.

The prosecution in order to substantiate its case, examined in all seven witnesses namely Devendra Singh P.W. 1, father of the deceased girl, Paramvir P.W. 2, a person who had seen the accused taking the deceased girl in his lap, Yogendra Singh P.W. 3, a person who had also seen accused taking the girl in his lap, Dr. R.K. Davray P.W. 4, (he conducted post-mortem on the body of the deceased) S.I. B.P. Singh, P.W. 5, (S.O. of the police station who conducted investigation of the case), Dr. Reeta Singh P.W. 6, (she was present with Dr. R.K. Davray at the time of conduct of post-mortem) and Constable clerk Mohd. Abbas, P.W. 7.

The accused in his statement recorded u/s 313, Code of Criminal Procedure denied the incriminating evidence appearing against him and pleaded that he has been falsely implicated in the case and claimed to be innocent. He examined Dr. G.D. Gaur as D.W. 1 who prepared report about the injuries sustained by the accused. He denied his presence in the village on the day on which the girl is stated to have been raped and murdered and claimed that he had come back to the village next day. He also stated that the witnesses namely Paramvir and Yogendra Singh had falsely deposed against him in kindred spirit (actuated by caste factor). The accused also claimed that the village was predominantly populated by persons of Jat community and there were only 5 to 6 houses of Brahmin and Jat had covetous eyes over the property of Brahmin and they have enmeshed the Appellant as the doer of the crime. He also stated that in the last election conducted for the office of Pradhan, the Brahmins had voted against Sukhvir Singh, Paramvir and Ram Singh and it was the cumulative effect of prejudices that were nursed by people of Jat community against his community that they have nominated the Appellant as the perpetrator of crime.

The trial Court upon appraisal of the entire evidence on record, held him guilty of the charges and saddled him with the conviction under Sections 302, 376(2)(Cha) and 201, I.P.C.

Being aggrieved and dissatisfied with the judgment of the Court below, the accused filed the appeal before this Court.

We have heard Sri H.N. Sharma and A.N. Pandey for the Appellant and learned A.G.A. appearing for the State.

The learned Counsel appearing on behalf of the Appellant canvassed for the view taken by Hon. B.A. Zaidi, J. However, he also attempted feebly to assail the view against the conviction of the Appellant arguing that the evidence produced in the case is not sufficient and convincing to warrant the conviction of the Appellant. He also canvassed that the evidence of P.W. 1, P.W. 2 and P.W. 3 could not be accepted as they were interested witnesses. He also canvassed that the P.W 1, P.W. 2 and P.W. 3 in their deposition have given a concocted version which casts severe doubts about the truthfulness of the prosecution case. He also argued that when the accused returned next day to the village, he was caught hold and given severe beating. He further argued that there is no reliable evidence brought on record to connect the Appellant with the crime. Per contra, the learned A.G.A. appearing for the State canvassed the correctness of the view taken by Hon. S.S. Kulshrestha, J. In reply to the submissions assailing the conviction of the Appellant, the learned A.G.A. contended that the case hinged on circumstantial evidence and the chain of circumstances consistent with the hypothesis of the guilt of the Appellant was complete.

In order to appreciate the aforesaid rival contentions of the learned Counsel for the parties on the quantum of punishment, we propose to independently scrutinise the oral and documentary evidence appearing on record.

To begin with, I have gone through the evidence on record and have also been taken through the judgment rendered by Hon. S.S. Kulshrestha, J. The arguments raised and dealt with by the Court are summarised as under:

The first argument raised relates to witnesses being interested and partisan attended with the submission that there were very few houses of Brahmin community in the village and the village is predominantly populated by Jat community and they had covetous eyes over the properties of Brahmin and finding this blind case as a easy prey, they have nominated the Appellant as accused in the case attended with arguments that the informant and witnesses bore hostile animus as Brahmins of the village including Appellant had voted against them in the election held for the office of Pradhan.

