Andhra Pradesh High Court - Amravati
The State Of Andhra Pradesh vs Dudekula Siddaiah on 23 October, 2024
Author: K.Suresh Reddy
Bench: K.Suresh Reddy
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
REFERRED TRIAL No. 1 OF 2023
AND
CRIMINAL APPEAL No. 191 OF 2023
Between:
Dudekula Siddaiah,
S/o Peeraiah, 32 years, C/o Dudekula,
R/o Ambavaram Village, Giddalur Mandal,
Prakasam District, Andhra Pradesh ... Appellant
AND
The State of Andhra Pradesh,
Rep. by its Public Prosecutor,
High Court of A.P.,
Amaravati. ... Respondent
Date of Judgment Pronounced : 23-10-2024
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE K.SURESH REDDY
AND
THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY
1. Whether Reporters of Local newspapers
may be allowed to see the judgment? Yes/No
2. Whether the copy of judgment may
be marked to Law Reporters/Journals? Yes/No
3. Whether Their Lordships wish to see the
fair copy of the judgment? Yes/No
___________________
K.SURESH REDDY, J.
_______________________
K.SREENIVASA REDDY, J.
2
*THE HON'BLE SRI JUSTICE K.SURESH REDDY
AND
THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY
+ REFERRED TRIAL No. 1 OF 2023
AND
CRIMINAL APPEAL No. 191 OF 2023
%Dated: 23-10-2024
#Dudekula Siddaiah, S/o Peeraiah,
32 years, C/o Dudekula,
R/o Ambavaram Village, Giddalur Mandal,
Prakasam District, Andhra Pradesh ... Appellant
VERSUS
$The State of Andhra Pradesh,
Rep. by its Public Prosecutor,
High Court of A.P.,
Amaravati ... Respondent
!Counsel for the appellant : Sri I.V.N.Raju
^Counsel for the respondent: Sri M.Lakshmi Narayana,
Learned Public Prosecutor
<GIST:
>HEAD NOTE:
? Cases referred:
1. AIR 1980 SC 898
2. (2023) 2 SCC 353
3. 2023 LiveLaw (SC) 217
3
HON'BLE SRI JUSTICE K.SURESH REDDY
AND
HON'BLE SRI JUSTICE K.SREENIVASA REDDY
REFERRED TRIAL No. 1 OF 2023
AND
CRIMINAL APPEAL No. 191 OF 2023
COMMON JUDGMENT:
(per Hon'ble Sri Justice K.Suresh Reddy)
By judgment dated 25-01-2023 in S.C.No. 78 of 2021 on
the file of the Court of learned Special Judge for Trial of Offences
under Protection of Children from Sexual Offences Act, 2012,
Prakasam District at Ongole (for short, 'the trial Court'), the sole
accused was found guilty of the offences under Sections 201,
342, 366, 376-AB and 302 of Indian Penal Code (for short, 'IPC')
and Section 6 read with Section 5 (l) (m) (r) of the Protection of
Children from Sexual Offences Act, 2012 (for short, '2012 Act').
2. The sole accused was tried by the trial Court under the
following charges:
I charge was under Section 366 IPC;
II charge was under Section 342 IPC;
III charge was under Section 376-AB IPC;
IV charge was under Section 302 IPC;
V charge was under Section 201 IPC;
VI charge was under Section 6 of 2012 Act; and
Last charge was under Section 5 (l) (m) (r) of 2012 Act.
3. The trial Court sentenced the accused to suffer rigorous
imprisonment for seven years and also to pay a fine of Rs.500/-,
in default to suffer simple imprisonment for a period of three
months, for the offence under Section 201 IPC; to suffer rigorous
imprisonment for one year and also to pay a fine of Rs.500/-, in
default to suffer simple imprisonment for a period of three months,
for the offence under Section 342 IPC; to suffer rigorous
imprisonment for ten years and also to pay a fine of Rs.500/-, in
default to suffer simple imprisonment for a period of three months,
for the offence under Section 366 IPC; to suffer rigorous
imprisonment for not less than twenty years which may extend to
imprisonment for life which shall mean imprisonment for the
remainder of natural life and also to pay a fine of Rs.500/-, in
default to suffer simple imprisonment for a period of three months,
for the offence under Section 376-AB IPC; to suffer death penalty
and also to pay a fine of Rs.500/-, in default to suffer simple
imprisonment for a period of three months, for the offence under
Section 302 IPC and to suffer death penalty and also to pay a fine
of Rs.500/-, in default to suffer simple imprisonment for a period
of three months, for the offence under Section 6 read with Section
5 (l) (m) (r) of 2012 Act. All the substantive sentences were
directed to run concurrently.
4. Since the accused was sentenced to suffer death penalty
on two counts, the trial Court by letter dated 25-01-2023
submitted the proceedings to this Court in terms of Section 366 of
the Code of Criminal Procedure (for short, 'Cr.P.C.') for
confirmation of death penalty. The Registry numbered the said
letter as R.T.No. 1 of 2023. Questioning the conviction and
sentence recorded by the trial Court, the accused preferred
Criminal Appeal No. 191 of 2023.
5. The substance of the charges is that on 08-07-2021 at
about 3 p.m., the accused kidnapped the deceased, who was
aged about 7 years, at Ambavaram Village, Giddalur Mandal,
wrongfully confined her, committed rape on her and banged her
head to a wooden cot causing her death and in the said process,
he wiped blood with a quilt and packed the dead body in a plastic
bag and threw it in a canal, thereby committed the offences
punishable under Sections 201, 342, 366, 376-AB and 302 IPC
and Section 6 read with Section 5 (l) (m) (r) of 2012 Act. After
completion of trial, the trial Court convicted the accused as stated
supra.
