Uttarakhand High Court
State Of Uttarakhand vs Sartaj on 16 May, 2024
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE MS. RITU BAHRI
AND
HON'BLE MR. JUSTICE ALOK KUMAR VERMA
Reserved on : 10.04.2024
Delivered on : 16.05.2024
CRIMINAL REFERENCE NO. 04 OF 2018
State of Uttarakhand ...... Appellant
Versus
Sartaj ...... Respondent
WITH
CRIMINAL APPEAL NO. 20 OF 2019
Sartaj ...... Appellant
Versus
State of Uttarakhand ...... Respondent
WITH
CRIMINAL APPEAL NO. 21 OF 2019
Sartaj ...... Appellant
Versus
State of Uttarakhand ...... Respondent
Presence:-
Mr. J.S. Virk, learned Deputy Advocate General with Mr. Rakesh
Kumar Joshi, learned Brief Holder for the State of Uttarakhand.
Mr. Ram Singh Sammal with Ms. Sarita Bisht, learned counsel for the
accused-appellant Sartaj.
The Court made the following:
2
JUDGMENT:
(per Hon'ble the Chief Justice Ms. Ritu Bahri)
A reference has been sent by the IV Additional
Sessions Judge, Haridwar, in S.T. No. 14 of 2017, State
Vs Sartaj, passed vide judgment and order dated
29.11.2018, whereby the respondent Sartaj has been
convicted for the offences punishable under Section 302,
307 of IPC. He has been further convicted for the
offence under Section 4/25 of Arms Act, in S.T. No. 15 of
2017. The convict / respondent was sentenced to death
along with a fine of Rs.40,000/- in respect of offence
punishable under Section 302 IPC, and he was further
sentenced to undergo imprisonment for life along with a
fine of Rs.30,000/- in respect of offence punishable
under Section 307 IPC. Convict / respondent has also
been sentenced to undergo six months rigorous
imprisonment in respect of offence punishable under
Section 4/25 of Arms Act along with a fine of Rs.1,000/.
All the sentences were directed to run concurrently,
except the death penalty. Against said judgment and
order, criminal appeals have also been filed by the
convict.
2) Prosecution story, in brief, is that on
24.09.2016, at around 02:35 A.M., a complaint was
submitted by the complainant Arif to the S.H.O., P.S.
Ranipur, District Haridwar, stating therein that on
24.09.2016, at about 01:00 A.M. in the night, when he
was sleeping with his family at his house, Raddu, who
lives in the back street, came to his house with
Shahzad's children Ruhi, Rihaan, Khushi and Ayaan and
told the complainant that accused Sartaj has murdered
his sister-in-law Rukhsana by stabbing her and slitting
her throat, and accused Sartaj was stabbing Shahzad
outside Shamsher's house. Accused had also attacked
Khushi with knife in order to kill her, but Raddu saved
Khushi. Raddu had come to leave the children in the
house of complainant Arif. On this, the complainant
immediately left the children with his mother and rushed
with Raddu, when the complainant reached outside
Shahzad's house, he found many people gathered
outside the house. Shahzad's body was lying outside the
house in front of Shamsher's gate and the villagers had
locked accused Sartaj inside the house, then the police
also came. The police opened the door and arrested
accused Sartaj with a knife. When the complainant and
Raddu went inside the house, they saw that Rukhsana's
body was lying on the left side.
3) After the complaint was made Case Crime No.
248 / 2016, under Section 302, 307 IPC, and Case Crime
No. 246 / 2016, under Section 4/25 Arms Act, were
registered at P.S. Ranipur. The Investigating Officer
investigated the crime, recorded the statements of the
witnesses, inspected the site, prepared a map, and after
completion of investigation, filed charge sheet against
the accused under Sections 302, 307 IPC, and one under
Section 4/25 Arms Act.
4) Thereafter, on 16.12.2016, learned Additional
Chief Judicial Magistrate, Haridwar took cognizance of
the matter, and committed the case for trial in the court
of Sessions. On 16.01.2017, learned Sessions Judge,
Haridwar framed charges under Section 302, 307 IPC,
and one under Section 4/25 of Arms Act against the
accused Sartaj. The accused pleaded not guilty and
claimed to be tried.
5) To prove its case, prosecution got examined
P.W.1 Raddu, P.W.2 Khushi, P.W.3 Ruhi, P.W.4 Arif,
P.W.5 S.I. Shyam Singh, P.W.6 Dr. S.K. Dwivedi, P.W.7
Constable Rajesh Chauhan, P.W.8 Dr. Manoj Kumar
Dwivedi, P.W.9 Aslam, P.W.10 Taufiq, P.W.11 S.I. L.S.
Butola, P.W.12 S.I. Dil Mohan Singh, P.W.13 S.I. Ritu
Raj Singh, P.W.14 Inspector Pradeep Bisht, P.W.15 S.I.
Manish Singh Negi and P.W.16 S.I. Kuldeep Singh.
6) In the documentary evidence on behalf of the
prosecution, copy of the complaint (Ext. A-1), Memo
taking possession of blood and soil (Ext. A-2), Memo
taking possession of clothes, blood and soil (Ext. A-3),
Ms. Khushi's medical certificate (Ext. A-4), Chik FIR (Ext.
A-5), carbon copy of case registered GD (Ext. A-6),
Postmortem reports of Shahzad and Rukhsana (Ext. A-7
and Ext. A-8), Panchayatnama (Ext. A-6), photo of
deceased Shahzad (Ext. A-10), Police Form No. 13 (Ext.
A-11), Police form No. 13 in respect of Shahzad (Ext. A-
12), sample seal (Ext. A-14), Panchayatnama Rukhsana
(Ext. A-14), photo of deceased Rukhsana (Ext. A-15),
police form no. 13 in respect of Rukhsana (Ext. A-16)
sample seal Rukhsana (Ext. A-17), Memo recovery of
FIR No. 246/16 (Ext. A-18), arrest and information
memo of accused Sartaj in FIR No. 248/16 (Ext. A-24
and Ext. A-25), charge sheet of FIR No. 248/16 (Ext. A-
21), site plan of FIR No. 248/16 (Ext. A-22), site plan of
FIR No. 249/16 (Ext. A-24), arrest and information
memo of accused in FIR No. 248/16 (Ext. A-23 and Ext.