Dealing with the first argument, the learned Judge repelled the said submission and observed that "suffice it to mention that in regard to the interestedness of the witnesses for furthering prosecution version, relationship or caste is not a factor to affect the credibility of a witness. It is further observed that it is more often that a relation would not conceal the actual culprit and make allegations against an innocent person. In connection with this reasoning, reliance was placed on Dalip Singh and Others Vs. State of Punjab, The learned Judge also reasoned that there was direct evidence and on pointing out of accused, dead body was recovered. He further observed that P.W. 2 and P.W. 3 gave information immediately without loss of time that they had seen the accused taking the victim girl in his lap. Dwelling on next argument of the learned Counsel for the Appellant that statement of P.W. 2 Param Vir was recorded after an efflux of one month by the Investigating Officer when he was already available in the village, it was reasoned that name of these witnesses found place in the written report and they have also given categorical narration of the incident and further that there appeared to be no doubt with regard to their being the witnesses of last seen. He further observed that delayed examination would not be a ground to discard their testimony and to prop up his submission he relied upon State of U.P. Vs. Satish, . In ultimate analysis, the learned Judge observed that the testimony of all the three witnesses, as regards the confession made by the accused inspire confidence and this was also communicated at the police station by lodging the report on 19.2.2006 at 12.30 p.m. As regards the argument that the conduct of the accused in committing murder and immediately revealing this fact to the witnesses cannot be consistent with the ordinary human conduct, the learned Judge recalled the testimony of the witnesses that the accused was brought to the house of informant by Surajpal and on being confronted that he was seen taking the girl in his lap attended with assurance that he would not be harmed in any way, the learned Judge reasoned that such assurance had seemingly prompted the accused to make disclosure and to confess to his guilt before these witnesses. It was further observed by the learned Judge that the unnatural conduct on the part of the accused would not necessarily shake the veracity of the testimony of the prosecution witnesses but would put the Court on guard to get the assurance of truth in the prosecution by corroborative evidence including circumstantial factors. Lastly the learned Judge observed that circumstances referred to by the trial Court are almost clinching and lend assurance to the correctness of the version of these witnesses.

The second argument revolves round the time gap between the deceased last seen alive in the company of the accused and when she was found dead attended with the submission that it was next to impossible that the accused was the author of the crime.

Dealing with this second argument, the learned Judge reasoned that the accused was seen near the Gher of Veerpal carrying the little girl in his lap and on account of close proximity of the place and time and the accused being last seen with the victim and recovery on his pointing out would be sufficient to reach the irresistible conclusion with regard to commission of the aforesaid crime by the accused. The learned Judge also referred to recovery of Salwar, underwear and frock of the deceased and also underwear of the accused which was sent for chemical analysis and also the report of chemical analyst which proved presence of human blood on the frock of the deceased and on the underwear of the accused and also presence of semen on the underwear of the accused. Regard being had to the report of chemical examiner, the learned Judge observed that the report also lends support to the prosecution version attended with the observation that such circumstantial evidence and the incriminating facts are appearing to be incompatible with the innocence of the accused. Upon the conspectus of the above discussion, the learned Judge opined that the incriminating circumstances proved against the accused form a complete chain of circumstance and are consistent with the hypothesis of the guilt of the accused Appellant.

Dealing with the argument on the quantum of punishment, the learned Judge observed that a little child who had not seen four summers was raped and killed. He further observed that there is no extenuating or mitigating circumstances available on record which may justify imposition of any sentence less than the death penalty. The learned Judge also referred to the decision of the Apex Court in Bachan Singh Vs. State of Punjab, and Machhi Singh and Others Vs. State of Punjab, and confirmed the death penalty as awarded by the trial Court.

I have also scrutinised the separate judgment rendered by Hon. B.A. Zaidi. The learned Judge observed as under as a prologue to the judgment:

I agree with the findings of my learned brother Hon. Mr. Justice Kulshrestha holding the accused guilty for the commission of the crime but I cannot reconcile myself with the sentence of death imposed by him on the accused.

The only crucial issue to be thrashed out is whether death sentence as awarded by the trial Court should be confirmed or he should be let off with a lighter sentence of imprisonment for life.

