Additional Sessions Judge, Guntur, Referring Officer V. Gantela

Additional Sessions Judge, Guntur, Referring Officer V. Gantela

DATE : 02-11-1995 1996-(102)-CRLJ -0703 -AP

PENAL LAW MURDER RAREST OF RARE CASE

JUDGE(S) :Bhaskara Rao Syed Shah Mohammed Quadri  ANDHRA PRADESH HIGH COURT

JUDGMENT
SYED SHAH MOHAMMED QUADRI, J. :- On the fateful morning of March 8, 1993 at about 4.45 A.M. petrol was sprinkled in Super Express APSRTC Bus bearing No. AP. 9z-4236, which was proceeding from Hyderabad to Chilakaluripet, near Kondrupadu village, which resulted in the death of 23 persons besides causing burn injuries to the other passengers and burning of the bus completely. The appellants were tried for various offences under sections 302, 392, 307, 341, 448 and 120-B of the Indian Penal Code on as many as 31 charges by the learned III Addl. Sessions Judge, Guntur, and were convicted on charges 1 to 23 and 31, among others, and sentenced to death for the offence under Sections 302 and 120-B I.P.C. The conviction and sentences on other charges for the other offences need not be referred to here having regard to the contentions urged before us. The learned III Addl. Sessions Judge, Guntur, found the appellants guilty of the charges and awarded the punishments, referred to above, referred the case to this Court for confirmation of the death sentence under section 366 of the Code of Criminal Procedure and the appellants filed Criminal Appeal No. 620 of 1995 being aggrieved by the conviction under sections 302 and 120-B I.P.C. and the sentence of death awarded to them by the learned III Addl. Sessions Judge.
2. The gravamen of the charge is that the Super Express RTC Bus AP-9Z-4236 was started on 7-3-1993 at 10 P.M. on its journey from Hyderabad to Chilakaluripet. The bus was being driven by P.W.6 and conducted by P.W. 7. It reached Narasaraopet Bus-Station in the early morning of March 8, 1993 at about 4-00 A.M. and started at about 4-15 A.M. from there with 33 persons in the bus, including the driver and the conductor. On Vinukonda Road at the Railway level crossing gate two persons, the appellants herein, stopped the bus and boarded on it. The appellants obtained tickets for Chilakaluripet. The first appellant was carrying a bag. When the bus was about to reach Kondrupadu village, the second appellant started sprinkling petrol from the rear portion of the bus. The driver of bus, examined as P.W. 6, smelling the petrol, switched on the lights and stopped the bus. The second appellant stood by the side of the conductor of the bus, examined as P.W. 7. Both the appellants were armed with knives. Noticing this, the passengers in the bus stood up and raised hues and cries. Having instructed the first appellant to lit a match stick, the second appellant got down from the bus. The first appellant accordingly lit a match stick, which resulted in the bus catching fire. A few passengers of the bus, one of whom was examined as P.W. 1, managed to escape from the door by the side of the drivers seat. The first appellant also jumped out of the bus from the door by the side of the driver and in the process he received burn injuries, P.W. 1 was chased by the second appellant and was made to part with cash of Rs. 700/- and H.M.T. wrist watch, which was recovered during investigation and marked as M.O. 1. Another passenger, examined as P.W. 5, also escaped through the same door. He was chased by the first appellant. On being threatened by him P.W. 5 parted his belongings including his pant. The first appellant gave his pant to P.W. 5 and took the pant of P.W. 5 and wore it. The fire in the bus resulted in injuries to P.W. 5, P.W. 7 and P.W. 9 and another passenger. Nine persons who received burn injuries also got down from the bus. They include deceased Nos. 4, 7, 9, 10, 11, 13, 17, 18 and 20. Fourteen other persons including deceased Nos. 1, 2, 3, 5, 6, 8, 12, 14, 15, 16, 19, 21 and two others whose identity could not be established were burnt to death. At about that time another R.T.C. bus AP. 9Z-4591 came from the opposite direction. The conductor of that bus was examined as P.W. 20. It is in that bus that the injured persons were taken to the Government Hospital, Chilakaluripet and from there they were shifted to Government Hospital, Guntur, where nine persons, described as deceased Nos. 4, 7, 9, 10, 11, 13, 17, 18 and 20 succumbed to the injuries. P.W. 1, the fortunate survivor reached Chilakaluripet Rural Police Station and narrated the incident to the duty Constable. His statement was recorded and the same was marked as Ex. P. 1. On the basis of Ex. P. 1 a case was registered in Crime No. 19/93 of that Police Station. The F.I.R. was registered by the Head Constable which was marked as Ex. P. 128. At 5-00 A.M. the Inspector of Police of that Police Station received phone call about the setting fire to the bus near Kavuru village and reached the scene of offence at 5-30 A.M. by which time the bus was still burning. He was examined as P.W. 59. Having deputed a constable at the scene of offence he returned to the Police Station and learned that the Head Constable had registered the case on the basis of the statement of P.W. 1. He informed this incident by phone to the Deputy Superintendent of Police, Narasaraopet who was examined as P.W. 60 during trial. He reached Chilakaluripet Police Station at 7-00 A.M. Having recorded the statements of P.Ws. 1, 4, 6 and 8, he visited the scene of offence along with P.W. 55 in the presence of P.W. 50 and another person, and prepared observation report, marked as Ex. P. 91 during trial. A photographer, P.W. 56 was called by the Police to take photoes of the scene of occurrence and the dead bodies. They were marked as Exs. P. 92 to P. 108. The negatives of those photographs were marked as Exs. P. 109 to P. 125.