6. Case of the prosecution in brief is thus:
The accused as well as the material prosecution witnesses
are residents of Ambavaram Village, Giddalur Mandal, Prakasam
District. P.W.2 is mother of the deceased. The deceased was
aged about 7 years and was studying II Class in M.P.U.P. School,
Ambavaram Village. Due to corona pandemic, schools were not
functioning and at the time of incident, the deceased was playing
with other children. While so, on 08-07-2021, the deceased went
for playing and returned back home. At about 3 p.m., P.W.2 saw
the accused taking the deceased by putting his hand on her
shoulders. As the accused is uncle by courtesy, P.W.2 was
under the impression that she will come back again. Till evening
5 p.m., the deceased did not return home. P.W.2 and her
husband searched for the deceased and they found the accused
and the deceased were missing. While so, on the next day i.e. on
09-07-2021 at about 3 p.m., Shaik Khammam Khasim Peera,
Village Revenue Assistant, Ambavaram Village-L.W.5 came to
P.W.1-Village Revenue Officer, Ambavaram Village, and informed
the latter that there was a plastic bag with packing in the canal
which is near to the road that leads to fields from the village.
Immediately, P.W.1 along with L.W.5 rushed to the said place
and noticed a hand visible in the said bag. He came to the
conclusion that dead body of a child was packed in the said
plastic bag. P.W.1 kept L.W.5 at that place and went to Giddalur
Police Station for lodging report. P.W.14-the then in-charge Sub
Inspector of Police, Giddalur Police Station, received Ex.P1-
Report from P.W.1 and registered a case in crime No. 379 of
2021 under Sections 302 and 201 IPC and submitted copies of
FIR to all the concerned. Ex.P25 is copy of FIR. Immediately,
P.W.14 went to P.W.15-Inspector of Police, Giddalur, who took up
investigation. P.W.15 sent intimation to Additional
Superintendent of Police, Prakasam District, for sending dog
squad to Ambavaram Village. P.W.15 recorded statement of
P.W.1 at police station. Then, P.W.15 secured the presence of
P.W.8 and one Yandala Pedda Rangaiah (L.W.16)-Mediators and
rushed to the scene of offence which is situated towards western
side of Ambavaram Village. P.W.15 found dead body of the
deceased in dry canal by the side of road covered in a plastic
bag. P.W.15 got lifted the bag from the canal with the help of one
Amaravathi Gurumurthi-L.W.7 and Amaravathi Sivarao-L.W.8 and
got it opened with them and found one female child dead body
with injuries on head and also on private parts. P.W.15 also
noticed one bite injury on right cheek. L.W.5 identified the dead
body as that of daughter of P.W.2. Immediately, P.W.2 along
with her relatives came to the canal and found the dead body of
her daughter in the said plastic bag. P.W.15 seized one yellow
colour plastic bag, one white colour plastic bag with bloodstains,
one colour Photostat copy of aadhar card belonging to the
accused, Chandranna Ramzan Tohfa bag, white colour thermocol
pieces, one yellow colour plastic bag with Thums Up symbol, one
Annapurna Gold brawn rice bag and V-guard symbol plastic fan
cover under Ex.P9-Panchanama and they were marked as
M.Os.1 to 8. P.W.15 also prepared Ex.P26-Rough Sketch at the
scene of offence. P.W.15 also got photographed the scene and
the photographs were marked as Ex.P27. P.W.15 secured the
presence of P.Ws.2, 5 and others and recorded their statements.
On the same day at about 8.30 p.m., Dog Squad came from
Ongole. PW.9-Armed Reserve Police Constable in Dog Squad
took the dog squad to the dead body of the deceased and after
smelling, the dog led to the house of the accused and pulled the
quilted cloth kept under a napa stone by its legs. The dog also
went near the cycle kept under Neem tree which belonged to the
accused. The panchanama was marked as Ex.P9. P.W.15 also
prepared route map from canal to the house of the accused and
returning again to the canal. Ex.P28 is route map. Then, P.W.15
recorded statement of P.W.9. P.W.15 rushed to the house of the
accused along with P.W.8 and L.W.16 and minutely observed his
house. P.W.15 seized quilted cloth, red colour sandal slippers
and one atlas cycle under Ex.P11-Panchanama in the presence
of P.W.8 and L.W.16 and they were marked as M.Os.9 to 11.
P.W.15 prepared Ex.P29-Rough Sketch at the house of the
accused. On the same day, P.W.15 examined some of the
witnesses. On 10-07-2021, P.W.15 held inquest over the dead
body of the deceased in the presence of P.W.8 and others.
Inquest report was marked as Ex.P2. In the inquest report, it was
opined by the mediators that the accused committed rape on the
deceased and killed her and to screen away the evidence, the
accused threw the dead body into canal by packing in a plastic
bag. P.W.15 added Sections 366, 342 and 376-AB IPC and
Section 6 of 2012 Act by filing Ex.P3-Memo before learned
Judicial I Class Magistrate, Giddalur. Thereafter, P.W.15 sent the
dead body for conducting post mortem examination. P.W.13-Civil
Assistant Surgeon, Community Health Centre, Giddalur,
conducted autopsy over the dead body of the deceased on
10-07-2021. P.W.13 preserved some items for expert opinion
and the preserved items were sent to Regional Forensic Science
Laboratory, Guntur, for expert opinion. R.F.S.L. Report was
marked as Ex.P23. After receipt of R.F.S.L. Report, P.W.13 gave
his final opinion under Ex.P24.
On 10-07-2021, P.W.16-the then Deputy Superintendent of
Police, Disha Women Police Station, having received instructions
from the Superintendent of Police, Prakasam District, took up
further investigation. P.W.16 received C.D. file from P.W.14. On
the same day, P.W.16 visited Ambavaram Village and examined
the scene of offence in the presence of P.W.8 and L.W.16.