A-24), charge sheet of FIR No. 249/16 (Exhibit A-25),
F.S.L. report (Ext. A-26) were presented.
7) After the prosecution evidence was over, the
statement of accused was recorded under Section 313
Cr.P.C., in which the accused described the alleged
incident to be false and the statements of witnesses
were called false. The accused refused to give
evidence in defence. It was also stated that Sakshi,
Raddu and his son had beaten the accused in the past,
and they had a grudge against him. It was Raddu and
his son who had committed the murder of Shahzad and
Rukhsana, locked the accused in the room along with
the dead bodies and bolted it from outside, and the
police came and got the room opened. It was further
stated by the accused that he had not committed the
said murders.
8) P.W.5 S.I. Shyam Singh, P.W.7 Constable
Rajesh Chauhan, P.W.11 S.I. L.S. Butola, P.W.12 S.I.
Dil Mohan Singh, P.W.13 S.I. Ritu Raj Singh, P.W.14
Inspector Pradeep Bisht, P.W.15 S.I. Manish Singh
Negi and P.W.16 S.I. Kuldeep Singh have adduced
their evidence and have been examined by the Court
as official witnesses.
9) The registration of FIR against the accused
has been proved by P.W.7 Constable Rajesh Chauhan.
Investigation of the case was conducted by P.W.13
S.I. Ritu Raj Singh and P.W.14 Inspector Pradeep
Bisht. As per the evidence given by P.W.9 Aslam and
P.W.10 Taufiq, they were living near the place of
incidence and were present at the spot along with
others when commotion broke out on 24.09.2016.
They had seen accused Sartaj holding a bloodstained
knife in his right hand, and they saw the body of
deceased Shahzad lying soaked in blood outside the
house, and body of deceased Rukhsana was lying at
the verandah of the house. She was lying soaked in
blood with injuries suffered from sharp weapon.
When the police reached the spot and opened the
door of Shahzad's house, they saw that the accused
Sartaj was standing with a knife soaked in blood, and
dead body of deceased Rukhsana was lying nearby.
The dead body of Rukshana had knife injuries and a
knife was recovered from the right hand of accused
Sartaj. P.W.10 Taufiq also proved this fact, that he
was resident of this village and after hearing the
commotion he rushed to the spot with his licensed
gun in a vehicle. When he reached there, he saw that
Shahzad had been murdered and his dead body was
lying on the road. The dead body was lying almost in
front of Shamsher's house and Sartaj was standing at
his door with a knife in his right hand which was
soaked in blood, his right hand was also stained with
blood. On seeing P.W.10, accused Sartaj went inside
the house and locked it from inside, and P.W.10 and
others bolted the house from outside. P.W.10
informed the police through Israr's phone, on which
the police reached the spot and arrested accused
Sartaj along with a knife from inside the room of the
house of Shahzad.
10) P.W.12 S.I. Dil Mohan Singh, P.W.14
Inspector Pradeep Bisht have also supported the
prosecution version that P.W.9 Aslam and P.W.10
Taufiq had reached the place of incident after hearing
the commotion and found the deceased Shahzad lying
outside his house. Rukhsana was seen dead soaked
in blood with injuries from a sharp weapon. Her body
was lying in verandah of the same house.
11) P.W.6 Dr. S.K. Dwivedi had deposed that
injuries found on the back side of the right thumb,
and on the front of right side of chest of P.W.2 Khushi
could have been caused by a sharp weapon, or a
sharp object. P.W.2 Khushi is the daughter of
deceased Rikhsana and Shahzad, who was also
assaulted by accused Sartaj, but was saved. P.W.8
Dr. Manoj Kumar Dwivedi, who conducted the
postmortem examination on the dead bodies, has also
expressed the opinion that on physical examination of
deceased Shahzad and Rukhsana the injuries were
found to be caused by sharp weapon, and the cause
of death was due to shock and haemorrhage as a
result of ante mortem injuries. The police had
recovered the knife used in the murder and the
clothes worn by the accused at the time of incident
recovered from the accused on the spot. The knife,
clothes of the accused, plain soil & bloodstained soil,
and bloodstained pieces of floor taken from the spot
were sent to the Forensic Science Laboratory,
Dehradun for testing. The investigation reports of
which were at Sl. Nos. 489 / 1 and 489 / 4. The
investigation reports confirmed the presence of
human blood on the clothes of the accused, on the
knife used in the commission of murder, and on blood
soaked soil & pieces of floor. The above said reports
were found to be admissible in evidence under
Section 293 of Cr.P.C., and as per these reports there
were marks on the floor and on the knife used in the
murder. It was confirmed that there was human
blood on the bloodstained soil and pieces of floor, and
hence this led to proving the guilt of accused Sartaj in
the commission of crime of murder.
12) Another witness to this incident was P.W.3
Ruhi, daughter of Rukhsana and Shahzad. P.W.3 Ruhi
was an eyewitness, aged 13 years. She confirmed
the fact that accused Sartaj used to live in their
house. Accused Sartaj had stolen Rs.50,000/- from
his father. Her father told Sartaj to return
Rs.25,000/- and keep the remaining Rs.25,000/-.
This happened in the evening of 24.09.2016, but
accused Sartaj did not say anything at that time.
Everybody had dinner, but her mom and dad did not
eat due to tension and neither did the accused. At
01:00 A.M., in the night, the door of the room in
which P.W.2 Khushi, P.W.3 Ruhi and her brothers
were sleeping along with their parents was knocked
by accused Sartaj. P.W.3 Ruhi's father opened the
door. The accused Sartaj stabbed her father several
times with the knife in the stomach. When her
mother Rukhsana came from behind and tried to free
Shahzad from the accused Sartaj, she was also
attacked with knife in the stomach and hands by the
accused Sartaj. P.W.2 Khushi, another eyewitness,
aged 7 years, corroborated the evidence given by
P.W.3 Ruhi. P.W. 2 Khushi was also attacked with the
knife on her hand and chest by accused Sartaj. P.W.1
Raddu came to the spot and saved them from
accused Sartaj and took them to P.W.4 Arif's house.