3. From the hospital, the Casuality Medical Officer sent a requisition to the Seventh Additional Munsif-Magistrate, Guntur at about 8-00 A.M. on the same day. The Seventh Additional Munsif-Magistrate was examined as P.W. 45 during trial. He came to the hospital and recorded the dying declarations of deceased Nos. 4, 5, 7, 9, 10, 11, 13 and 17 and also of the Conductor (P.W. 7). The dying declarations recorded by P.W. 45 are marked as Exs. P. 65 to P. 73. The statement of P.W. 7 recorded by the learned Magistrate is marked as Ex. P. 75. Having regard to the number of injured persons who were struggling for life, another Magistrate, viz., the Sixth Additional Munsif-Magistsrate, Guntur was also requisitioned for recording the dying declarations. He recorded the dying declaration of deceased No. 20, which was marked as Ex. P. 88. Inquest was held over the dead bodies of those unfortunate victims. Post-mortem examination was also conducted on their bodies. The doctors who conducted the post-mortem examination were examined as P.W. 43 and P.W. 44 during the trial. The investigation was taken up by the Sub-Inspector of Police, C.C.S., Guntur who was examined as P.W. 62. On receipt of radio message from the I.G. of Police, C.I.D., Hyderabad he made enqiries and on receiving credible information about the suspects in the case he went to the house of the first appellant accompanied by two mediators of whom one is examined as P.W. 57. He found A-1 in his house with burn injuries over his leg hands and face. Though the first appellant tried to escape, on seeing P.W. 62, yet he was arrested. A sum of Rs. 230/-, the pant of P.W. 5 (M.O. 2) Hydrozin peroxide bottle (M.O. 18) and a plastic tin containing Nibasulf powder (M.O. 19) were seized from him. The statement of the first appellant was recorded (Ex. P. 126). Thereafter they went to the house of the second appellant, which was in the same locality, at about 7-00 P.M. The Second appellant was also arrested and his statement was recorded. It is marked as Ex. P. 127. The said statement disclosed that the second appellant pledged HMT Wrist Watch with Siva Pawn Broker. P.W. 62 seized cash of Rs. 155/- from A-2. The Deputy Superintendent of Police, C.I.D. Circar zone, Vijayawada, examined as P.W. 63 in the trial court, went to the house of the second appellant. He also collected the statements Exs. P. 126 and P. 127, recorded by P.W. 62. He took the accused to the C.I.D. Office, Guntur for interrogation and proceeded to the Siva Pawn Brokers Shop and seized the wrist watch and the pawn brokers receipt book Ex. P. 3 under Ex. P. 130 mediators report. The first appellant who was having burn injuries was referred to the doctor P.W. 36. P.W. 36 examined the first appellant and issued the medical certificate Ex. P. 36. The first appellant identified M.O. 2 which was seized from P.W. 5 under Ex. P. 133. He also obtained the specimen signatures and hand writing of the second appellant in the presence of the mediator. They are marked as Exs. P. 76 to P. 81. P.W. 63 then went to the house of the second appellant on 23-3-1993 at 10.00 A.M. A packet containing pant and shirt was produced by the second appellant. In the pockets of the pant were found lodge chits. The pant and the shirt were marked as M.Os. 21 and 22 and the said lodge chits were marked as Exs. P5 and P6. The first appellant led them to a cotton field near Kuppaganji vagu and the knife. M.O. 23 was recovered at his instance from the thorny bush, which was seized under Ex. P. 136 mediatornama. The second appellant led them to Thurlapadu Major Canal and at his instance the knife, M.O. 24 was recovered from the cotton field of Kumba Venkateswarlu, which was seized under Ex. P. 137 mediatornama. The appellants were taken to Narasaraopet by P.W. 63. P.W. 63 visited the shops of P.W. 13 to 19 and recorded their statements. The learned Sixth Additional Munsif-Magistrate, Guntur, who was examined as P.W. 49, conducted test identification parade on April 23, 1993. The identification proceedings are marked as Ex. P. 19. Ten of the witnesses examined by the prosecution, viz. P.Ws 1 to 8 and 10 and 11 participated in the said identification parade. After completion of the investigation, P.W. 63 filed the charge-sheet on June 11, 1993.
