State, Petitioner V. Setalu Sudam Reddy, Opposite Party.
DATE : 11-10-1991  1992-(098)-CRLJ -3503 -ORI
JUDGE(S) : D M Patnaik  G B Patnaik  ORISSA HIGH COURT
JUDGMENT
G. B. PATNAIK, J. :- The learned Additional Sessions Judge, Ganjam, Berhampur, having convicted the accused under S. 302, Indian Penal code, and having sentenced him to be hanged by the neck till he is dead has made the reference to this Court under S. 366 of the Code of Criminal Procedure. The accused has preferred the Criminal Appeal from the Jail against his conviction and sentence passed by the learned Additional Sessions Judge under S. 302 as well as under S. 324, Indian Penal Code. By the judgment of the learned Additional Sessions Judge, the accused has been convicted under S. 302, Indian Penal Code for killing a young girl called Sabita Reddy and has further been convicted under S. 324, Indian Penal Code, for causing hurt to P.Ws. 1 and 10 and has been sentenced to rigorous imprisonment for two years on that count.
2. The prosecution case, in brief, is that one and half years prior to the date of occurrence, a quarrel had ensued between the accused and the father of the deceased and on account of the said quarrel, the accused had borne a grudge. On 20th of June, 1990, at 11.00 a.m. deceased a young girl of six years’ old was playing on the village ‘Danda’ along with her friends. The accused all on a sudden lifted the deceased and entered into his house and bolted the doors from inside. Several persons who saw the lifting of the girl raised hullah. P.Ws. 1, 4 and 10 came running and knocked the door of the accused, but the door was found to be closed. At last they broke open the back-side door and entered into the house and found deceased Sabita lying dead with bleeding injuries and a small ‘Kati’ (M.O. I.) stained with blood was lying there. They also found the accused himself standing there with another ‘Khanda-Kati’ (M.O. II) and when P.Ws. 1 and 10 advanced towards the accused, he struck them with the weapon in his hand as a result of which both P.Ws. 1 and 10 sustained injuries and thereafter the accused escaped through the back-door with M.O. II in his hand. P.W. 1 then went to the police station and lodged a report which was treated as F.I.R. (Ext. 1). The two injured persons, namely P.Ws. 1 and 10 were examined medically on police requisition. The police then registered a case and started investigation and on completion of the investigation filed charge-sheet. On being committed, the accused stood his trial.
3. The defence plea is one of denial.
4. The prosecution examined 11 witnesses in all. The defence has examined none. Of the 11 prosecution witnesses, P.Ws. 5 and 6 deposed about the accused lifting the child and entering into his house. P.Ws. 1, 4 and 10 deposed about their breaking open the door of the house of the accused and entering inside, their seeing the deceased lying injured with bleeding injuries and accused standing there. P.W. 2 is the doctor who examined P.Ws. 1 and 10 and P.W. 3 is the doctor who had conducted the autopsy on the dead body of the deceased. P.W. 7 is the Sub-Inspector of Police who apprehended the accused near Khajuria Bandha tank and P.W. 8 is the constable who took the dead body of Sabita for post-mortem examination. P.W. 9 is the magistrate who had recorded the confessional statement of the accused and P.W. 11 is the Investigating Officer.
5. The learned Additional Sessions Judge relying upon the evidence of P.Ws. 1, 4, 5, 6 and 10 as well as the confessional statement of the accused, Ext. 14, came to the conclusion that it was the accused who was the author of the injuries found on the deceased Sabita as well as in respect of the injuries found on P.Ws. 1 and 10. Considering the act of the accused to be a brutal one, the learned Additional Sessions Judge convicted the accused under S. 302, Indian Penal Code, and awarded the extreme penalty of death. So far as the conviction of the accused under S. 324, Indian Penal code is concerned, penalty of rigorous imprisonment for two years has been awarded by the learned Additional Sessions Judge.