P.W.16 once again examined P.Ws.1 to 4 and others and
recorded their statements. On 11-07-2021, on the requisition of
P.W.16, P.W.7-Headmaster, M.P.U.P. School, Ambavaram
Village, issued Ex.P7-Certificate which mentions the date of birth
of the deceased as 19-09-2014 and also issued Ex.P8-Certificate
certifying that the deceased was a bona fide student at the
institution studying III Class as on the date of offence. P.W.16
also recorded the statement of P.W.7. On the same day at about
2.30 p.m., on credible information, P.W.16 arrested the accused
near RTC Bus Stand, Giddalur, in the presence of P.W.8 and
L.W.16. The accused confessed about the commission of
offence. Panchanama for arrest and confession was marked as
Ex.P13. P.W.16 seized clothes worn by the accused under a
cover of panchanama and they were marked as M.Os.15 to 17.
The clothes were stained with blood and semen. The accused
led P.W.16 and mediators to his house where he committed rape
on the deceased and caused her death. The accused also led
the police and mediators to the place where he threw the dead
body into the canal. Once again, P.W.16 prepared Ex.P15-
Observation Report in the presence of P.W.8 and L.W.16.
P.W.16 produced the accused before concerned Court and the
accused was remanded to judicial custody. On 13-07-2021,
P.W.16 filed a memo before the Court concerned seeking to send
the accused for conducting potency test on him. P.W.12-the then
Assistant Professor, Department of Forensic Medicine, Guntur
Medical College, Guntur, conducted potency test on the accused
and issued Ex.P20-Potency Certificate opining that there is
nothing to suggest that the accused is not capable of performing
sexual intercourse. P.W.16 also forwarded the material objects to
Forensic Science Laboratory, Mangalagiri, for DNA analysis. On
14-07-2021, P.W.16 filed a memo-Ex.P41 before concerned
Court for collecting blood samples of the accused for developing
DNA profile. As per the orders of learned magistrate, P.W.16
forwarded the accused to Forensic Science Laboratory,
Mangalagiri, along with a requisition under Ex.P42. DNA report
was marked as Ex.P23. After receipt of RFSL Report and post
mortem report and after completion of investigation, P.W.16 filed
charge sheet.
7. In support of its case, the prosecution examined P.Ws.1 to
16 and got marked Exs.P1 to P44 apart from exhibiting M.Os.1 to
17.
8. When the accused was examined under Section 313
Cr.P.C., he denied the incriminating evidence appearing against
him and reported no defence evidence.
9. Accepting the evidence of prosecution witnesses, the trial
Court convicted the accused as aforesaid.
10. Heard Sri I.V.N.Raju, learned counsel appearing for the
appellant-accused, and Sri M.Lakshmi Narayana, learned Public
Prosecutor appearing for the respondent-State.
11. We have carefully analyzed the entire evidence available
on record. There are no eyewitnesses to the incident and the
prosecution rests its case on circumstantial evidence. The first
circumstance relied upon by the prosecution is last seen theory;
the second circumstance relied upon by the prosecution is the
accused carrying the dead body in a plastic bag on his cycle on
the fateful day at the relevant point of time; the third circumstance
relied upon by the prosecution is the accused throwing the plastic
bag containing the dead body of the deceased in a dry canal and
the last circumstance relied upon by the prosecution is medical
evidence adduced by P.Ws.10 to 13 coupled with Exs.P18 to P21
and R.F.S.L. Reports-Exs.P22 and P23.
12. To substantiate the first circumstance i.e. last seen theory,
the prosecution examined mother and grandmother of the
deceased as P.Ws.2 and 5 respectively. P.W.2 in her evidence
stated that on 08-07-2021, the deceased was playing with other
children as schools were closed during corona pandemic. After
playing with children, the deceased returned back and asked her
father for one rupee and thereafter, the deceased went and
purchased some snacks and returned back home. The deceased
asked P.W.2 for drinking water. P.W.2 went inside and brought
drinking water and she noticed the accused taking the deceased
by putting his hand on her shoulders. P.W.2 further stated that
she was under the impression that the deceased would return
back along with the accused as he is uncle by courtesy to the
deceased. P.W.2 waited till 5 p.m. in the evening but the
deceased did not return. P.W.5 in her evidence also stated that
when she questioned the deceased, the latter replied that she
went to bring Raja Khaini for the accused and as the same was
not available, she was going to the accused for returning the
money. P.Ws.2, 5 and other relatives searched for the deceased
and they found that the accused and the deceased were missing.
Though P.Ws.2 and 5 were cross-examined at length, the
defence could not elicit anything adverse to the prosecution
version. The evidence of P.Ws.2 and 5 further disclosed that on
the next day at about 3 p.m., on information, they went to the
canal and found the dead body of the deceased in a plastic bag.
As such, the evidence of P.Ws.2 and 5 clinchingly established
that the deceased was last seen in the company of the accused.
13. Coming to the second circumstance i.e. the accused
carrying the dead body of the deceased by packing in a plastic
bag on his cycle and going towards the canal, the evidence of
P.Ws.3 and 4, who are husband and wife residing in the same
line where the accused and P.W.2 were residing, is available on
record. P.W.3 in his evidence stated that he is eking out his
livelihood by running auto rickshaw; that on the fateful day at
about 8 a.m., he left the house and returned back at about 3 p.m.
for taking lunch and that at that time, he noticed the accused
carrying a plastic bag on his cycle and going towards western
side of the village. P.W.4 also deposed in the same lines stating
that she found the accused carrying a plastic bag on his cycle
and going towards western side of the village. Both P.Ws.3 and 4
were under the impression that the accused was carrying some
articles on his cycle for selling the same for the purpose of
consuming alcohol. They also found the accused coming back
and keeping his cycle under a tree in front of his house and went
to bazaar. It is the further evidence of P.Ws.3 and 4 that at about
5 p.m., they came to know that the daughter of P.W.2 was
missing. They further stated that the accused also found missing
in the village thereafter; that on the next day, they went to the
canal and found the dead body of the deceased and that they
informed about the accused carrying a plastic bag on his cycle to
P.Ws.1 and 2. From the evidence of P.Ws.3 and 4, the
prosecution is also able to prove that the accused carried the
dead body of the deceased by packing it in a plastic bag towards
western side of the village and returned back after sometime and
thereafter absconded from the village.