4. The prosecution examined as many as 63 witnesses of whom P.Ws. 1 and 4 to 9 are the eye-witnesses to the occurrence, and marked Exs. P1 to P139 and M.Os. 1 to 24. The prosecution also led evidence with regard to the movements of the appellants before the occurrence the summary of which is as follows : P.W. 18 spoke about the appellants purchasing a plastic tin for Rs. 5/-; P.W. 13 spoke to purchase of plastic bag for Rs. 2-50 by the appellants; P.W. 15 spoke to the fact that on 7-3-1993 the appellants purchased four liters of petrol from his petrol bunk at about 6-30 or 7-00 P.M., the price of which was paid by the first appellant. P.W. 16 spoke to the fact that the appellants came to Kumaraswamy Lodge after second show and about their stay in the lodge upto 3.00 A.M. He identified Exs. P5 and P6 lodge receipts, referred to above, as the chits issued by him. Taking of tea by the appellants in the hotel in the early hours of 8-3-1993 was spoken to by P.W. 17. They purchased pan. (beetle leaves) cigerettes and match-box from the pan shop of P.W. 19 near Vinukonda Railway Gate, at about 4.00 A.M.
5. The movements of the accused after the occurrence are also brought on record by the prosecution. After the occurrence, the first appellant went to the shop of P.W. 2 a barber, which is at Boyapalem village. He wanted to get his head shaved there P.W. 2 spoke to this fact and stated that the first appellant was wearing pant and banian and that his hair were burnt and that there were burn injuries on the head. While the first appellant was coming out of the shop of P.W. 2, P.W. 3 noticed him with burn injuries and he spoke to that fact. The first appellant was found going to his village Gopalapuram from Boyapalem at about 2 or 3 P.M. This fact was spoken to by P.W. 11. He further deposed that he had seen burn injuries on the head and legs of the first appellant. The appellants went to the hotel which was situate by the side of Chilakaluripet road where they had taken tiffin which fact was testified by P.W. 14.
6. The evidence of the prosecution, referred to above, was accepted in toto by the learned III Addl. Sessions Judge and the appellants were found guilty of all the 31 charges framed against them and were awarded various punishments. Of those charges, charges 1 to 23 were framed against the appellants under section 302 of the Indian Penal Code for causing the death of deceased Nos. 1 to 23 and charge No. 31 was framed under section 120-B I.P.C. for conspiring to commit highway robberies by illegal means, trespassing into the R.T.C. Bus for causing death of 23 passengers and burn injuries to some passengers. The learned III Additional Sessions Judge convicted the appellants for the offences under sections 302 and 120-B of the Indian Penal Code on all the charges and sentenced them to death, subject to confirmation by the High Court. In this appeal and the Referred Trial, we are concerned with the said charges only and sentence of death awarded to the appellants.
7. Sri C. Padmanabha Reddy, the learned senior counsel appearing for the appellants urged before us three contentions. The first contention is that the version of the prosecution presented before the court is different from the facts noted in the statement of P.W. 1 (Ex. P. 1) and the dying declarations of D-17, D-13, D-20, D-7, D-10, D-4 and D-11, which were marked as Exs. P. 65, 66, 88, 67, 68, 69, 70 and 72 respectively, therefore the story set up by the prosecution ought not to have been accepted by the learned III Additional Sessions Judge, as such the conviction and sentence are liable to be set aside.
8. Ex. P. 1, it has been pointed above, is the statement given by P.W. 1, one of the passengers in the bus, P.W. 1 is a resident of Ananthavaram village and was working as Field Assitant in the Imperial Chemicals of India, Nelakondapally Branch. He said that he travelled in the bus at Mirayalaguda on 7-3-1993 at 11-00 P.M. and got down at Narasaraopet at 4.00 A.M. (early morning of the next day). There he boarded Hyderabad-Chilakaluripet bus to reach his village. He deposed that when the bus reached Railway Crossing in Narasaraopet Town and was proceeding slowly, two persons got into the bus. He identified them as the appellants. He was sitting in a seat behind the dirvers seat. He stated that the appellants were in the back seat and that they sprinkled petrol in the bus and that some petrol fell on his body. The driver having noticed the smell of the petrol stopped the bus and put on the lights. After sprinkling the petrol, the second appellant stood by the side of the conductor, arming himself with a knife, while the first appellant, who was also armed with a knife, stood by the side of the driver. At that time the passengers in the bus stood up from their seats and raised cries. Then the 2nd appellant instructed the first appellant to lit a match stick and got down from the bus. The first appellant accordingly lit the match stick which resulted in the bus cateching fire. All passengers were raising cries and he managed to escape through the door by the side of the driver. After he jumped out of the bus, the second appellant chased him holding the knife in his hand and threatened him to hand over all his belongings. He parted with Rs. 700/- cash which was with him and H.M.T. Wrist Watch. He identified the wrist watch (M.O. 1) which he gave to the second appellant. He said that after taking the wrist watch from him, the second appellant went away and he returned to the bus which was by then engulfed in flames. He found 12 persons with burn injuries lying on the road. He spoke to the shifting of the passengers with burn injuries to the Government hospital, Chilakaluripet where he accompanied the injured persons. His request to the hospital authorities to admit the injured persons in the hospital was not being headed to on the ground that they would do so only on the requisition of the police. Hearing this, he and some others went to Chilakaluripet Police Station. He gave his statement to the Station Writer about the occurrence. It was marked as Ex. P. 1. He said that he identified the appellants and his wrist watch before the Magistrate during the test identification parade on March 20, 1993. This statement has to be tested on the basis of the Statement Ex. P. 1. We may refer to the statement now. In that statement of P.W. 1 recorded on 8-3-1993 at about 6-00 A.M., inter alia, he stated that at about 4-45 A.M. while the bus was passing between Kapuru, Kondrapadu the driver shouted that the petrol smell was emitting in the bus. Meanwhile somebody sprinkled petrol on them from behind. The relevant portion reads as follows :
which means two persons were sprinking petrol while one person was standing with a knife, another person lit the match stick. In the later part of that statement he said that he could identify the said four persons.
