Bharat Singh vs State (Nct Of Delhi)
2014 Latest Caselaw 5394 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI



                         DEATH SENTENCE REF. No. 1 of 2013

        STATE                                            ... Petitioner
                         Through: Mr. Varun Goswami, Advocate.
                                  versus



        BHARAT SINGH                           ..... Respondent
                 Through: Mr. Sumeet Verma, Amicus Curiae with
                 Mr. Amit Kala, Advocate.

                                             AND

                         CRIMINAL APPEAL No. 509 of 2013

        BHARAT SINGH                           ..... Appellant
                 Through: Mr. Sumeet Verma, Amicus Curiae with
                 Mr. Amit Kala, Advocate.

                                  versus

        STATE (NCT OF DELHI)                ... Respondent
                 Through: Mr. Varun Goswami, Advocate.
        CORAM:
        HON'BLE DR. JUSTICE S. MURALIDHAR
        HON'BLE Ms. JUSTICE MUKTA GUPTA
                                  ORDER

% 31.10.2014

1. By the judgement dated 17th April 2014, this Court had confirmed

the conviction and sentence awarded to the Appellant Bharat Singh for

the offence under Section 376 (2) (f) Indian Penal Code ('IPC') i.e. life

imprisonment together with fine of Rs.50,000 and in default to

undergo rigorous imprisonment („RI‟) for a period of one year. The

Court also confirmed his conviction for the offence under Section 302

IPC. By this further order, which should be read in continuation of the

above judgment, the Court pronounces on the question of sentence for

the offence under Section 302 IPC.

2. On the question whether the Appellant should be awarded the death

penalty as recommended by the trial Court, for the offence under

Section 302 IPC, the Court in the aforementioned judgment dated 17th

April 2014 discussed in some detail the decisions of the Supreme

Court from Bachan Singh v. State of Punjab (1980) 2 SCC 684

onwards. After noting that in the present case, where the Appellant has

been convicted for the rape and murder of a three year old child, there

was little difficulty as regards the existence of the 'aggravating

circumstances' i.e. the satisfaction of the 'crime test', the Court noted

that "no materials have been placed by the State to show whether the

accused is capable of being reformed and rehabilitated." This was in

the context of two of the mitigating circumstances suggested by Dr.

Y.V. Chitaley, Senior Advocate, and noted in para 206 (3) and (4) of

the decision in Bachan Singh viz., "the probability that the accused

would not commit criminal acts of violence as would constitute a

continuing threat to society" and "the probability that the accused can

be reformed and rehabilitated." The Supreme Court in Anil @

Anthony Arokiaswamy Joseph v. State of Maharashtra 2014 (2)

SCALE 554 directed that "the criminal courts, while dealing with

offences like Section 302 IPC, after conviction, may, in appropriate

cases, call for a report to determine, whether the accused could be

reformed or rehabilitated..." In Birju v. State of MP 2014 (2) SCALE

293, the Supreme Court suggested that in appropriate cases the Court

can also call for a report from the PO while applying the Crime Test

Guideline No.3 as laid down in Shankar Kisanrao Khade v. State of

Maharashtra (2013) 5 SCC 546. It was further observed in the said

decision that "Court can then examine whether the accused is likely to

indulge in commission of any crime or there is any probability of the

accused being reformed or rehabilitated."

3. This led the Court, in its judgment dated 17th April 2014, to call for

a report of the Probation Officer („PO‟) on the following two aspects:

(i) Is there a probability that, in the future, the accused would commit criminal acts of violence as would constitute a continuing threat to society?

(ii) Is there a probability that the accused can be reformed and rehabilitated?

4. The Court had in paras 69 and 70 of the aforementioned judgment

issued certain specific directions for the PO to follow in preparing the

report. Pursuant to the above directions, Ms. Priyanka Yadav, the PO,

has submitted a detailed Social Investigation Report („SIR‟) dated 28th

October 2014 based on a personal interview with the Appellant in

Tihar Jail, Delhi, interviews with his family members and neighbours

in his native place in Siwan, Bihar, the report of the local panchayat

and a report from the Police Station (PS) Basatpur. The SIR also

incorporates inputs of the Clinical Psychologist, Psychiatric Social

Worker and Superintendent of Jail, Tihar as well as the assessment by

the Medical Board of the Institute of Human Behaviour and Allied

Sciences („IHBAS‟).