P.W.2 Khushi was a minor, aged 07 years, and her
evidence was recorded before the court by the
Presiding Officer. P.W.2's evidence was recorded only
after examining her competency to give evidence, and
finally, she was found to be competent witness.
13) P.W.1 Raddu is another eyewitness of the
incident, and he clearly stated in his evidence that he
lives in front of the house of the deceased Shahzad.
On 24.09.2016, due to commotion in the night, he
reached on the spot and saw the accused with
Shahzad. Accused was stabbing Shahzad with a knife
and when Rukhsana came to save deceased Shahzad,
accused Sartaj also stabbed Rukhsana with the knife,
and also stabbed P.W.2 Khushi with the knife. P.W.1
Raddu saved Khushi from accused Sartaj and took the
children to Arif's house in the lane behind the place of
incident.
14) Keeping in view the evidence given by
P.W.1 Raddu, P.W.2 Khushi, and that of P.W.3 Ruhi
which were corroborative in nature and, moreover,
the evidence given by P.W.1 Raddu which has been
confirmed by P.W.4 Arif, who stated that in the night
of 24.09.2016, P.W.1 Raddu came from the house of
deceased Shahzad with children of the deceased and
told him that accused Sartaj had stabbed his sister-in-
law to death and is stabbing Shahzad. P.W.1 also told
P.W.4 that accused Sartaj also attacked P.W.2
Khushi, but he saved Khushi. The evidence given by
P.W.4 has also been corroborated by the evidence
given by P.W.1 Raddu. The evidence given by P.W.1
Raddu has been corroborated and confirmed by P.W.4
Arif, who stated that in the night of 24.09.2016,
P.W.1 had come to his house with the children of
Shahzad and told him that Sartaj had committed
murder of Shahzad and Rukhsana, and also injured
P.W.2 Khushi. P.W.1 Raddu had rescued the children
from the accused and brought them in the house of
P.W.4.
15) The lower court held that as per the
evidence given by P.W.1, P.W.2, P.W.3 and P.W.4,
and the evidence adduced by P.W.7 Dr. Manoj Kumar
Dwivedi with respect to injuries inflicted on the person
of P.W.2 Khushi, these evidence were sufficient to
hold that accused Sartaj had committed the crime,
and P.W.1 Raddu was an independent witness, and
had no reason to falsely implicate the accused, and no
evidence has been led by the defence to show that
accused had been falsely implicated in the
commission of crime.
16) As per the evidence given by P.W.12 S.I.
Dil Mohan Singh, P.W.14 Inspector Pradeep Bisht,
who stated that after hearing the commotion at the
place of incident, P.W.9 Aslam and P.W.10 Taufiq
reached the spot and saw the accused standing at the
door with a bloodstained knife in his right hand, and
the body of Rukhsana was seen lying soaked with
blood in the verandah of the house. The investigation
reports, which were at Sl. Nos. 489 / 1 and 489 / 4 on
record, confirmed the presence of human blood on
the bloodstained clothes of the accused & the knife,
bloodstained soil & pieces of floor.
17) Accused Sartaj in his statement recorded
under Section 313 Cr.P.C. only stated that he had
been falsely implicated in this case. He further stated
that P.W.1 Raddu and his son had beaten him in the
past and P.W.1 had a grudge against him. Shahzad
and Rukhsana were murdered by Raddu and his son,
who locked the accused with the dead bodies in the
room, and locked the room from outside. He had not
committed any murder, and had been falsely
implicated in the crime. However, no evidence in
defence has been adduced.
18) The court below also took note of the fact
that bloodstained soil and bloodstained pieces of floor
and the clothes worn by the accused at the time of
incident were taken into possession and panchnama
proceedings along with photo corpse, specimen seal,
corpse specimen seal, formal form were prepared.
19) These facts along with the testimony given
by prosecution witnesses P.W.4 Arif, P.W.5 S.I.
Shyam Singh, P.W.9 Aslam, P.W.10 Taufiq, P.W.11
S.I. L.S. Butola and P.W.14 Inspector Pradeep Bisht
were found reliable, and were found proved beyond
reasonable doubt against the accused Sartaj.
20) The court below held that they were reliable
witnesses and had proved the fact to the best of their
ability. The eyewitness account given by P.W.1
Raddu, P.W.2 Khushi, P.W.3 Ruhi and P.W.4 Arif,
being eyewitnesses, had confirmed the chain of
events coupled with the medical evidence given by
P.W.6 Dr. S.K. Dwivedi and P.W.8 Dr. Manoj Kumar
Dwivedi, which were sufficient to return a finding that
the murder of Shahzad and Rukhsana had been
committed by accused Sartaj, who had also made
murderous attack on P.W.2 Khushi.
21) The trial court further proceeded to
examine the cause of incident in the case. As per the
evidence given by P.W.2 Khushi and P.W.3 Ruhi, on
the evening of the day of incident, Shahzad had asked
accused Sartaj to return Rs.25,000/- out of
Rs.50,000/-. There was an altercation between them
and due to this tension parents of P.W.2 and P.W.3
did not eat dinner, and even accused Sartaj did not
eat dinner. Deceased Shahzad had stated that if an
amount of Rs.50,000/- was not given back to him by
accused Sartj, he will go to the police and make a
complaint that Rs.50,000/- had been stolen by
accused Sartaj. At this stage, accused Sartaj had
threatened the deceased Shahzad that if any action
was taken against him, Shahzad would be punished
and the outcome will not be good. The above reason
to kill deceased Shahzad and deceased Rukhsana was
also made out. At the same time, the defence did not
show anything on record whether anyone else had
any motive for committing the murder of Shahzad
and Rukhsana.