9. The other documents relied upon by the prosecution as giving the earliest version of the occurrence are the dying declarations. They are Exs. P65 to 70 and P. 72. Exs. P71, P73 and P75 are the declarations given by P.W. 5, P.W. 9 and P.W. 7 respectively, but as they survived, those statements are not treated as dying declarations. We shall refer to them a little later.
10. Ex. P65 is the dying declaration of D17. The relevant portion of Ex. P65 reads as under :
“I got into the RTC bus that goes to Chilakaluripet from Hyderabad, which reached Narasaraopet by 4.00 A.M. By the time it started and reached half the way in between Narasaraopet and Chilakaluripet, one of the four persons in the bus threatened the driver with a knife and stopped the bus and then the remaining persons poured petrol in the bus and lit with a match stick and got down from the bus and ran away. Myself, and some persons were burnt in the flames. Afterwards some persons came and brought me and others over here. Read over to me and found correct.”
These dying declarations were recorded by the VII Addl. Munsif-Magistrate, P.W. 45. To the same effect are the other dying declarations.
11. It is true that in Ex. P1 as well as in the dying declarations Exs. P65 to P70 and P72, it is stated that four persons participated in the commission of the offence, but in our view nothing turns on this lone inconsistency in view of irrefragable evidence of eye-witnesses – P.Ws. 1 and 4 to 9 and other corroborative evidence, referred to above. Further the appellants were identified by the witnesses in the test identification parade. P.Ws. 2, 3, 5 to 8, 10 and 11 identified the first appellant and P.Ws. 1 and 6 identified the second appellant, both in the identification parade as also in the Court. While considering this aspect it would be appropriate to bear in mind that at about 4.00 A.M. the passengers would be either sleeping or feeling drowzy in the Bus. In this connection the statements of the driver and conductor who are not merely expected to be awake but also noticed the persons boarding and alighting in such buses, require consideration. The driver, P.W. 6, stated that at the railway level crossing gate of Vinukonda road two persons raised their hands to stop the bus and he then stopped the bus. Those persons boarded the bus. Thereafter the bus proceeded towards Chilakaluripet. Having smelt petrol smell in the bus he stated in a loud voice to the conductor that petrol smell was emanating and he stopped the bus and switched on the lights. He identified the appellants as the persons who boarded the bus at the railway level crossing. After some time he found the first appellant near the bonnet holding a knife in one hand and carrying a match box and the second appellant standing near the main door by the side of the conductor holding a knife threatening the conductor not to move from his seat. On seeing this, the passengers raised from their seats. Then the second appellant instigated the first appellant to lit match stick and set the bus on fire and so saying he got down from the bus. The first appellant lit the match stick and set fire to the bus. After four or five persons and the driver jumped out from the bus, the first appellant also got down. P.W. 7, the conductor, stated that the appellants signalled the bus to stop at the railway level crossing gate and that the driver stopped the bus. Thereafter the appellants got into the bus. He also stated that the first appellant was carrying a bag. The appellants took two tickets from him for Chilakaluripet. When the bus was nearing the outskirts of Kondrupadu village, P.W. 6 put on the lights by stating that petrol smell was emanating and so saying he stopped the bus. At that time he found the second appellant standing in front of him armed with a knife and threatened him and all the passengers that should they move he would kill them. P.W. 7 also spoke to the fact that the first appellant stood near the bonnet armed with a knife and having a match box in his hand. The second appellant poured the remaining petrol into the bus, instructed the first appellant to lit the match stick and set fire to the bus and so saying he got down from the bus, P.W. 7 received burn injuries. As the condition of P.W. 7 was serious due to burn injuries, his statement was also recorded as dying delcaration, which is marked as Ex. P75. In the said declaration he stated, “…. Two persons boarded at the Railway gate after starting from Narasarapet ….. I felt petrol smell ….. a youth came with a knife and threatened to hack if anybody raises up.” He further stated in Ex. P75 “I was surprised. The person who shouted, sprinkled the petrol in the bus. By that time, the bus was already stopped. Before opening the door to run away flames rose up in the bus due to petrol. I fell on somebody and pushing on the door fell on the road. ….”