14. To substantiate the third circumstance, i.e. the accused
throwing the dead body in dry canal, relied upon by the
prosecution, the prosecution examined P.W.6 who is also
resident of the same village. P.W.6 in her evidence stated that on
the fateful day at the relevant point of time, while she was
returning from fields after attending coolie work and when she
reached near Sudda Bavi, she found the accused removing the
plastic bag from his cycle and throwing the same in dry canal and
she thought that the accused might have thrown some unused
vessels into the canal. P.W.6 further stated that on the same
day, she came to know that the daughter of P.W.2 was missing
and she also went along with P.W.2 in search of the deceased;
that on the next day at about 3 p.m., she also went to dry canal
and found the dead body of the deceased in a plastic bag and
that she immediately informed P.Ws.1, 2 and others that she saw
the accused while throwing the plastic bag into the canal on the
fateful day. As such, the evidence adduced through P.W.6
establishes the factum of throwing the dead body of the deceased
by the accused into dry canal. The prosecution is therefore able
to prove the last seen theory, the accused carrying the dead body
of the deceased in a plastic bag and throwing the same in dry
canal.
15. Admittedly, on the information given by L.W.5, P.W.1 went
to the canal and found the dead body of the deceased in a plastic
bag. P.W.1 immediately rushed to police station and lodged
Ex.P1-Report to P.W.14 on 09-07-2021. The above evidence
adduced by the prosecution clearly established the link of chain of
events to connect that the accused committed the offences
against the deceased. The prosecution also established the age
of the deceased by examining P.W.7 who issued Exs.P7 and P8.
16. Coming to the medical evidence, P.W.12-the then Assistant
Professor, Department of Forensic Medicine, Guntur Medical
College, Guntur, issued Ex.P20-Potency Certificate opining that
there is nothing to suggest that the accused is not capable of
performing sexual intercourse. P.W.13-Civil Assistant Surgeon,
Specialist at Community Health Centre, Giddalur, conducted
autopsy over the dead body of the deceased and found the
following injuries:
"Laceration of 2.5 centimetres x 2 centimetres x Bone Deep
2 centimetres above the left eyebrow-forehead;
Laceration of 3.5 centimetres x 2.5 centimetres x Bone
Deep 32 centimetres above the left eyebrow;
Lateral cantus of left eye;
Excoriation of skin 4 centimetres x 3 centimetres on the left
collar bone-insect eaten (Ant bite);
Excoriation of skin 6 centimetres x 2 centimetres o the neck
anterior aspect-insect eaten (Ant bite);
Contusion of 2x1 centimetres below left clavicle;
Linear contusion of 3 centimetre on the left angle of mouth;
and
Eccentric contusion of 3 centimetres radius with clear area
in the centre on right cheek - bite marks."
P.W.13 preserved the following items for expert opinion:
"Swabs are collected from
1. Labia Majora,
2. Perennial Region and
3. Vaginal Swab;
Sides-Smear collected from 1. Smear from vaginal cavity -
3 in number, 2. Smear from anus - 1 in number and 3.
Smear from stains of undergarments - 1 in number."
P.W.13 gave his final report opining that the cause of death of the
deceased is due to multiple injuries associated with sexual
assault and that as per DNA analysis report, the DNA extracted
from vaginal douching is matching with the blood sample
collected from the accused at Andhra Pradesh Forensic Science
Laboratory, Mangalagiri. P.W.13 issued post mortem report-
Ex.P21 and final report-Ex.P24. The evidence adduced through
P.WS.12 and 13 coupled with Exs.P20 to P24 clinchingly
established that it is the accused who killed the deceased after
committing rape on her. As such, the prosecution is able to prove
the guilt of the accused beyond reasonable doubt.
17. Insofar as sentence is concerned, the trial Court imposed
death penalty on two counts. It is settled law that unless a case
falls under rarest of rare cases, capital punishment cannot be
imposed. In Bachan Singh Vs. State of Punjab1, the Hon'ble
Apex Court held at paragraph Nos. 206 and 209 as under:
"206. Dr Chitale has suggested these mitigating factors:
AIR 1980 SC 898
Mitigating circumstances--
In the exercise of its discretion in the above cases, the
court shall take into account the following circumstances:
(1) That the offence was committed under the
influence of extreme mental or emotional
disturbance.
(2) The age of the accused. If the accused is
young or old, he shall not be sentenced to
death.
(3) The probability that the accused would not
commit criminal acts of violence as would
constitute a continuing threat to society.
(4) The probability that the accused can be
reformed and rehabilitated. The State shall by
evidence prove that the accused does not
satisfy the conditions (3) and (4) above.
(5) That in the facts and circumstances of the
case the accused believed that he was
morally justified in committing the offence.
(6) That the accused acted under the duress or
domination of another person.
(7) That the condition of the accused showed
that he was mentally defective and that the
said defect impaired his capacity to
appreciate the criminality of his conduct.