5. The main points that can be gathered from the SIR are that the

Appellant is 64 years, hails from village Khera Bansoi, Post Office

Basatpur, District Siwan in Bihar; he belongs to a poor agricultural

family; is the eldest in his family has never married; has a good

rapport with his village people and family members; is illiterate and

"his main priority was to earn and support his family"; he has worked

as a labourer throughout for several years in Shillong, Patna, Jalandhar

and finally as a security guard in a farm house in Delhi; he has a twin

brother who is married and the Appellant has special affection for his

twin brother's son who got married recently; according to his family

the Appellant has "never looked in any disrespectful way to any lady";

the villagers gave the PO "a favourable report about his behaviour,

character and conduct"; the female folk specially mentioned that "he

never teased or intimidated any girl or lady here". The PO noted that

the village panchayat wish that the Appellant's death sentence should

be converted to life sentence. There was no report of any case against

the Appellant at PS Basatpur. The SIR notes that he never took care of

his appearance; developed a drinking habit which became worse when

he shifted to Delhi. From her interactions the PO has "inferred" that

the Appellant used to frequent sex workers. According to the PO "the

influence of independent city life and availability of liquor and women

has played a role in the commitment of the offence to some extent."

6. The PO in her interactions with the Appellant did not note any sense

of repentance. At the same time, she notes in the SIR that jail inmates

reported that the Appellant "keeps to himself and is not aggressive but

occasionally gets irritated; "he has a helping nature and renders

services to his old and ailing inmates and is very hard working person"

and for the last three years he has been working eight hours a day and

"does not have leisure time". The PO notes that the feeling of

repentance "needs to be developed through reformative and corrective

services and it will take a long process for reformation and

reintegration into the society." The PO has in the SIR, inter alia, made

the following recommendation:

"As also recommended by the clinical psychological assessment by medical board of IHBAS that he may be reformed with the intervention of social correctional measures (Report Annexed as Annexure- VI). But these services are still not available in Jail premises.

After imparting the said social and correctional measures for some years there should be a second review even before giving the parole as he may cause threat to the society and there are chances of recidivism and it is too early to reintegrate him in the society."

7. The report of the Medical Board of IHBAS enclosed with the SIR is

dated 15th October 2014. The seven-member Medical Board

comprised its Chairman, Dr. N.G. Desai, one Additional Professor of

Clinical Psychology, two Associate Professors of Psychiatry, one

Assistant Professor of Psychiatry, one Clinical Psychologist and one

Psychiatric Social Worker. The said report reads as under:

"The index case Mr. Bharat Singh was examined by Standing Medical Board on 15.10.2014 of IHBAS comprising of Psychiatrists, Clinical Psychologists and Psychiatric Social Worker with clinical experience of more than 10 years and Medical Board opined that-

1. Medical Board did not find any evidence of major psychiatric illness, no maladaptive personality traits or disorder especially anti social personality.

2. As per the available information, there is no prior history of any alcoholism or any psychoactive substance abuse except Nicotine use.

3. In view of above, there is nothing to suggest that the index client cannot be reformed and reintegrated and reformative process through social correctional measures." (emphasis supplied)

8. The report of the Medical Board of IHBAS, which has been

referred to in the SIR of the PO gives a definitive unanimous

conclusion that there is nothing to suggest that the Appellant cannot be

reformed and reintegrated, and put on to the reformative process

through "social correctional measures." The PO has mentioned in the

SIR that a second review should be undertaken "after imparting the

said social and correctional measures." In this regard the Court would

like to draw the attention of the prison authorities to the 'Introductory

Handbook on Prevention of Recidivism and Social Integration of

Offenders' brought out in December 2012 by the United Nations

Office on Drugs and Crimes. Chapter IX of the said document has a

section focussing on social reintegration of elderly prisoners. Relevant

to the present case, the Court notes the positive feedback received by

the PO from the jail authorities as regards the Appellant's conduct in

jail and his preparedness to render services "to his old and ailing

inmates."

9. In light of the above reports, the Court is persuaded to conclude that

there exists a probability that the Appellant can be reformed and

rehabilitated. The Appellant has been in custody only since April

2011. In the course of his serving imprisonment for life, there would

be sufficient opportunity to evaluate the positive effects of the

correctional measures. His continued incarceration would ensure that

he would not commit criminal acts as would constitute a continuous

threat to the society.

10. Consequently, the Court declines to confirm the death sentence

recommended to be awarded to the Appellant by the trial Court and

instead sentences the Appellant to imprisonment for life for the

offence under Section 302 IPC. The sentence would run concurrently

with the sentence awarded under Section 376 (2) (f) IPC. The fine

amount of Rs. 50,000 for the offence under Section 302 IPC is left

unaltered and it is directed that in default of payment of fine the

Appellant shall undergo RI for one year.

11. The death reference is answered accordingly. The criminal appeal

is disposed of in the above terms.

12. A certified copy of this order be forthwith delivered to the

Superintendent, Tihar Jail, New Delhi who will without delay give it

to the Appellant.

S. MURALIDHAR, J.

MUKTA GUPTA, J.

OCTOBER 31, 2014 dn