12. So far as the admissibility of this declaration of P.W. 7 (Ex. P75) is concerned, true it cannot be admitted as dying declaration but as it is a statement made shortly after the occurrence, at the earliest opportunity and is so connected with the fact in issue as to form part of the same transaction. So in our view it is relevant and admissible as res-gestae under section 6 of the Evidence Act. This piece of evidence apart from being consistant with the version of the occurrence given by P.W. 7 in court, also corroborates the statement of P.W. 6 the driver and other witnesses. There are no discrepancies in the material particulars in the evidence of the witnesses as well as the dying declarations except the number of persons who were involved in the crime. Having regard to the fact, as already indicated above, that P.W. 1 and the deceased whose dying declarations were recorded must have been in a drowzy condition in the bus when this occurrence happened and by the time they woke up there was lot of commotion and number of persons were standing, there is every possibility for them to say that four persons were involved. That would not in any way demolish the case of the prosecution that the appellants were the persons who were involved in the offence.
13. It is then argued by Mr. Padmanabha Reddy that the first appellant was having burn injuries as such his identification by the witnesses in the test identification is not a proper identification and as P.W. 7 did not identify the second appellant, he cannot be said to be properly identified.
14. So far as the first appellant is concerned, he was identified by P.Ws. 2, 3, 5, 6, 7, 8, 10 and 11 in the test identification parade conducted by the Magistrate P.W. 49 under Ex. P90, proceedings of the identification parade. The only comment with reference to the identification of the first appellant is that as the first appellant was having burn injuries it was easier for anybody to identify him and therefore that identification of the first appellant under Ex. P90 in the presence of the Magistrate P.W. 49 cannot be believed. We are unable to accept this contention. In his cross-examination P.W. 49, the Magistrate, has categorically stated that the burn injuries on the person of the suspect were covered by trouser and therefore they were not visible to the witnesses and that the witnesses went nearer to the row of the persons and identified him. He failed to give any plausible explanation for the burn injuries. Having gone through the depositions of P.Ws. 2, 3, 5, 6, 7, 8, 10 and 11, we are satisfied that the identification of the first appellant as the person who was involved in the commission of the offence, has been proper and his participation in the offence has been amply established.
15. So far as the second appellant is concerned, he was identified by P.Ws. 1 and 6. Those witnesses identified both in the test identification parade conducted by the Magistrate P.W. 49, as recorded in Ex. P90 proceedings as well as in the trial court. Nothing is elicited in the cross-examination of these two witnesses to discredit their testimony. Failure of P.W. 7 to identify him in the test identification parade would not create slightest doubt of his presence and participation in the commission of the offences.
16. We have already referred to the evidence of P.Ws. 13, 14, 15, 16 and 17 with regard to the movements of the appellants before the event and also to the movements of the appellants after the event. However, we would like to advert to two aspects. The first aspect is that the first appellant who had received burn injuries chased P.W. 5 and compelled him to part with his pant as the pant of the first appellant was burnt. He took the pant of P.W. 5 (M.O. 2), P.W. 63 stated that on the statement of the first appellant M.O. 2 pant of P.W. 5 was recovered from the first appellant, so also the pant of the first appellant was recovered from P.W. 5. The second aspect is after P.W. 1 the passenger who was sitting behind the driver’s seat jumped out of the bus he was chased by the second appellant with the knife in his hand. The witness parted with the cash of Rs. 700/- and the wrist watch which was marked as M.O. 1. That wrist watch was pledged by the second appellant with Siva Pawn Broker as spoken to by P.W. 12, who worked as Clerk in the pawn broker’s shop in 1993. P.W. 12 stated that the second appellant pledged a cycle with Siva Pawn Brokers shop in his presence. He drafted the receipt Ex. P2 which is said to contain the signature of the second appellant. He further stated that on 10th March, 1993, the second appellant pledged an H.M.T. wrist watch for Rs. 150/- and the pledge receipt executed at that time was marked as Ex. P3. The witness says that the second appellant left the original receipt (Ex. P4) and that the same was handed over to P.W. 63. P.W. 63 stated that the second appellant gave the statement which led to the discovery of M.O. 1. These circumstances also establish the involvement of the second appellant.