Brother Zaidi observed in his dissenting note that "My brother has rightly mentioned that the little girl could not see four summers because of the bestiality of the accused but if we send the accused to the gallows he will also not be able to see the 21st Summer. He is still too young to be executed. He also stated that the case does not fall within the category of the rarest of the rare cases and relied upon a decision of the Apex Court in Amit @ Ammu Vs. State of Maharashtra,

Although both the learned Judges in their separate decisions referring to various decisions, gave their views on the quantum of punishment, I feel called to have a look of what is law on the point. Under the old Code of Criminal Procedure, ample discretion was given to the Courts to pass death sentence as a general proposition and the alternative sentence of life term could be awarded in exceptional circumstances, that too after advancing special reasons for making this departure from the general rule. The new Code of 1973 has entirely reversed the rule. A sentence for imprisonment for life is now the rule and capital sentence is an exception. It has also been made obligatory on the Courts to record special reasons if ultimately death sentence is to be awarded. A Constitution Bench of the Supreme Court in the case of Bachan Singh Vs. State of Punjab, while upholding the constitutional validity of the death sentence voiced that as a legal principle death sentence is still awardable but only in rarest of rare cases when the alternative option of lesser sentence is unquestionably foreclosed.

Coming to the aspect whether penalties of death should be sustained in the facts and circumstances of the case, we feel called to advert to the guidelines laid down in stream of decisions commencing from Bachan Singh Vs. State of Punjab, and thereafter reiterated in subsequent decisions namely Machhi Singh and Others Vs. State of Punjab, and Devender Pal Singh Vs. State National Capital Territory of Delhi and Another, The guidelines laid down in Bachan Singh''s case (supra), may be culled out as under:

(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty, the circumstances of the offender also require to be taken into consideration alongwith the circumstances of the crime.

(iii) Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so, the mitigating circumstances have to be accorded full weightage and just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

In Machchi Singh and Ors. v. State of Punjab (1983), the Supreme Court expanded the "rarest of rare" formulation beyond the aggravating factors listed in Bachan Singh to cases where the "collective conscience" of a community may be shocked. But the Bench in this case underlined that full weightage must be accorded to the mitigating circumstances in a case and a just balance had to be struck between aggravating and mitigating circumstances.

In Devender Pal Singh''s case (supra), the Apex Court regard being had to both the cases supra, expanded the formulation for imposing extreme penalty. The guidelines may be abstracted below as under:

When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.

When the murder is committed for a motive which evinces total depravity and meanness e.g. Murder by hired assassin for money or reward, or cold blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust ; or murder is committed in the course for betrayal of the motherland.

When murder of a member of a Scheduled Caste or minority community etc. is committed not for personal reasons but in circumstances which arouse social wrath ; or in cases of bride burning or dowry deaths or when murder is committed in order to re-marry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons or a particular caste, community, or locality are committed.

When the victim of murder is an innocent child or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.

Now I turn to what the Sessions Judge reasoned for awarding the death penalty. The learned Judge summed up the macabre features of the crime stating that the deceased was a innocent girl aged about 3 years who was raped and murdered by none other than the accused who after ravishing her, buried her in a pit. He also observed that the accused committed heinous crime on an undiscerning and innocent girl who had not yet seen which had left the entire village flabbergasted and collective conscience of the society demands that such an accused must be visited with extreme penalty which can be no less than the death penalty.

In the instant case the victim aged about 3 and 1/2 years was not only brutally raped but was murdered in a diabolical manner. The object of law is protection of society and stamping out criminal proclivity this object can be fulfilled by imposing appropriate sentence. What has to be considered in awarding appropriate sentence are the facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. Undue sympathy to impose lesser sentence would do more harm to the justice system which is fraught with the consequence of undermining the public confidence in the efficacy of law. It is not a case in which it be said that the crime was a result of human mind going astray. It is a crime committed to gratify sexual lust.