209. There are numerous other circumstances justifying
the passing of the lighter sentence; as there are
countervailing circumstances of aggravation. "We
cannot obviously feed into a judicial computer all
such situations since they are astrological
imponderables in an imperfect and undulating
society." Nonetheless, it cannot be over-emphasized
that the scope and concept of mitigating factors in
the area of death penalty must receive a liberal and
expansive construction by the courts in accord with
the sentencing policy writ large in Section 354(3).
Judges should never be bloodthirsty. Hanging of
murderers has never been too good for them. Facts
and Figures, albeit incomplete, furnished by the
Union of India, show that in the past, courts have
inflicted the extreme penalty with extreme
infrequency -- a fact which attests to the caution
and compassion which they have always brought to
bear on the exercise of their sentencing discretion in
so grave a matter. It is, therefore, imperative to
voice the concern that courts, aided by the broad
illustrative guide-lines indicated by us, will discharge
the onerous function with evermore scrupulous care
and humane concern, directed along the highroad of
legislative policy outlined in Section 354(3) viz. that
for persons convicted of murder, life imprisonment is
the rule and death sentence an exception. A real
and abiding concern for the dignity of human life
postulates resistance to taking a life through law's
instrumentality. That ought not to be done save in
the rarest of rare cases when the alternative option
is unquestionably foreclosed."
18. Learned counsel appearing for the appellant-accused
places reliance on Manoj and others Vs. State of Madhya
Pradesh2, wherein the Hon'ble Apex Court held at paragraph
Nos. 214 to 218 as follows:
"214. Capital punishment is prescribed in numerous IPC
offences, including murder, kidnapping for ransom,
rape and injury causing death or leaving a woman in
a vegetative state, rape or gang rape of a child below
12 years' old, dacoity with murder, among other
offences. In Bachan Singh v. State of Punjab
[Bachan Singh v. State of Punjab, (1980) 2 SCC
684 : 1980 SCC (Cri) 580] (hereafter "Bachan
Singh"), this Court had upheld the imposition of death
penalty as an alternate punishment under Section
302IPC on the strength of the 35th Report of the Law
Commission of India (1967), the judgment in
Jagmohan Singh v. State of U.P. [Jagmohan Singh v.
State of U.P., (1973) 1 SCC 20 : 1973 SCC (Cri) 169]
(which had also noted that the 35th Report
advocated for retention) and in several subsequent
cases decided by this Court, in which the death
penalty was recognized to be a deterrent. It laid
emphasis on the then recently added Sections
253(2) and 354(3) Cr.P.C. which provide for
bifurcated pre-sentence hearing and sentencing
(2023) 2 SCC 353
procedure on conviction of capital offences, to
conclude that this form of punishment continued to
have legislative backing and thereby, represented
the will of the people.
215. It is undeniable that there have been shifts in how It
is undeniable that there have been shifts in how
punishment in capital offences are dealt with. This is
apparent when developments are looked at
holistically, or at a macro level: the amendments to
the Cr.P.C. by Parliament, the 35th and 262nd Law
Commission Reports which stand over 30 years
apart, and the precedents of this Court, across the
decades. Initially, the law imposed a requirement of
written reasons for not imposing death penalty, which
was removed in 1955. In 1973, through further
amendment to the CrPC and insertion of Section
354(3) -- life imprisonment became the norm and
imposition of death penalty required "special
reasons"; and through Section 253(2) -- sentencing
required separate consideration from the question of
conviction. In both phases i.e. post-1955 and post-
1973, capital punishment was upheld to be
constitutional by five-Judge Benches of this Court in
Jagmohan Singh [Jagmohan Singh v. State of U.P.,
(1973) 1 SCC 20 : 1973 SCC (Cri) 169] and Bachan
Singh [Bachan Singh v. State of Punjab, (1980) 2
SCC 684 : 1980 SCC (Cri) 580] , respectively.
216. The 262nd Law Commission Report on Death
Penalty (2015) (hereafter "the 262nd Report"), is a
result of this Court's references in primarily two
cases. Firstly, in Santosh Kumar Satishbhushan
Bariyar v. State of Maharashtra [Santosh Kumar
Satishbhushan Bariyar v. State of Maharashtra,
(2009) 6 SCC 498, para 112 : (2009) 2 SCC (Cri)
1150] (hereafter "Santosh Bariyar") where, after
taking note of the UN General Assembly Resolution
62/149 [ Adopted on 18-12-2007.] it was pointed out
that credible research was required to shape an
informed discussion and debate, on the contentious
issue of death sentence. Secondly, the judgment in
Shankar Kisanrao Khade v. State of Maharashtra
[Shankar Kisanrao Khade v. State of Maharashtra,
(2013) 5 SCC 546, paras 148-149 : (2013) 3 SCC
(Cri) 402] tasked the Law Commission to resolve the
issue of whether death penalty is a deterrent
punishment, is retributive justice, or serves an
incapacitative goal; and to study the difference in
approach adopted by the judiciary (rarest of rare) and
the executive (what was termed as unknown) while
granting commutation. In attempting to fulfil this
mandate, the Commission discerned an urgent need
for re-examination of its own earlier
recommendations on the death penalty (in its 35th
Report, 1967), given the drastic change in social,
economic, and cultural contexts of the country since
the 35th Report, and arbitrariness which has
remained a major concern in the adjudication of
death penalty cases since Bachan Singh [Bachan
Singh v. State of Punjab, (1980) 2 SCC 684 : 1980
SCC (Cri) 580] laid down the foundational principle of
"rarest of rare".