17. The second contention of Mr. C. Padmanabha Reddy is that the appellants could not be convicted of the offence under Section 302 I.P.C. simpliciter. We are unable to appreciate this submission. A plain reading of the charges particularly charge No. 31 and the sentence awarded by the Court will make it evidence that the contention is devoid of merit. Charge No. 31 reads as follows :
“… That you some time prior to 7-3-1993 agreed to do an act viz. to earn easy money committing highway robberies by illegal means, to wit by trespassing into the R.T.C. bus and by restraining, or causing hurt or causing death of the passengers travelling in the bus and that some act viz. resulting 23 deaths of passengers and burn injuries to some and robbery from some persons were done in pursuance of your consipiracy due to sprinking petrol in the bus and litting fire with match stick and thereby committed an offence punishable under section 120-B of the Indian Penal Code and within my cognizance”.
18. Clause (1) of sentence awarded by the Court is in the following terms :
“(i) For the charges under section 302 I.P.C. and 120-B I.P.C. the accused 1 and 2 are sentenced to death and they be hanged by the neck till they are dead. The sentence of death passed is subject to the confirmation by the High Court of A.P.”
19. From the above charge it is evident that this charge itself refers to conspiring together not merely by highway robberies by illegal means but also by causing hurt or death of the passengers travelling in the bus and by the same act causing deaths of 23 passengers and injuries to some of them and of robbing some persons pursuant to the said conspiracy, burn injuries to some by sprinkling petrol in the bus and litting fire with match stick and thereby committing offence punishable under section 120-B I.P.C. And clause (i) of the sentence, above extracted, makes it clear that for the charges under section 302 I.P.C. (charges 1 to 23) and for charge under section 120-B I.P.C. (charge No. 31) appellants 1 and 2 are sentenced to death and are directed to be hanged till they are dead but the sentence of death is subject to the confirmation by the High Court. Thus the sentence is passed not only under section 302 I.P.C. simpliciter but also under Section 120-B I.P.C.
20. Further the appellants together participated in the offences; the second appellant sprinkled petrol in the bus and the first appellant lit the match stick to the bus after petrol was sprinkled. These facts are sufficient to bring the case under section 302 I.P.C. because these very acts were such that the accused would be deemed to know that pouring the petrol in the bus and litting fire are so eminently dangerous that in all probabilities it would cause death or such bodily injury as is likely to cause death of the passengers. Therefore, they were rightly found guilty of the offence under section 302, I.P.C.
21. For the aforesaid reasons the evidence on record, discussed above, clearly establishes the guilt of the appellants beyond and reasonable doubt for the offence under section 302 and Section 120-B of I.P.C. and in our view that learned trial Judge was right in convicting the appellants for the said offences.
22. The third and the last contention of Mr. C. Padmanabha Reddy relates to quantum of punishment. The learned counsel countends that this case does not fall within the rarest of the rare cases as the number of deaths is not the criteria to bring the case in that category, so the punishment should be reduced to one of life imprisonment.
23. In regard to the quantum of punishment, the Indian Penal Code gives a very wise discretion to the Court in the matter of awarding punishment. The maximum and the minimum punishments are prescribed under the Code and it is left to the discretion of the court to award appropriate punishment having regard to the aggravating and mitigating circumstances in each case. Though there are no general guide lines for purposes of awarding punishment, yet it is the judicial discretion that guides the courts in the matter of sentencing. However on the question of awarding the sentence for the offences for which life imprisonment as well as the death sentence is prescribed, sub-section (3) of Section 354 of the Code of Criminal Procedure enjoins that in the case of sentence of death, special reasons for such sentence shall be stated. The provisions of the said Section fell for consideration of the Supreme Court in Bachan Singh v. State of Punjab, AIR 1980 SC 898 : 1980 Cri LJ 636. The Supreme Court pointed out the change in the policy of sentencing thus :
“Section 354(3) of the Code of Criminal Procedure, 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 the 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.”
and elucidated the principles for awarding proper sentence. It will be advantageous to note the following observations :
“… 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. 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 water-tight 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.
24. The principles laid down in the above case were applied in various cases by the Supreme Court. In Allauddin Main v. State of Bihar, AIR 1989 SC 1456 : 1989 Cri LJ 1466. His Lordship Justice A. M. Ahmadi (as he then was) while upholding the death penalty, laid down the principles for imposing extreme punishment of death as follows :
“In the face of the statutory provision in Cl. (3) of Section 354 of Cr.P.C. requiring giving of special reasons while imposing death penalty which is consistent with Art. 21 of the Constitution which enjoins that the personal liberty or life of an individual shall not be taken except according to the procedure established by law, extreme plea of death in no case cannot be countenanced and the death penalty cannot be said to be violative of Article 21.
