DATE : 16-06-1992  1992-(098)-CRLJ -3027 -AP

JUDGE(S) : Motilal B Naik Syed Shah Mohammed Quadri ANDHRA PRADESH HIGH COURT

JUDGMENT

SYED SHAH MOHAMMED QUADRI, J. :- The sole accused in Sessions Case No. 9 of 1991 on the file of the Metropolitan Sessions Judge, Vijayawada, was tried for the offence under S. 302, I.P.C. for committing the murder of Bolem Sai Babu, hereinafter referred to as ‘the deceased’, at about 4.30 p.m., on 14, April 1991 when the deceased was about to tap toddy from the palmyra tree of Bolem Raghavulu which is situated on the irrigation channel bund near the field of Kolli Ramakrishna Rao of Mudunuru village. On 23-3-1992 the learned Metropolitan Sessions Judge convicted the accused of the said offence, sentenced him to death by hanging and referred the case to this Court for confirmation of the sentence.

2. The accused filed Criminal Appeal No. 292 of 1992 against the judgment of the learned Metropolitan Sessions Judge, dated 23-3-1992. The accused will hereinafter be referred to as ‘the appellant’.

3. The case of the prosecution is that there is a co-operative society of tappers in Mudunur village. The appellant and one Raghavulu were among its 14 members and the deceased was the President of the said society. The appellant is a close relative of the deceased. The said Raghavulu left the village for eking out his livelihood in Hyderabad city and thus stopped tapping. According to the Bye-laws of the society, if any of the members stops tapping of palmyrah trees, the other members have to share the trees. But the deceased who was the President of the society was tapping the trees of Raghavulu without distributing them among other members. The appellant questioned the deceased about his action in tapping the trees of Raghavulu exclusively on 1-4-1991; but the deceased kicked him and tried to stab him with a knife. On 4-4-1991 at about 4.30 p.m. when the deceased was about to tap the tree of the said Raghavulu, bearing No. 16/23/24, which was situated on irrigation channel bund near the field of Kolli Ramakrishna Rao of Mudunuru village, the appellant objected to the tapping of the trees. That resulted in a quarrel between them. The appellant gave a blow with a “Tunagala Karra” on the head of the deceased. He became unconscious and fell down. Then the appellant severed the head of the deceased from the trunk with a tapper’s knife (M.O. 20) and carried it with him on a cycle to the village. Near his house the appellant feel down where he placed the head of the deceased. He left the cycle after locking it there, proceeded to P.S. Vuyyur and reported the matter to the Inspector of Police (P.W. 14) who was camping at P.S. Vuyyur. He surrendered himself along with blood-stained knife (M.O. 20), P.W. 14 recorded the report Ex. P.21 and sent a copy of the F.I.R. to the Magistrate P.W. 14 conducted one inquest at the place where the trunk of the deceased was lying and examined P.Ws. 1, 2, 4 and 6. P.W. 8 is the inquest Panchayatdar. Ex. P4 is the inquest report in respect of the trunk of the deceased. He also conducted another inquest at the place where the head of the deceased was lying and examined P.Ws. 2, 4, 5 and 7. Ex. P3 is the inquest report in respect of head of the deceased. P.W. 14 sent the head and the trunk of the deceased for post-mortem to P.W. 9, the Assistant Professor, Forensic Medicine, Sidhartha Medical College. P.W. 9 conducted autopsy over the body of the deceased and issued the post mortem certificate Ex. P.7. After completing investigation, P.W. 14 filed the charge-sheet.

4. The plea of the appellant was one of denial.

5. The prosecution examined P.Ws. 1 to 14 and marked Exs. P.1 to P. 14. M.Os. 1 to 20 were also marked. No witness was examined for defence. However Ex. D.1 was marked in the statement of P.W. 6 recorded under section 161, Cr.P.C.

6. The learned Sessions Judge relied on the evidence of P.Ws. 2, 3 and 6 and the medical evidence, i.e., the evidence of P.W. 9 and the post-mortem certificate Ex. P.7, and the conduct of the appellant and found him guilty under section 302, I.P.C., for committing the murder of the deceased. After questioning the appellant under section 235(2), Cr.P.C. he sentenced him to death.