217. Reflective of changed circumstances and evolving
discourse, the Report marks a shift in the approach
towards the death penalty in India, going so far as to
recommend abolition in all offences, except those
relating to terrorism. A large part of the Report
focusses on courts' discretion and judicial reasoning
when it comes to sentencing. It concludes that death
penalty sentencing in India has been based on an
arbitrary application of the Bachan Singh [Bachan
Singh v. State of Punjab, (1980) 2 SCC 684 : 1980
SCC (Cri) 580] principle, and has become Judge-
centric, based on the personal predilection of Judges
-- a concern which was alluded to even by this Court
in Swamy Shraddananda (2) v. State of Karnataka
[Swamy Shraddananda (2) v. State of Karnataka,
(2008) 13 SCC 767 : (2009) 3 SCC (Cri) 113] and
analysed extensively again in Santosh Bariyar
[Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra, (2009) 6 SCC 498, para 112 : (2009) 2
SCC (Cri) 1150] , followed by Sangeet v. State of
Haryana [Sangeet v. State of Haryana, (2013) 2 SCC
452 : (2013) 2 SCC (Cri) 611] , Mohd. Farooq Abdul
Gafur v. State of Maharashtra [Mohd. Farooq Abdul
Gafur v. State of Maharashtra, (2010) 14 SCC 641:
(2011) 3 SCC (Cri) 867], and more recently in
Chhannu Lal Verma v. State of Chhattisgarh
[Chhannu Lal Verma v. State of Chhattisgarh, (2019)
12 SCC 438 : (2019) 4 SCC (Cri) 402] (hereafter
"Chhannu Lal Verma").
The death penalty framework and how to apply
it for "principled sentencing"
218. This Court in Bachan Singh [Bachan Singh v.
State of Punjab, (1980) 2 SCC 684 : 1980 SCC
(Cri) 580] while upholding the constitutionality of
capital punishment, categorically ruled that the
new CrPC of 1973 marked a shift as it
bifurcated the criminal trial to include a pre-
sentence hearing [under Section 235(2)], and
further mandated the sentencing court to outline
the "special reasons" [under Section 354(3)] or
absence of them, by considering circumstances
both of the crime and the criminal. The Court
also noted that while broad guidelines or
indicators may be given, they cannot be put into
water-tight compartments that curb discretion of
any Judge to do justice in a given individual
case: (SCC pp. 739 & 748, paras 163 & 201)
"163. ... Now, Section 235(2) provides for a
bifurcated trial and specifically gives the
accused person a right of pre-sentence hearing,
at which stage, he can bring on record material
or evidence, which may not be strictly relevant
to or connected with the particular crime under
inquiry, but nevertheless, have, consistently with
the policy underlined in Section 354(3), a
bearing on the choice of sentence. The present
legislative policy discernible from Section 235(2)
read with Section 354(3) is that in fixing the
degree of punishment or making the choice of
sentence for various offences, including one
under Section 302 of the Penal Code, the court
should not confine its consideration "principally"
or merely to the circumstances connected with
the particular crime, but also give due
consideration to the circumstances of the
criminal.
***
201. ... As we read Sections 354(3) and 235(2)
and other related provisions of the 1973 Code, it
is quite clear to us that for making the choice of
punishment or for ascertaining the existence or
absence of "special reasons" in that context, the
court must pay due regard both to the crime and
the criminal. What is the relative weight to be
given to the aggravating and mitigating factors,
depends on the facts and circumstances of the
particular case. More often than not, these two
aspects are so intertwined that it is difficult to
give a separate treatment to each of them. This
is so because "style is the man". In many cases,
the extremely cruel or beastly manner of the
commission of murder is itself a demonstrated
index of the depraved character of the
perpetrator. That is why, it is not desirable to
consider the circumstances of the crime and the
circumstances of the criminal in two separate
watertight compartments. In a sense, to kill is to
be cruel and therefore all murders are cruel. But
such cruelty may vary in its degree of culpability.
And it is only when the culpability assumes the
proportion of extreme depravity that "special
reasons" can legitimately be said to exist."
(Emphasis in original)"
Placing reliance on the aforesaid judgment, learned counsel
appearing for the appellant-accused submitted that the trial Court
has not even considered the possibility of reformation of the
accused and that the case on hand does not fall under rarest of
rare cases to impose capital punishment and the mitigating
circumstances submitted by the authorities would suffice that
capital punishment is not warranted in the case on hand.
19. By order dated 12-07-2023, this Court directed the District
Collector, Prakasam District, the Superintendent of Police,
Prakasam District, and the Superintendent, Central Prison,
Rajamahendravaram, to submit their reports in terms of the
judgment of the Hon'ble Supreme Court in Manoj and others (2nd
supra). Accordingly, reports are submitted by the authorities
concerned. A perusal of the reports submitted by the authorities
would go to show that wife of the accused discarded him and she
has been residing elsewhere along with her minor daughter; that
there is no previous involvement of the accused in criminal cases
and that parents of the accused are eking out their livelihood by
doing coolie works and they are residing with their elder daughter.
20. The Hon'ble Apex Court in Manoj and others (2nd supra)
held at paragraph Nos. 234 to 236 as follows:
"Theories of punishment
234. The 262nd Report speaks extensively to the
penological justification of the death penalty. It finds that
there is inconclusive evidence that this form of punishment
has more of a deterrent effect, in comparison to life
imprisonment. Dismissing the retributive theory of
punishment on the ground that it suffers from lack of
guidance on quantifying the punishment that would be
appropriate to impose, it categorically states that:
"7.1.2. Capital punishment fails to achieve any
constitutionally valid penological goals.
7.1.3. Focusing on death penalty as the ultimate
measure of justice to victims, the restorative and
rehabilitative aspects of justice are lost sight of.
Reliance on the death penalty diverts attention from
other problems ailing the criminal justice system such
as poor investigation, crime prevention and rights of
victims of crime."