22) The defence taken by the accused Sartaj in
his statement under Section 313 Cr.P.C. was that the
murder had been committed by P.W.1 Raddu and his
son. Since this fact was very well known to the
accused, the burden of proving the same was also on
the accused Sartaj that it was P.W.1 Raddu, who had
a grudge against him, and accused had been falsely
implicated in the crime. Even if there was any enmity
between the accused and P.W.1 Raddu for sometime,
then only this cannot be made a ground to doubt the
evidence given by eyewitness Raddu, and his
evidence cannot be rejected. P.W.8 Dr. Manoj Kumar
Dwivedi, who had conducted postmortem on the dead
body of deceased Shahzad stated that there were
total 16 injuries caused by sharp weapon on his body.
There was a cut wound of 14 x 2.5 cm on the upper
part of neck, and all the arteries and ends of the
throat, breathing pipe and all structures of the
deceased Shahzad's neck were cut. As per the
postmortem report of deceased Rukhsana it was
revealed that she had received 16 injuries on her
body with sharp weapon and three injuries on the
throat and injury No. 1 was a cut wound on the upper
part of the throat measuring 13 x 1.5 cm, and trachea
of the throat has been damaged. The end and the
artery were cut. Injury No. 14 reveals a deep wound
on the stomach. It was also mentioned that intestine
and surface of the deceased were coming out. It was
held by the court below that accused Sartaj had
intention to kill the deceased Shahzad and deceased
Rukhsana by causing such deep wounds on their
person with a sharp weapon on their necks. The
recovery of knife used in the murder from accused
Sartaj by the prosecution on 24.09.2016, and the
recovery has been proved by P.W.5, P.W.10, P.W.12
and P.W.14 from the accused Sartaj on 24.09.2016.
With regard to the cloth worn by the accused Sartaj,
the same were seized and panchnama proceedings
were conducted along with photo corpse, specimen
stamp, corpse specimen stamp, formal form, were
prepared. It is noteworthy that on these facts, the
evidence of prosecution witnesses P.W.1 Arif, P.W.5
S.I. Shyam Singh, P.W.9 Aslam, P.W.10 Taufiq,
P.W.11 S.I. L.S. Butola, P.W.14 Inspector Pradeep
Bisht have been found reliable and they have proved
the above facts to the best of their ability.
23) Having heard learned counsel for the
parties, and after going through the evidence brought
on record, the trial court came to the conclusion that
it was only accused Sartaj and no one else, who had
committed the crime. The Trial Court, accordingly,
convicted accused Sartaj for the offences punishable
under Section 302, 307 IPC, and one punishable
under Section 4/25 Arms Act. Convict Sartaj was
sentenced with death penalty for the offence
punishable under Section 302 IPC. He was further
sentenced to imprisonment for life in respect of
offence punishable under Section 307 IPC, and six
months rigorous imprisonment for the offence
punishable under Section 4/25 Arms Act. All the
sentences were directed to run concurrently except
the death penalty.
24) After hearing learned counsel for the
accused Sartaj, as well as learned Deputy Advocate
General for the State, at length, no ground is made
out to interfere with the findings recorded by the trial
court with respect to the fact that it was accused
Sartaj who had committed murder of Shahzad and
Rukhsana with a sharp weapon, a knife, and inflicted
injuries on the person of P.W.2 Khushi, who was
present on the spot, with the same knife.
25) Now the question which arises for
consideration of this Court is whether death penalty
should be imposed or imprisonment for life is an
adequate sentence. This question has triggered a
debate throughout the globe all these years. Human
Right Activists have been for imprisonment for life
and abolition of death penalty, whereas the
protagonists of those who have lost their sole bread
earners have been propagating and advocating for
death penalty. These are two swings of the pendulum
which are to be measured by the courts while
imposing sentence. We have tried to encapsulate the
decisions which have been rendered by the Supreme
Court of India after independence in this regard.
26) In 1973, the Supreme Court in the case of
Jagmohan Singh Vs State of U.P. (1973) 1 SCC 20,
examined the question whether death sentence awarded
by a court under Section 302 of Indian Penal Code, 1880
was violative of sub-clause (1) of Article 19 of the
Constitution. As per Sub-Section (5) of Section 367 of
Criminal Procedure Code, there was a discretion with the
court either to award capital sentence or life
imprisonment. The Supreme Court held that Article 19
of the Constitution does not directly deal with the
freedom to live. It is not included in the seven freedoms
mentioned in that Article. As far as India is concerned,
capital punishment cannot be described as unusual
because that kind of punishment has been with us from
ancient times right up to the present day though the
number of offences for which it can be imposed has
continuously changed. The framers of our Constitution
were well aware of the existence of capital punishment
as a permissible punishment under the law. The other
Articles in the Constitution, viz., Section 72(1)(c), 72(3),
21 and 134 and Sections 401 and 402 of the Code of
Criminal Procedure and the Entries 1 and 2 in List III of
the Seventh Schedule, all indicate that capital sentence
has not been regarded per se as unreasonable or not in
the public interest.
27) After the amendment by Act 26 of 1955, it
was left to the judicial discretion of the court whether
the death sentence or the lesser sentence should be
imposed. Article 14 cannot be invoked in matters of
judicial discretion. If the law has given to the Judges
wide discretion in matter of sentence to be exercised by
him after balancing all the aggravating and mitigating
circumstances of the crime, it will be impossible to say
that there would be at all any discrimination, since facts
and circumstances of one case can hardly be the same
as the facts and circumstances of another. In a criminal
trial, the accused who is charged for murder knows that
he is liable to sentence of death in the committing court
itself. The accused has a right to examine himself as a
witness, and thereafter, give evidence on the material
facts. He and his counsel are at liberty to address the
court not merely on the question of guilt but also on the
question of sentence, and so on. After the prosecution
and the accused have had their full say, the court is
principally concerned with the facts and circumstances,
whether aggravating or mitigating, which are connected
with the particular crime under inquiry. In this
backdrop, the procedure established by law cannot be
said to be unconstitutional under Article 21.
28) The Supreme Court also examined several
studies made by Western Scholars to show the
ineffectiveness of capital punishment either as a
deterrent or as an appropriate retribution. The Supreme
Court Judges in the above study observed that social
conditions are different and also the general intellectual
level. The only authoritative study in India is that of the
Law Commission of India published in the year 1967.