6. Mr. Mund, the learned Counsel appearing for the accused, places before us the evidence of P.Ws. 1, 4, 5, 6 and 10 but is unable to point out any infirmity in their statements so as to impeach their testimony. We shall scrutinise their evidence to find out whether there is any infirmity in their testimony. But having failed in his attempt to impeach the testimony of these witnesses, Mr. Mund submits that even though the accused might have committed murder of deceased Sabita, yet there is no special reason, special to the facts and circumstances of the present case, which can be catalogued as justified for a severe punishment of death sentence, particularly when the crime in question cannot be said to have sent tremors in the community to be firmly dealt with to protect the community from the perpetrators of such crime.
7. Before considering the question whether the extreme penalty of death should be awarded in the facts and circumstances of the present case, we think it appropriate to consider the evidence on record to find out whether the prosecution has been able to establish the charge beyond all reasonable doubts. Admittedly, nobody has seen the accused inflicting the blows on the deceased by means of a knife. But P.Ws. 5 and 6 saw the accused picking up the deceased from the village ‘Danda’ and entering into his house and bolting the doors from inside. P.W. 5 in is evidence states that on the date of occurrence at 11.00 a.m. while he was sitting on the verandah of the house of one Sreeramulu he heard the shout that Sudam took away one child and when he saw he found Sudam running holding a child and entered into his house. He, of course, could not identify the child which Sudam was carrying. He further states that on verification he could know that the missing child was Sabita who had been carried away by Sudam. He further states that he tried to open the door, but the door was bolted. Though he has been cross-examined, but nothing has been elicited from his evidence to impeach his testimony.
P.W. 6 is another witness who also deposes about the lifting of a child from the village ‘Danda’ by the accused. She states that while she was going on the village ‘Danda’ and was near the house of one Dillesu, she saw accused picking up one child and then running entered into his house and bolted the doors from inside. She raised hullah that Sudam took away one child and some time later she went to the front verandah of the house of the accused and found a girl aged 5 years lying dead inside the room. According to her evidence she could learn that the girl was called Sabita, daughter of Mahadev Reddy. She has also been cross-examined by the defence, but nothing has been elicited to impeach her evidence, as stated earlier.
On the basis of the evidence of the aforesaid two witnesses, P.Ws. 5 and 6, we have no hesitation to hold that the prosecution has been able to establish through cogent and reliable evidence that on the date of occurrence at 11.00 a.m. the accused took away the deceased Sabita from the village ‘Danda’ and entering into his house bolted the doors from inside.
The next circumstance that is established through the prosecution evidence is that when the door of the accused was broken open the deceased was found dead with bleeding injuries and the accused was standing there with M.O. II in his hand. This has been established through the evidence of P.Ws. 1, 4 and 10. P.W. 1 is the uncle of the deceased and according to him 20-6-1990 and 11-00 a.m. while he was reading in his house and Sabita was playing with other village girls of the village ‘Danda’, there was a hullah in the village that accused Sudam took away one child. Hearing this hullah he came out and on searching Sabita was found missing. Then he along with Abhi Sahu (P.W. 4), Krushnamurthy Reddy (P.W. 10) knocked the door of the accused, but as the accused did not respond, he brought a crow-bar and broke open the backside door of the house of the accused. Then all three of them entered into the house and in the eastern room found Sabita lying dead with bleeding cut injuries and a small Kati was lying there. The accused was standing there holding a sword and as they advanced towards the accused, the accused gave him one blow on his head. The accused also gave another blow which hit the left shoulder of P.W. 1. Then P.W. 10 also proceeded towards the accused, but he was also assaulted and the accused holding the ‘Khanda-Kati’ ran away through the back side door. P.W. 1 had lodged the information at the police station and in the FIR he had given a full account of the occurrence as to what he stated in Court. There has been a lengthy cross-examination of P.W. 1, but Mr. Mund has not pointed out any material in his cross-examination to impeach his version. On scrutiny of the evidence of P.W. 1, we are of the considered opinion, that he is a wholly reliable witness and his evidence can be safely relied upon the bring home the charge against the accused-appellant. The evidence of P.W. 1 has been fully corroborated by the evidence of P.Ws. 4 and 10 all three of whom had entered simultaneously into the house of the accused by breaking open the back door by means of the crow-bar which P.W. 1 had brought from his house. We have also scrutinised the evidence of P.Ws. 4 and 10, but nothing has been pointed out from their cross-examination to discard their testimony. On the reliable evidence of P.Ws. 4 and 10, it can be unhesitatingly held that the prosecution has been able to establish through cogent materials that when the house of the accused was broken open, the deceased was found lying dead with bleeding injuries and a ‘kati’ was lying near her and the accused was standing there with the ‘Khanda-kati’ in his hand and when P.Ws. 1 and 10 approached towards the accused to apprehend him, they were also assaulted, whereafter the accused ran away from the place of occurrence.