235. While the 262nd Report recommends abolition
of the death penalty on this ground, in addition to
sentencing having become Judge-centric or arbitrary, it
has not prompted parliamentary intervention. Whether
the death penalty deserves a relook [as recommended
by Kurian Joseph, J. (dissenting) in Chhannu Lal Verma
[Chhannu Lal Verma v. State of Chhattisgarh, (2019) 12
SCC 438 : (2019) 4 SCC (Cri) 402] ], in light of the
262nd Law Commission Report, evolving jurisprudence,
public discourse and international standards of human
rights, is outside the purview of this Court's jurisdiction
given the Constitution Bench decision in Bachan Singh
[Bachan Singh v. State of Punjab, (1980) 2 SCC 684 :
1980 SCC (Cri) 580] , and a question best left for the
legislature to critically consider. In this backdrop, what
this Court can do, is try and bolster the existing
sentencing framework. This is possible only by giving
true meaning to the existing guidelines (without falling
into the trap of "categorizing" crimes that automatically
warrant death penalty). To do so, this Court finds it
necessary to lay out certain practical guidelines
(elaborated below) that can facilitate consideration of
mitigating circumstances as recognized in Bachan
Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC
684 : 1980 SCC (Cri) 580] , and consequently ensure
uniform application of this framework.
236. The 262nd Report recognized the paradigm
shift, in policy and discourse, towards a reformative and
rehabilitative response to crime, and the development
of jurisprudence such that adjudging a case to be
"rarest of rare" was not sufficient, and special emphasis
had to be placed in considering whether the offender is
amenable to reform. Implicit in this shift is the
understanding that the criminal is not a product of only
their own decisions, but also a product of the State and
society's failing, which is what entitles the accused to a
chance of reformation. Thus, making life imprisonment
the norm, and death penalty the exception. In Lehna v.
State of Haryana [Lehna v. State of Haryana, (2002) 3
SCC 76 : 2002 SCC (Cri) 526] while deciding whether
the facts in that case were appropriate for death
penalty, traced this shift in approach : (SCC pp. 83-84,
para 14)
"14. ... Section 302IPC prescribes death or life
imprisonment as the penalty for murder. While doing so,
the Code instructs the court as to its application. The
changes which the Code has undergone in the last
three decades clearly indicate that Parliament is taking
note of contemporary criminological thought and
movement. It is not difficult to discern that in the Code,
there is a definite swing towards life imprisonment.
Death sentence is ordinarily ruled out and can only be
imposed for "special reasons", as provided in Section
354(3). There is another provision in the Code which
also uses the significant expression "special reason". It
is Section 361. Section 360 of the 1973 Code re-enacts,
in substance, Section 562 of the Criminal Procedure
Code, 1898 (in short "the old Code"). Section 361 which
is a new provision in the Code makes it mandatory for
the court to record "special reasons" for not applying the
provisions of Section 360. Section 361 thus casts a duty
upon the court to apply the provisions of Section 360
wherever it is possible to do so and to state "special
reasons" if it does not do so. In the context of Section
360, the "special reasons" contemplated by Section 361
must be such as to compel the court to hold that it is
impossible to reform and rehabilitate the offender after
examining the matter with due regard to the age,
character and antecedents of the offender and the
circumstances in which the offence was committed.
This is some indication by the legislature that
reformation and rehabilitation of offenders and not mere
deterrence, are now among the foremost objects of the
administration of criminal justice in our country. Section
361 and Section 354(3) have both entered the statute
book at the same time and they are part of the
emerging picture of acceptance by the legislature of the
new trends in criminology. It would not, therefore, be
wrong to assume that the personality of the offender as
revealed by his age, character, antecedents and other
circumstances and the tractability of the offender to
reform must necessarily play the most prominent role in
determining the sentence to be awarded. Special
reasons must have some relation to these factors.
Criminal justice deals with complex human problems
and diverse human beings. A Judge has to balance the
personality of the offender with the circumstances,
situations and the reactions and choose the appropriate
sentence to be imposed."
(Emphasis supplied)"
In view of the principle laid down in the aforesaid judgment, with
an advent of goal of reformation in the recent past, the society
must stride towards reformation and rehabilitation.
21. In Sundar @ Sundarrajan Vs. State by Inspector of
Police3,4 the Hon'ble Apex Court held thus: (paragraphs 63, 64 &
76)
"63. In Santa Singh v State of Punjab (1976) 4 SCC 190,
a two judge Bench of this Court highlighted the
requirement of having a separate sentencing hearing
2023 LiveLaw (SC) 217
in view of Section 235(2) of the CrPC and noted that
the stage of sentencing was as important a stage in
the process of administering criminal justice as the
adjudication of guilt.
64. The judgment of the majority in the Constitution
Bench decision in Bachan Singh v State of
Punjab (1980) 2 SCC 684 reiterated the
importance of a sentencing hearing. The Court
noted that:
"151. Section 354(3) of the CrPC, 1973, marks a
significant shift in the legislative policy underlying
the Code of 1898, as in force immediately before
April 1, 1974, according to which both the
alternative sentences of death or imprisonment for
life provided for murder and for certain other
capital offences under the Penal Code, were
normal sentences. Now according to this changed
legislative policy which is patent on the face of
Section 354(3), the normal punishment for murder
and six other capital offences under the Penal
Code, is imprisonment for life (or imprisonment for
a term of years) and death penalty is an exception.
[...]
152. In the context, we may also notice Section
235(2) of the Code of 1973, because it makes not
only explicit, what according to the decision in
Jagmohan's case was implicit in the scheme of
the Code, but also bifurcates the trial by providing
for two hearings, one at the pre-conviction stage
and another at the pre-sentence stage.
[...]