One the basis of its conclusions it is difficult to hold that
capital punishment as such is unreasonable or not
required in public interest. The policy of the law in
giving a very wide discretion in the matter of
punishment to the Judge has its origin and impossibility
of laying down standards.
29) The impossibility of laying down standards is
at the very core of the Criminal Law as administered in
India which invests the Judges with a very wide
discretion in the matter of fixing the degree of
punishment. This discretion in the matter of sentence is
liable to be corrected by superior courts. Laying down of
standards to the limited extent possible as was done in
the Mode Judicial Code would not serve the purpose.
The exercise of judicial discretion of well-recognised
principles is, in the final analysis, the safest possible
safeguards for the accused. The Code of Criminal
Procedure lays down a detailed procedure and this
procedure is limited to the finding of the guilt. The
Supreme Court finally held that it was necessary to
emphasize that the court was principally concerned with
the facts and circumstances, whether aggravating or
mitigating, which are connected with the particular crime
under inquiry.
30) In paragraph 29 of the Jagmohan's case
(supra), the Supreme Court observed as under :
"However, it is necessary to emphasize that the
court is principally concerned with the facts and
circumstances, whether aggravating or mitigating,
which are connected with the particular crime under
inquiry. All such facts and circumstances are capable of
being proved in accordance with the provisions of the
Indian Evidence Act in a trial regulated by the Cr.P.C.
The trial does not come to an end until all the relevant
facts are proved and the counsel on both sides have an
opportunity to address the court. The only thing that
remains is for the judge to decide on the guilt and
punishment and that is what Sections 306(2) and
309(2), Cr.P.C. purport to provide for. These
provisions are part of the procedure established by law
and, unless it is shown that they are invalid for any
other reasons, they must be regarded as valid. No
reasons are offered to show that they are
constitutionally invalid, and, hence, the death sentence
imposed after trial in accordance with the procedure
established by law is not unconstitutional under Article
21."
31) Thereafter, in Bachan Singh Vs State of
Punjab (1980) 2 SCC 684, a larger bench of Supreme
Court consisting of five judges has affirmed the view
taken in Jagmohan's case (supra), and has affirmed the
proposition that the provisions of death penalty for an
offence punishable under Section 302 IPC, and the
sentencing procedure laid down in sub-section (3) of
Section 354 of Criminal procedure Code, requires that
special reasons have to be recorded for awarding a
death penalty, and these provisions are not violative of
Article 14, 19 and 21.
32) While approving the judgment in Jagmohan's
case (supra), the Supreme Court also referred to the
new provision in sub-section (3) of Section 354 of the
Criminal Procedure Code, 1973, that award of death
sentence was an exception to be made for "exceptional
reasons" founded on grave circumstances of the
particular case relating to the crime and the criminal.
33) In Paragraphs 160, 161 & 162 of the Supreme
Court judgment rendered in Bachan Singh's case
(supra), it has been observed as under :
"160. In the light of the above conspectus, we
will now consider the effect of the aforesaid
legislative changes on the authority and efficacy of
the propositions laid down by this Court in
Jagmohan's case. These propositions may be
summed up as under:
(i) The general legislative policy that underlies
the structure of our criminal law, principally
contained in the Indian Penal Code and the Criminal
Procedure Code, is to define an offence with
sufficient clarity and to prescribe only the maximum
punishment therefor, and to allow a very wide
discretion to the Judge in the matter of fixing the
degree of punishment.
With the solitary exception of Section 303, the
same policy permeates Section 302 and some other
sections of the Penal Code, where the maximum
punishment is the death penalty.
(ii)(a) No exhaustive enumeration of
aggravating or mitigating circumstances which
should be considered when sentencing an offender,
is possible. "The infinite variety of cases and facets
to each case would make general standards either
meaningless 'boiler plate' or a statement of the
obvious that no Jury (Judge) would need." (Referred
to McGoutha v. California, (1971) 402 US 183.
(b) The impossibility of laying down standards
is at the very core of the criminal law as
administered in India which invests the Judges with
a very wide discretion in the matter of fixing the
degree of punishment.
(iii) The view taken by the plurality in Furman
v. Georgia, 408 US 238 (1972), decided by the
Supreme Court of the United States, to the effect,
that a law which gives uncontrolled and un-guided
discretion to the Jury (or the Judge) to choose
arbitrarily between a sentence of death and
imprisonment for a capital offence, violates the
Eighth Amendment, is not applicable in India. We do
not have in out Constitution any provision like the
Eighth Amendment, nor are we at liberty to apply
the test of reasonableness with the freedom with
which the Judges of the Supreme Court of America
are accustomed to apply "the due process" clause.
There are grave doubts about the expediency of
transplanting western experience in our country.
Social conditions are different and so also the
general intellectual level. Arguments which would be
valid in respect of one area of the world may not
hold good in respect of another area.
(iv)(a) This discretion in the matter of sentence
is to be exercised by the Judge judicially, after
balancing all the aggravating and mitigating
circumstances of the crime.
(b) The discretion is liable to be corrected by
superior courts. The exercise of judicial discretion on
well-recognised principles is, in the final analysis,
the safest possible safeguard for the accused.
In view of the above, it will be impossible to
say that there would be at all any discrimination,
since crime as crime may appear to be superficially
the same but the facts and circumstances of a crime
are widely different. Thus considered, the provision
in Section 302, Penal Code is not violative of Article
14 of the Constitution on the ground that it confers
on the Judges an unguided and uncontrolled
discretion in the matter of awarding capital
punishment or imprisonment for life.
(v)(a) Relevant facto and circumstances
impinging on the nature and circumstances of the
crime can be brought before the Court at the pre-
conviction stage, notwithstanding the fact that no
formal procedure for producing evidence regarding
such facts and circumstances had been specifically
provided. Where counsel addresses the Court with
regard to the character and standing of the accused,
they are duly considered by the Court unless there is
something in the evidence itself which belies him or
the Public Prosecutor challenges the facts.