The Serologist’s report (Ext. 10/1) indicates that human blood was found on the knife (M.O.I.). Another important incriminating piece of evidence against the accused is his own confessional statement (Ext. 14). The magistrate who recorded the confession has been examined as P.W. 9 Mr. Mund in course of argument fairly states that there is no infirmity with the confessional statement and it fully corroborates the circumstances established by the prosecution witnesses and the confessional statement must be held to be a voluntary one. P.W. 9, the magistrate, has deposed in his evidence as to the precautions he had taken before recording the confession. We have carefully examined the confessional statement (Ext. 14). The accused clearly stated in his confessional statement recorded by the magistrate that as he had declared that he would kill somebody from the family of Mahadev Reddy, on the date of occurrence when he found the young girl Sabita on the road, he picked her up and took her to his house and bolted the doors and then with the knife he cut the neck of the deceased as a result of which the deceased died. No doubt, he has stated further that P.W. 10 had asked him to kill somebody from Mahadeb’s family, but there is no material in support of that part of the statement. The confessional statement of the accused, as discussed above, fully implicates himself and corroborates the evidence of P.Ws. 5 and 6 with regard to the lifting of the child as well as corroborates the evidence of P.Ws. 1, 4 and 10 with regard to inflicting the injuries on the neck of the deceased as a result of which the deceased died. The confessional statement is a true and voluntary one and, therefore, can form the sole basis of conviction of the accused-appellant. In his statement under S. 313 of Code of Criminal Procedure, even the accused does not disown the confession, but states that as he was not in a proper state of mind, he had said so before the magistrate. But there is not an iota of material to indicate about any improper state of mind of the accused. In the premises, as aforesaid, the confessional statement (Ext. 14) which has been held by us to be a true and voluntary one, fully implicates the accused in the commission of the murder of the deceased.
8. At this stage, it would be proper for us to examine the evidence of the doctor who had conducted the autopsy on the dead body of the deceased, namely P.W. 3, P.W. 3 states in his evidence that he found seven external injuries of which there were four incised wounds, one slash wound, one abrasion and multiple small abrasions. He opined the injuries to be ante mortem in nature and injuries 1 to 5 to have been caused by sharp heavy cutting weapon like “kati” etc. He categorically stated that the injuries were homicidal in nature and injury No. 1 alone was sufficient to cause death instantaneously. According to him death was due to shock on account of the aforesaid injuries. In view of the evidence of the doctor (P.W. 3), the conclusion of the learned Additional Sessions Judge that the deceased met a homicidal death remains unassailable and, in fact, Mr. Mund for the accused-appellant does not assail the said conclusion and, in our opinion, rightly so.
9. In view of the aforesaid evidence, we have no hesitation to confirm the conclusion of the learned Additional Sessions Judge that it is the accused who is the perpetrator of the crime and who caused the injuries in question on the deceased as a result of which the deceased died and, therefore, the prosecution must be held to have established the charge under S. 302, Indian Penal Code, against the accused-appellant, beyond all reasonable doubts.