In a recent decision in Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra, the Apex Court in para 131 laid down that when the Court is faced with a capital sentencing case, a comparative analysis of the case before it with other purportedly similar cases would be in the fitness of the scheme of the Constitution. Comparison will presuppose an identification of a pool of equivalently circumstanced capital Defendants. The gravity, nature and motive relating to crime will play a role in this analysis. In para 132, the Apex Court ruled that next step would be to deal with the subjectivity involved in capital cases. The imprecision of the identification of aggravating and mitigating circumstances has to be minimised. The mandate of equality clause applies to the sentencing process rather than the outcome. The comparative review must be undertaken not to channel the sentencing discretion available to the Courts but to bring in consistency in identification of various relevant circumstances. The aggravating and mitigating circumstances have to be separately identified under a rigorous measure. In para 133, it is observed that Bachan Singh case when mandates principled precedent based sentencing, compels careful scrutiny of mitigating circumstances and aggravating circumstances and then factoring in a process by which aggravating and mitigating circumstances appearing from the pool of comparable cases can be compared. The weight which is accorded by the Court to particular aggravating and mitigating circumstances may vary from case to case in the name of individualised sentencing, but at the same time, reasons for apportionment of weights shall be forthcoming. Such a comparison may point out excessiveness as also will help repel arbitrariness objections in future. A sentencing hearing comparative review of cases and similarly aggravating and mitigating circumstances analysis can only be given a go-by if the sentencing Court opts for life imprisonment.

In paras 71 and 72, the Apex Court observed that in most cases of heinous crimes, Courts have only been considering the brutality of crime index. There may be other factors which may not have been recorded. There is no consensus in the Court on the use of "social necessity" as a sole justification in death punishment matters. The test which emanates from Bachan Singh case in clear terms is that the Courts must engage in an analysis of aggravating and mitigating circumstances with an open mind, relating both to crime and the criminal, irrespective of the gravity or nature of crime under consideration. A dispassionate analysis, on the said counts, is a must. The Courts while adjudging on life and death must ensure that rigour and fairness are given primacy over sentiments and emotions.

In the light of the above decision, we would revert back to the case to weigh up the aggravating and mitigating circumstances. At the risk of repetition, it may be recalled that the learned Judge (Hon. S.S. Kulshrestha) observed that a little child who had not seen four summers was raped and killed. He further observed that there is no extenuating or mitigating circumstances available on record which may justify imposition of any sentence less than the death penalty. The learned Judge also referred to the decision of the Apex Court in Bachan Singh Vs. State of Punjab, and Machhi Singh and Others Vs. State of Punjab, and confirmed the death penalty as awarded by the trial Court. On the other hand, the dissenting Judge (Hon. B.A. Zaidi) observed "My brother has rightly mentioned that the little girl could not see four summers because of the bestiality of the accused but if we send the accused to the gallows he will also not be able to see the 21st Summer. He is still too young to be executed. He also stated that the case does not fall within the category of the rarest of the rare cases and relied upon a decision of the Apex Court in Amit @ Ammu Vs. State of Maharashtra,

It would thus transpire from the record that the Appellant at the time of occurrence was still young enough and lust having overcome him, he committed the crime. It is not shown to be having any criminal antecedents which may be likened to an incorrigible predator or ravishers for whom there is no alternative except the death sentence. The convict is a young man and seemingly overborne by lust, he is shown to have committed the crime. No doubt the crime is gruesome and revolting as the victim involved is a tiny girl aged a little over three years and no leniency is called for but at the same time, if life imprisonment which after remission normally works out to a term of 14 years is found to be inadequate, it would be appropriate if the Appellant is sentenced to undergo life imprisonment in excess of 14 years, i.e., he would undergo and he would be entitled to no remission. In the facts and circumstances of the case, it would suffice to say that the death penalty would be disproportionate in the facts and circumstances of the case.

Upshot of above discussion is that the case does not fall within the category of the rarest of rare cases and there is no special reason for awarding death sentence. The view of learned Judge (Hon. B.A. Zaidi, J.) is upheld and affirmed.

It is ordered accordingly.