(b) It is to be emphasised that in exercising its
discretion to choose either of the two alternative
sentences provided in Section 302, Penal Code, "the
Court is principally concerned with the facts and
circumstances whether aggravating or mitigating,
which are connected with the particular crime under
inquiry. All such facts and circumstances are capable
of being proved in accordance With the provisions of
the Indian Evidence Act in a trial regulated by the
Cr.P.C. The trial does not come to an end until all
the relevant facts are proved and the counsel on
both sides have an opportunity to address the Court.
The only thing that remains is for the Judge to
decide on the guilt and punishment and that is what
Sections 306(2) and 309(2), Cr.P.C. purport to
provide for. These provisions are part of the
procedure established by law and unless it is shown
that they are invalid for any other reasons they must
be regarded as valid. No reasons are offered to show
that they are constitutionally invalid and hence the
death sentence imposed after trial in accordance
with the procedure established by law is not tin-
constitutional under Article 21. (emphasis added).
161. A study of the propositions set out above,
will show that, in substance, the authority of none of
them has been affected by the legislative changes
since the decision in Jagmohan's case. Of course,
two of them require to be adjusted and attuned to
the shift in the legislative policy. The first of those
propositions is No. (iv)(a) which postulates, that
according to the then extant CrPC both the
alternative sentences provided in Section 302, Penal
Code are normal sentences, and the court can,
therefore, after weighing the aggravating and
mitigating circumstances of the particular case, in its
discretion, impose either of those sentences. This
postulate has now been modified by Section 354(3)
which mandates the Court convicting a person for an
offence punishable with death or, in the alternative
with imprisonment for life or imprisonment for a
term of years, not to impose the sentence of death
on that person unless there are "special reasons" -
to be recorded - for such sentence. The expression
"special reasons" in the context of this provision,
obviously means "exceptional reasons" founded on
the exceptionally grave circumstances of the
particular case relating to the crime as well as the
criminal. Thus, the legislative policy now writ large
and clear on the face of Section 354(3) is that on
conviction for murder and other capital offences
punishable in the alternative with death under the
Penal Code, the extreme penalty should be imposed
only in extreme cases.
162. In this view we are in accord with the
dictum of this Court in Balwant Singh v. State of
Punjab , 1976 SCC (Cri) 43, wherein the
interpretation of Section 354(3) first came up for
consideration. After surveying the legislative
background, one of us (Untwalia, J.) speaking for
the court, summed up the scope and implications of
Section 354(3), thus:
Under this provision the Court is required
to state the reasons for the sentence awarded
and in the case of sentence of death, special
reasons are required to be stated. It would
thus be noticed that awarding of the sentence
other than the sentence of death is the general
rule now and only special reasons, that is to
say, special facts and circumstances in a given
case, will warrant the passing of the death
sentence. It is unnecessary nor is it possible to
make a catalogue of the special reasons which
may justify the passing of the death sentence
in a case.
While applying proposition (iv)(a), therefore,
the Court has to bear in mind this fundamental
principle of policy embodied in Section 354(3)."
34) The Supreme Court further observed that
there could be no rigid standards which can be laid down
in the form of guidelines with respect to area of
imposition of death penalty. The purpose of "laying
down standards" meant that 'murder' should be
categorised beforehand according to the degrees of its
culpability and all aggravating and mitigating
circumstances should be exhaustively and rigidly
enumerated so as to exclude all free play of discretion.
Such standardisation was not possible. Firstly, the
degree of culpability cannot be measured in each case;
secondly, criminal cases cannot be categorized where
there are infinite, unpredictable and unforeseeable
variations; thirdly, on such categorisation the sentencing
process will cease to be judicial; and, fourthly, such
standardization or sentencing discretion is a policy
matter belonging to legislation beyond the court's
function. In this backdrop, no rigid standard in this area
can be laid down. Some broad guidelines consistent
with the policy indicated by the legislature in Section
354(3) can be taken. The Court finally has to pay due
regard both to the crime and the criminal. What is
relative weight to be given to the aggravating and
mitigating factors, depends on the facts and
circumstances of a particular case. 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. Hence, it is not desirable
to consider the circumstances of the crime and the
circumstances of the criminal in two separate watertight
compartments. The Judges should never be
bloodthirsty. Hence, courts aided by the broad
illustrative guidelines will discharge the onerous function
with evermore scrupulous care and humane concern. As
per the legislative policy guidelines in sub-section (3) of
Section 354, i.e., for the person 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.
35) The Supreme Court, thereafter, in Machhi
Singh and others Vs State of Punjab, (1983) 3 SCC
470, followed the guidelines laid down by it in Bachan
Singh's case (supra), and examined the case of a death
sentence imposed on Machhi Singh, Kashmir Singh,
Jagir Singh by the Sessions Court as confirmed by the
High Court. They confirmed the death sentence awarded
to the above said three accused. While, affirming the
death sentence, in paragraph 32 of said judgment, the
Supreme Court observed as under :
"32. The reasons why the community as a whole
does not endorse the humanistic approach reflected in
'death sentence-in-no-case' doctrine are not far to
seek. In the first place, the very humanistic edifice is
constructed on the foundation of 'reverence for life'
principle. When a member of the community violates
this very principle by killing another member, the
society may not feel itself bound by the shackles of this
doctrine. Secondly, it has to be realized that every
member of the community is able to live with safety
without his or her own life being endangered because of
the protective arm of the community and on account of
the rule of law enforced by it. The every existence of
the rule of law and the fear of being brought to book
operates as a deterrent of those who have no scruples
in killing others if it suits their ends. Every member of
the community owes a debt to the community for this
protection. When ingratitude is shown instead of
gratitude by 'killing' a member of the community which
protects the murderer himself from being killed, or
when the community feels that for the sake of self-
preservation the killer has to be killed, the community
may well withdraw the protection by sanctioning the
death penalty. But the community will not do so in
every case. It may do so 'in rarest of rare cases' when
its collective conscience is so shocked that it will expect
the holders of the judicial power centre to inflict death
penalty irrespective of their personal opinion as regards
desirability or otherwise of retaining death penalty. The
community may entertain such a sentiment when the
crime is viewed from the platform of the motive for, or
the manner of commission of the crime, or the anti-
social or abhorrent nature of the crime."