10. The question, however, further remains for consideration is whether the offence can be said to be of such an exceptional nature and the offender is of such a menace to the society that he deserves the extreme punishment of death. No doubt, the injuries on the deceased indicate that the assault on her was brutal after lifting her from the road while she was playing. Mr. Mund, the learned counsel for the accused-appellant, brings to our notice two decisions of the Supreme Court, reported in AIR 1980 SC 898 : (1980 Cri LJ 636) (Bachan Singh v. State of Punjab) as well as AIR 1989 SC 1456 : (1989 Cri LJ 1466) (Allauddin Mian, Sharif Mian v. State of Bihar). In those decisions their Lordships of the Supreme Court has indicated as to where the extreme penalty of death should be given. In Bachan Singh’s case (AIR 1980 SC 898), where the constitutionality of the provision of award of death penalty had been challenged, their Lordships of the Supreme Court observed (at page 681 of Cri LJ) :-
“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 depracity that ‘special reasons’ can legitimately be said to exist”.
With reference to the facts and figures furnished by the Union of India in that case, it was also indicated that –
“…… Facts and figures albeit incomplete, furnished by the Union of India, show that in the past Courts have inflicted the extreme penalty with extreme infrequency – a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter ……”
In Allauddin Mian’s case (AIR 1989 SC 1456), their Lordships of the Supreme Court observed (at pages 1464 & 1465) :-
“……. 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 want 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 our justice delivery system several difficult decisions are left to the presiding officer, sometimes without providing the scales or the weights for the same. 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 S. 354 of the Criminal P.C., 1973 …… 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 ……”
It was further observed :-
“…… Where a sentence of severity is imposed, it is imperative that the Judge should indicate the basis upon which he considers a sentence of that magnitude justified. Unless there are special reasons, special to the facts of the particular case, which can be catalogued as justifying a severe punishment the Judge would not award the death sentence. It may be stated that if a Judge finds that he is unable to explain with reasonable accuracy the basis for selecting the higher of the two sentences his choice should fall on the lower sentence. In all such cases the law casts an obligation on the Judge to make his choice after carefully examining the pros and cons of each case. It must at once be conceded that offenders of some particularly grossly brutal crimes which send tremors in the community have to be firmly dealt with to protect the community from the perpetrators of such crimes, where the incidence of a certain crime is rapidly growing and is assuming menacing proportions, for example, acid pouring or bride burning, it may be necessary for the Courts to award exemplary punishments to protect the community and to deter others from committing such crimes. Since the legislature in its wisdom thought that in some rare cases it may still be necessary to impose the extreme punishment of death to deter others and to protect the society and in a given case the country, it left the choice of sentence to the judiciary with the rider that the Judge may visit the convict with the extreme punishment provided there exist special reasons for so doing …….”
Applying the tests laid down in the aforesaid two cases to the facts and circumstances of the present case, we find that the motive for the crime was quite obscure and the killing was not for any gain. Even though the assault has been brutal, yet it cannot be said that it is one of those “rarest of the rare” cases where the extreme penalty of death should be awarded. Taking into consideration the nature of the crime and the circumstances of the offender, it is not possible to hold that the offence is a menace to the society and, therefore, the sentence of life imprisonment would be altogether inadequate. We would accordingly hold that this case does not, deserve the extreme punishment of death and, on the other hand, we would sentence the accused-appellant with the alternative punishment of imprisonment for life. Consequently, while upholding the conviction under section 302, Indian Penal Code, we direct that the accused-appellant be sentenced to imprisonment for life. The reference made by the learned Additional Sessions Judge under S. 366 of the Code of Criminal Procedure is accordingly discharged.
11. So far as the conviction of the appellant under S. 324, Indian Penal Code, is concerned, as well as the sentence passed thereunder, the same remains unassailable and cannot be interfered with.
The Death reference as well as the Jail Criminal Appeal are accordingly disposed of.
D. M. PATNAIK, J. :- 12. I agree.
Order accordingly.