Section 302 IPC casts a heavy duty on the Court to choose between death and imprisonment for life. When the court is called upon to choose between the convict’s cry ‘I went to live’ and the prosecutor’s demand ‘he deserves to die’ it goes without saying that the Court must show a high degree of concern and sensitiveness in the choice of sentence. ….. In cases of murder, however, since the choice is between capital punishment and life imprisonment the legislature has provided a guideline in the form of sub-section (3) of Section 354. This provision makes it obligatory in cases of conviction for an offence punishable with death or with imprisonment for life or for a term of years to assign reasons in support of the sentence awarded to the convict and further ordains that in case the Judge awards the death penalty, “special reasons” for such sentence shall be stated in the judgment. ……. In order that the sentences may be properly graded to fit the degree of gravity of each case, it is necessary that the maximum sentence prescribed by law should be reserved for ‘the rarest of rare’ cases which are of an exceptional nature. Unless the nature of the crime and the circumstances of the offender reveal that the criminal is a menace to the society and the sentence of life imprisonment would be altogether inadequate, the Court should ordinarily impose the lesser punishment and not the extreme punishment of death which should be reserved for exceptional cases only.”
25. We may also notice here the recent pronouncements of the Supreme Court on this aspect. In Shamshul Kanwar v. State of U.P., AIR 1995 SC 1748 it was laid down that in determining the category of ‘the rarest of rare’ cases the number of deaths will not ipso facto be a ground to bring the case in that category. In that case there were factions between the prosecution party and the accused party. While the prosecution party came to the village along with gunmen accompanied by armed police party to bury an old lady, fight broke out between the two parties. That resulted in the death of ten persons on the side of the prosecution party and one death on the side of the accused party. Their Lordships of the Supreme Court held :
“…. The large number of deaths on one side cannot ipso facto be a ground to bring the case into the category of “rarest of rare cases” particularly when we take into consideration the other aspects mentioned above.”
26. In Balraj v. State of U.P., AIR 1995 SC 1935 it was observed that in awarding death sentence the Court has to take into consideration the mental condition of the accused and that fact should be given weight in determination of the sentence. There was evidence in that case that the accused was mentally disturbed and had expressed that the other party wanted to kill him and therefore he would finish them. It was held, on the facts and circumstances of that case, that it could not be said that the accused would be a menace to the society if allowed to live.
27. In Sheikh Ishque v. State of Bihar, 1995 Current Cri Rep 48 two principles were laid down by the Supreme Court –
(i) in considering the question of awarding death sentence the number of victims alone would not make the case ‘rarest of the rare’; and
(ii) imposition of proper sentence is an obligation on the court and even if no argument had been addressed on behalf of the appellants the court was expected to take note of the legislative intendment relating to the award of capital punishment as manifest from the provisions of Section 354(3) Cr.P.C. and award and appropriate sentence, after taking into account the aggravating as well as the mitigating circumstances.
28. On the application of the aforementioned principles, the Supreme Court did not find any of the cases, referred to above, as falling in ‘the rarest of the rare’ case and so decline to confirm the death sentence.
29. Hence it would also be appropriate to take note of the cases where applying the same principles awarding death sentence was confirmed by the Supreme Court.
30. Kehar Singh v. State, AIR 1988 SC 1883 : 1989 Cri LJ 1 is a well-known case of the trial of the persons who were involved in the assassination of the great daughter of India and the Prime Minister of our country, Madame Indira Gandhi. It was pointed out that the act of the accused not only took away the life of the popular leader but also undermined out system which had been working so well for the last forty years. There was an important factor which warranted serious consideration. The accused were persons who were posted on the security duty of the Prime Minister. Their posting was to protect her from any intruder or from any attack from outside and therefore if they themselves resorted to that kind of offence, there appeared to be no reason or no mitigating circumstances for consideration on the question of sentence. There was yet another additional factor which was considered and that was that an unarmed lady was attacked by the accused with a series of bullets and it had been found that a number of bullets entered her body. The manner in which mercilessily she was attacked by the accused on whom the confidence was reposed to give her protection repelled any consideration of reduction of sentence.
31. In Shankar v. State of T.N., (1994) 4 SCC 478 while considering the question of awarding death sentence the Supreme Court referring to the principles laid down in the earlier cases and pointed out that the aggravating circumstances and the mitigating circumstances should be considered in each case. There, the first accused was the leader of the gang which indulged in the business in illicit arrack and broth business which was unlawful and most harmful to the society. He was responsible for spoiling the lives of many girls some of whom he kept for himself. He used to be very cruel to them and used to burn the young girls with cigarrette butts as a result one of them committed suicide and one of them who could not adjust herself to live with him, was brutally murdered and in order to screen the said offence he got the body burried. It was pointed out that the said accused indulged in those crimes in an organised manner and his own confession gave the details of the diabolical and cruel manner in which he participated in killing D1 to D3 as well as D4 to D6. The crime indulged was gruesome, Cold-blooded, heinous, atrocious and cruel and he was proved to be an ardent criminal and thus a menace to the society. In those circumstances it was held that the case fell within the category of “the rarest of the rare cases”.