36) All the three accused had murdered two
innocent and helpless women named Ghamo Bai and
Rajo Bai in a helpless and defenceless state in their own
house. A couple namely Bishan Singh and his wife Paro
Bai were killed in similar circumstances. Sahib Singh,
Mukhtiar Singh, Manto Bai, Palo Bai and Jita Singh were
killed by five men including Machhi Singh and Jagir
Singh. They put to death a young newly married couple
and rendered a young woman a widow. The appeal filed
by above accused was dismissed by the Supreme Court
following the guidelines indicated in Bachan Singh's case
(supra).
37) Recently, the Supreme court in the case of
Digambar Vs The State of Maharashta, 2023 2 CriCC
647, had an occasion to examine whether death penalty
could be awarded in case of an honour killing. In that
case, the Supreme Court observed that the appellant
Digambar was a young boy of 25 years at the time of
incident and had not acted in a brutal manner as there
was one single injury inflicted on both deceased. As far
as offence punishable under Section 302 is concerned,
the Supreme Court held that the prosecution had
established that the deceased and accused persons left
the house together and soon thereafter the death of
deceased person had occurred. The accused were held
guilty of the offence punishable under Section 302 IPC.
However, keeping in view the fact that appellant
Digambar was 25 years of age, it was not considered to
be a 'rarest of rare' case. He was held to be not a
person with criminal mindset and criminal records, and
in this backdrop, the sentence of capital punishment was
committed to life imprisonment. The Supreme Court
had also taken into account the report of the Probation
Officer. As per said report, the Sarpanch and people of
the village had stated that inter-caste marriage of
deceased friend Govind and deceased sister Pooja was
putting social pressure and being angry about it, the
incident took place in sudden provocation by Digambar.
However, overall behaviour of Digamber was found to be
good.
38) The Supreme Court also referred to the case
of Gandi Doddabasappa alias Gandhi Basavaraj Vs
State of Karnataka, (2017) 5 SCC 415, wherein the
accused had committed murder of his daughter, who
was in the advanced stage of pregnancy. The Supreme
Court had upheld the conviction of the accused in
respect of offence punishable under Section 302 IPC, but
commuted the sentence from capital punishment to
imprisonment for life.
39) Similarly, in the case of Prakash Dhawal
Khairnar (Patil) Vs State of Maharashtra, (2002) 2 SCC
35, the appellant was a Senior Scientific Assistant. He
wiped out his brother's entire family. The Supreme
Court found that this was done by him on account of
frustration as his brother was not partitioning the alleged
joint property. The Supreme Court held that the crime
was heinous and brutal, but the same could not be
considered to be 'rarest of rare' case. It is, however,
held that it was difficult to hold that the accused was a
menace to the society, and that there was no reason to
believe that he could not be reformed or rehabilitated.
40) Also, Mohinder Singh Vs State of Punjab,
(2013) 3 SCC 294, was a case where the accused had
committed murder of his wife and daughter, and the
Supreme Court had held that it could not be considered
to be 'rarest of rare' case to inflict the capital
punishment.
41) In a recent case of Sundar @ Sundarrajan Vs
State by Inspector of Police, 2023 SCC OnLine 310, the
Supreme Court was examining the mitigating
circumstances and the possibility of reformation and
rehabilitation before imposing the death penalty, which
had been highlighted in multiple judgments of the
Supreme Court. The Supreme Court in the appeal filed
by Sundar @ Sundarrajan has also observed that no
such enquiry was conducted with respect to the
possibility of reformation and only the grievous nature of
crime was made basis to award death penalty. In that
case, the appellant was 24 years old, and he had been in
prison for 13 years. He had no prior antecedents and
the jail authorities stated that he had not been involved
in any other case. Keeping in view the above facts, the
Supreme Court held that even though the crime
committed by the appellant is unquestionably grave,
however, it was not appropriate to affirm the death
sentence that was awarded to him. The death sentence
has to be imposed taking it to be a 'rarest of rare' case,
where there is not possibility of reformation in a
criminal. The appellant had kidnapped and murdered
the victim, who was a young child of 07 years of age.
However, since the appellant does not have a
background of being a criminal, and his age was 24
years, and there was scope for reformation, the death
sentence was commuted to 20 years without reprieve or
remission.
42) Supreme Court in the case of B.A. Umesh Vs
Union of India and others, Criminal Appeal No. 1892 of
2022 (arising out of SLP (Crl.) No. 890 of 2022,
decided on 04.11.2022, has also examined the issue
whether delay in execution of death sentence could be a
sufficient ground for substituting death sentence by
imprisonment for life.
In the above matter, the Supreme Court was
examining the case where the execution of death
sentence was due to the delay which took place in
execution of the death sentence due to pendency of
mercy petition and reference was made to a judgment of
Ajay Kumar Pal Vs Union of India and another, 2015
(2) SCC 478. In that case there was a delay of 03 years
and 10 months, which was found to be inordinate and
the delay was not attributed to the accused / petitioner
but the delay was found on account of functionaries and
authorities in question.
43) In paragraph 14 of the above said judgment,
the Supreme Court observed as under :
"Paras 44 and 48 of the decisions of this Court in
Shatrughan Chauhan and another Vs Union of India
and others, (2014) 3 SCC 1, which were quoted in Ajay
Kumar Pal (supra), had laid down that undue long
delay in execution of death sentence would entitle the
condemned prisoner to pray for commuting the death
sentence to that of life imprisonment. The individual
cases were thereafter dealt with in Shatrughan
Chauhan (supra) and paragraph 105 onwards of said
decision show that in cases where there was a delay of
12 years (para 118), 9½ years (para 137), 9½ years
(para 147), 7 years and 8 months (para 161), 5 years
and 8 months (para 175) and 7 years and 5 months
(para 209), the benefit of commutation was extended
by this Court."
44) In the case before the Supreme Court the
mercy petition was received by the Central Government
on 03.03.2011, and it was disposed of on 15.05.2013.
In between, the Ministry of Home Affairs, Government of
India, forwarded the mercy petition to the Principal
Secretary, Home Department, Karnataka so that the
Governor, Karnataka could consider the mercy petition.