163. [...] Now, Section 235(2) provides for a
bifurcated trial and specifically gives the accused
person a right of pre-sentence hearing, at which
stage, he can bring on record material or evidence,
which may not be strictly relevant to or connected
with the particular crime under inquiry, but
nevertheless, have, consistently with the policy
underlined in Section 354(3) a bearing on the
choice of sentence. The present legislative policy
discernible from Section 235(2) read with Section
354(3) is that in fixing the degree of punishment or
making the choice of sentence for various
offences, including one under Section 302, Penal
Code, the Court should not confine its
consideration "principally" or merely to the
circumstances connected with particular crime, but
also give due consideration to the circumstances
of the criminal."
(Emphasis supplied).
...
76. In Rajendra Pralhadrao Wasnik v State of
Maharashtra (2019) 12 SCC 460, a three judge bench
of this Court took note of the line of cases of this Court
which underline the importance of considering the
probability of reform and rehabilitation of the convicted
accused before sentencing him to death. The court
observed:
"43. At this stage, we must hark back to Bachan
Singh and differentiate between possibility,
probability and impossibility of reform and
rehabilitation. Bachan Singh requires us to
consider the probability of reform and rehabilitation
and not its possibility or its impossibility. [...]
45. The law laid down by various decisions of this
Court clearly and unequivocally mandates that the
probability (not possibility or improbability or
impossibility) that a convict can be reformed and
rehabilitated in society must be seriously and
earnestly considered by the courts before
awarding the death sentence. This is one of the
mandates of the "special reasons" requirement of
Section 354(3) Cr.P.C. and ought not to be taken
lightly since it involves snuffing out the life of a
person. To effectuate this mandate, it is the
obligation on the prosecution to prove to the court,
through evidence, that the probability is that the
convict cannot be reformed or rehabilitated. This
can be achieved by bringing on record, inter alia,
material about his conduct in jail, his conduct
outside jail if he has been on bail for some time,
medical evidence about his mental make-up,
contact with his family and so on. Similarly, the
convict can produce evidence on these issues as
well.
46. If an inquiry of this nature is to be conducted,
as is mandated by the decisions of this Court, it is
quite obvious that the period between the date of
conviction and the date of awarding sentence
would be quite prolonged to enable the parties to
gather and lead evidence which could assist the
trial court in taking an informed decision on the
sentence. But, there is no hurry in this regard,
since in any case the convict will be in custody for
a fairly long time serving out at least a life
sentence.
47. Consideration of the reformation, rehabilitation
and reintegration of the convict into society cannot
be overemphasized. Until Bachan Singh, the
emphasis given by the courts was primarily on the
nature of the crime, its brutality and severity.
Bachan Singh placed the sentencing process into
perspective and introduced the necessity of
considering the reformation or rehabilitation of the
convict. Despite the view expressed by the
Constitution Bench, there have been several
instances, some of which have been pointed out in
Bariyar and in Sangeet v. State of Haryana where
there is a tendency to give primacy to the crime
and consider the criminal in a somewhat
secondary manner. As observed in Sangeet "In the
sentencing process, both the crime and the criminal
are equally important." Therefore, we should not forget
that the criminal, however ruthless he might be, is
nevertheless a human being and is entitled to a life of
dignity notwithstanding his crime. Therefore, it is for the
prosecution and the courts to determine whether such
a person, notwithstanding his crime, can be reformed
and rehabilitated. To obtain and analyze this
information is certainly not an easy task but must
nevertheless be undertaken. The process of
rehabilitation is also not a simple one since it involves
social reintegration of the convict into society. Of
course, notwithstanding any information made
available and its analysis by experts coupled with the
evidence on record, there could be instances where
the social reintegration of the convict may not be
possible. If that should happen, the option of a long
duration of imprisonment is permissible.
(Emphasis supplied)"
The Hon'ble Apex Court observed that the process of
rehabilitation is not a simple one since it involves social
reintegration of the convict into society.
22. Criminal Justice System is more punitive than intended.
The system is touted to be reformable and rehabilitative. The
objectives of the Indian Criminal Justice System include
penalizing, reforming and rehabilitating the offender. Reformation
is its final goal as the system asserts to be more rehabilitative
than retributive.
23. When such is the view taken by the Hon'ble Apex Court in
the recent past and having regard to the mitigating circumstances
stated supra, this Court is of the view that death sentence
imposed on the accused is harsh in the facts and circumstances
of the present case.
24. For the aforementioned reasons, the death sentence
imposed on the accused under two counts i.e. for the offence
under Section 302 IPC and Section 6 read with Section 5 (l) (m)
(r) of 2012 Act is modified, instead the accused is sentenced to
suffer rigorous imprisonment for a period of 20 years without any
reprieve or remission and also to pay a fine of Rs.500/-, in default
to suffer simple imprisonment for a period of three months, under
each count i.e. under Section 302 IPC and Section 6 read with
Section 5 (l) (m) (r) of 2012 Act. The conviction and sentence
recorded for the offences under Sections 201, 342, 366 and
376-AB IPC shall remain unaltered. All the substantive
sentences are directed to run concurrently. Sentence of
imprisonment already undergone by the appellant-accused shall
be given set off under Section 428 Cr.P.C.
25. With the above modification in sentence, the criminal
appeal is partly allowed and the reference is answered
accordingly. Pending miscellaneous applications, if any, shall
stand disposed of in consequence.
___________________
K.SURESH REDDY, J.
_______________________
K.SREENIVASA REDDY, J.
Date: 23-10-2024,
Note: L.R. copy to be marked.
B/O
JSK
HON'BLE SRI JUSTICE K.SURESH REDDY
AND
HON'BLE SRI JUSTICE K.SREENIVASA REDDY
REFERRED TRIAL No. 1 OF 2023
AND
CRIMINAL APPEAL No. 191 OF 2023
(Common judgment of the Division Bench delivered by
Hon'ble Sri Justice K.Suresh Reddy)
DATE: 23RD OCTOBER, 2024
JSK