32. From the above discussion, the following principles emerge :-
(i) Though under the Indian Penal Code, the Court has a very wide discretion in the matter of awarding sentence, yet when the conviction is for an offence punishable with death or in the alternative with imprisonment for life or imprisonment for a term of years, the court, if it deems fit to award death sentence, shall state special reasons for such sentence and the choice of maximum punishment of death should be reserved for the rarest of the rare case.
(ii) What reasons constitute special reasons, will have to be determined on the facts and in the circumstances of each case and in the very nature of things no criteria can be specified. Even so a case of ‘special reasons is made out, where the facts of case disclose that the culpability of the accused has assumed extreme depravity; where the accused is found to be an ardent criminal and menace to the society; where the crime is committed in an organised manner and is gruesome, cold blooded, heinous, atrocious and cruel; where innocent unarmed persons are attacked and murdered without any provocation and where murder is committed by an accused who was in duty bound to protect the victim. This is not exhaustive.
(iii) To determine whether the case falls in ‘the rarest of the rare’ cases, the court shall consider both the aggravating as well as the mitigating circumstances in the case.
(iv) Here again we may observe that it is neither possible nor desirable to attempt to specify the aggravating and the mitigating circumstances. They take their colour from the setting in which they occur and their effect will have to be considered on the facts of each case. However, it may be pointed out that number of deaths ipso-facto will not make a case ‘the rarest of the rare’ case but will be a relevant aggravating circumstance and the mental condition of an accused will be a relevant mitigating circumstance.
33. Keeping the above principles in mind, we shall now consider whether the case falls in ‘the rarest of the rare’ cases, with due regard to the aggravating and mitigating circumstances in this case. The appellants were interested in some gain from the passengers of the bus. To fulfil their objective, they conspired to board a bus, illegally extract money and the valuables and then burn the bus. For that purpose they purchased petrol and the match box. Without any provocation or seeing danger to their lives from the passengers who were almost asleep in the early hours of the day, at about 4-00 A.M. sprinkled petrol in the bus and lit fire to the bus resulting in the death of 23 innocent persons who had done nothing to invite their wrath or to instigate them to take the extreme step. It is not a case where due to any danger to their lives or to avert being overpowered by the passengers they did something spontaneously without any pre-meditation which had unfortunately resulted in the occurrence, but it is a case where they came fully prepared for the crime and executed it in an atrocious and cold-blooded manner. These facts indicate culpability of extreme depravity. Though we are not unmindful of the fact that the number of victims alone does not bring the case within the category of the rarest of the rare case yet we cannot ignore the fact that they were armed with knives, the second appellant was standing near the door of the bus close to the conductor and the first appellant was standing near the driver by the side of the bonnet threatening them with dire consequences if anyone should try to move and lit the bus soaked in petrol by them and made thus 23 innocent persons have lost their lives because of the cruel and gruesome acts of the appellants. By no stretch of imagination it can be said that the consequence of burning a bus having about 31 persons on board, in such a situation, would not be known to the appellants. As against this, the mitigating circumstances pleaded by the learned counsel for the appellants are that they are aged about 22 years and that they had no previous record of having committed any such offences; it was only because of poverty they made an attempt for some gain; though they were armed with knives they did not inflict any injury to anybody and that the pouring of petrol and litting fire was only to cause terror but not to kill the passengers but to rob their belongings. We must observe that while making the choice of death sentence for an accused, the court invariably gives the most anxious consideration keeping in mind that the life once taken under the order of the Court cannot be restored by the order of the Court and that mercy seasons justice, but at the same time guards against misplaced sympathy for that would shake the confidence of the citizens in the administration of justice and would have the tendency to tempt them to resort to private vengeance which sould be destructive of the administration of justice. But where the circumstances are such and the behaviour of the accused to commit the offence is so cruel and gruesome that if accused is allowed to live he would become menace to the society, the court would have no option but to confirm the death sentence of such persons though reluctantly.
34. Having considered the aggravating circumstances and the mitigating circumstances pleaded by the appellants, in our view the case falls within ‘the rarest of the rare’ cases as by their cruel and heinous acts the appellants have exihibited such tendency in committing the offence for petty gains they did not hesitate to burn the bus by sprinkling petrol without paying heed to the cries of innocent persons, particularly of girl of 7 years who threw her golden chain praying not to set fire to the bus and burn 23 persons alive, so if they are allowed to live, after a few years they would come out of the jail and become menace to the society. Confirmation of death sentence, in our view, would best serve the interest of justice.
35. Insofar as the culpability of the accused, in our view no distinction can be made and both are liable for the crime they have committed.
36. In the result, the convictions of both the appellants and the sentence of death awarded against them for the offence under sections 302 and 120-B of the Indian Penal Code are confirmed, and the reference is answered accordingly. The Criminal Appeal preferred by the appellants is dismissed.
Appeal dismissed.