Thereafter, in the meantime, on 09.03.2011 in Writ
Petition No. 52 of 2011, preferred by the accused-
appellant, Supreme Court granted stay of execution of
death sentence. Before the Central Government
authorities, the State Cabinet on 07.05.2012, decided to
approve the note prepared by the Home Department
recommending rejection of mercy petition. The
Governor also rejected the mercy petition on
06.06.2012, and subsequently, the matter was referred
to the Central Government on 30.08.2012, and finally,
the Hon'ble President after considering the mercy
petition, rejected the mercy petition on 12.05.2013.
Hence, a period of 02 years and 03 months was taken to
dispose of the mercy petition.
45) In A.G. Perarivalan Vs State through
Superintendent of Police and another, 2022 SCC Online
SC 635, a bench of three Judges of Supreme Court had
commuted the sentence of death to life in a petition filed
under Article 161 of the Constitution keeping in view the
fact that the petition remained pending for 2½ years
with the Hon'ble Governor, despite recommendation of
the State Cabinet for remission of the sentence.
46) In the same judgment, the Supreme Court
examined the case of solitary confinement of a convict
under Section 29 of the Prisons Act, 1894. The law laid
down by the Supreme Court in Sunil Batra Vs Delhi
Administration and others, (1978) 4 SCC 494, and Ajay
Kumar Pal's case (supra), where the convict had been
kept in solitary confinement after awarding the death
sentence till his mercy petition was disposed of was
declared as a long period of incarceration. In the case
before the Supreme Court the solitary confinement was
w.e.f. 2006 to 2016 for a period of 10 years, and hence
it was held that incarceration of 10 years of solitary
confinement would have ill effects on the well-being of
the convict and, in this backdrop, the appellant was
entitled to have the death sentence imposed upon him to
be commuted to death sentence to imprisonment for life,
and finally the Supreme Court held that mercy petition
must be filed within 07 days of the disposal of the appeal
or dismissal of the Special Leave Petition, and the
convict is entitled to file a review petition within 30 days.
47) Applying the ratio of all the judgments as
referred hereinabove, this Court is of the opinion that
the proper exercise of the discretion in respect of the
punishment, as in all cases of exercise of discretion, be
exercised judicially on a proper consideration of all the
relevant facts and circumstances of the case keeping in
view the broad objective of the sentence. A sentence of
imprisonment for life can only be substituted if the facts
justify the non-imposition of the extreme penalty of the
law. The Court is required to take notice of the manner,
the nature of allegation and the magnitude of crime.
Quantum of Punishment
48) In the facts of the present case, the convict
Sartaj was known to deceased Shahzad and
Rukhsana, and there was a dispute amongst them
with respect to Rs.50,000/-, which convict Sartaj had
taken from deceased Shahzad, and when the money
was not being returned, deceased Shahzad told the
convict that he will make a complaint with the police
that convict had stolen Rs.50,000/-. Keeping in view
the above fact, convict Sartaj got infuriated and
proceeded to commit murder of Shahzad, and when
Rukhsana tried to save her husband, she was also
murdered, and P.W.2 Khushi was also got injured in
the melee. In the facts of the present case, the cause
to commit murder was instant instigation, and it is not
a case that convict Sartaj was a habitual criminal, and
with respect to the punishment of death penalty, the
above facts have to be taken into account.
49) In the facts of present case, since the
convict-appellant Sartaj is not a habitual criminal and
he had committed the murder on an instant
instigation when deceased Shahzad had asked him to
return Rs.50,000/- that convict borrowed from
deceased Shahzad, and forced the convict to return
Rs.25,000/- within a day, the convict got infuriated
and this provoked him to commit the murder, and
when Rukhsana came to save her husband, she was
also attacked and she too lost her life. It has come
on record that Sartaj bolted himself inside the room,
and he was arrested on the spot in the presence of
many other witnesses. It was not a case that Sartaj
had plotted the murder that he will not be caught
immediately, or had tried to flee away from the place
of incident.
50) In view of the above, Criminal Reference
No. 04 of 2018 in respect of convict-appellant Sartaj
made by the trial court so far as the confirmation of
sentence of death to the convict is concerned, is
answered in negative.
51) Instead of confirming the sentence of death
awarded by the trial court, (in exercise of powers
conferred under Section 368(a) Cr.P.C.) the sentence
of death is commuted to imprisonment for life against
convict Sartaj.
52) The conviction recorded by the trial court in
S.T. No. 14 of 2017, under Section 302 and 307 IPC
against convict-appellant Sartaj is affirmed. He is
sentenced to undergo imprisonment for life with the
stipulation that he shall not be entitled to premature
release or remission before undergoing actual
imprisonment for a period of 20 years.
53) The conviction and sentence awarded by
the trial court in S.T. No. 15 of 2017 against accused-
appellant Sartaj in respect of offence punishable
under Section 4/25 Arms Act, is also affirmed.
54) The other terms of sentences awarded to
the convict Sartaj including fine amount and default
stipulations also stand confirmed. All the substantive
sentences awarded to the convict shall run
concurrently.
55) The Criminal Appeals filed by the accused-
appellant sartaj against the conviction and sentences
awarded by the trial court in S.T. No. 14 of 2017 in
respect of offence punishable under Sections 302, 307
of IPC, and in S.T. No. 15 of 2017 in respect of
offence punishable under Section 4/25 of Arms Act
both stand dismissed.
56) The Criminal Appeal filed by accused-
appellant Sartaj in respect of offence punishable
under Section 302 and 307 IPC, having been
dismissed, his sentence is modified as directed in
Paras 52 and 54 above.
57) Let a copy of this Judgment be sent to the
trial court with reference to its letter dated
01.12.2018, in S.T. No. 14 of 2017 and S.T. No. 15 of
2017 respectively. A copy of this judgment be also
sent to the Superintendents of Jail concerned where
the convict Sartaj is presently serving out his
sentences, for ensuring compliance of this order.
Lower court record be sent back.
______________
RITU BAHRI, C.J.
_________________
ALOK KUMAR VERMA, J.
Dt: 16TH MAY, 2024
Negi