7. Sri T. Bali Reddy, the learned counsel for the appellant, submits that there were no eye witnesses to the occurrence and the evidence on record is not sufficient to establish the guilt of the accused and the conviction is not based on any legal evidence.

8. The learned Public Prosecutor, on the other hand, contends that the evidence produced by the prosecution is unimpeachable, there are sufficient circumstances which point to the guilt of the appellant and, therefore, the conviction recorded is unassailable.

9. It is true that there are no eye-witnesses to the occurrence. The evidence is circumstantial. P.Ws. 2, 3 and 6 are material witnesses. P.W. 2 is the resident of the same village. She is an agricultural cooly and knows both the appellant as well as the deceased. She says that when she was cutting grass on the day of Srirama Navami, the elder brother of the appellant came and stated to the appellant (matter in vernacular omitted.) Hearing this, she raised her head and saw the accused carrying the head of the deceased in his hand. In cross examination she states that the brother of the accused uttered the above mentioned words from the place where the accused was found. She identified the accused. Nothing was elicited in her cross-examination to discredit her testimony. P.W. 3 is also a resident of the same village. She says that while she was preparing ‘Kallam’ in her field which is by the side of the land of Kolli Ramakrishna Rao, she heard the voice of the deceased. Thinking that he was scolding somebody, she proceeded to the irrigation ‘Bode’ for taking water and heard the cry “(matter in vernacular omitted.)”. There she saw the appellant carrying away the head of the deceased. He was going towards the mango trees on the way which leads to the village. She is an educated lady, having studied P.U.C. in Visakhapatnam. The only criticism against this witness is that she saw the accused from behind; but she was emphatic that she recognised the accused though she saw him from behind. We do not see any reason to disbelieve her. As she is also a resident of the same village, it is not difficult for her to recognise the accused from behind.

10. Here we may also refer to the evidence of P.W. 4 who is the wife of the deceased. She says that the appellant and the deceased beat each other and the elders separated them. This is incident of 1-4-1991. She also says that appellant stated that he would kill her husband. That on Srirama Navami day at 4 p.m., the deceased went out of the house for tapping trees and that at about 5 p.m., she came to know that the appellant brought the head of deceased and kept at his (appellant’s) house; she saw the head of the deceased near the threshold of the appellant’s house and from there she went to the field of Kolli Krishnayya where the palmyrah tree was situated on a mound and she found the trunk of the deceased near the palmyrah tree. She identified M.Os. 1 to 7 as belonging to the deceased.

11. P.W. is a neighbour of the accused-appellant. Her house is 4 or 5 houses away from the house of the appellant, on the other side of the road. She says that she saw the accused carrying the head of the deceased in his hand and that having identified the head of the deceased she became unconscious and fell down. Nothing is pointed out to us in the evidence of this witness to disbelieve her testimony.

12. From the evidence discussed above, the following facts emanate.

The deceased went to tap the palmyrah tree near the field of Kolli Krishnayya; the appellant was found there and his brother accosted him saying that he brought disrepute to the family by committing this ghastly act; immediately thereafter the appellant was found carrying the head of the deceased from the palmyrah tree near the field of Kolli Krishnayya where the trunk of the deceased was lying; he carried to his house the head of the deceased and kept it there; the appellant himself went to the police station, Vuyyuru and gave the report Ex. P.21 and surrendered himself and M.O. 20 among other articles which is a strong circumstance against him.

13. Ex. P.21 contains the statement of the appellant to P.W. 14 a part of which is inculpatory and the other part exculpatory. The statement contained therein refers to the fact that there was a dispute with regard to the distribution of palmyra trees of Raghavulu after he left the village, that on 1-4-1991 the deceased and the appellant had a quarrel and that on 4-4-1991 while the deceased was tapping a tree on the irrigation channel bund near the field of Kolli Ramakrishna Rao, the appellant was threatened by a knife by the deceased. It is contended by the learned Public Prosecutor that these facts are admissions by the appellants and are corroborated by the evidence of P.Ws. 2 and 3; therefore, they are admissible in evidence and can be proved against the appellant.

14. Ex P. 21 is the first information report given by the accused-appellant to P.W. 14. It can be divided into four parts. The first part deals with his identity. The second part contains admissions. The third contains confession. The fourth part deals with surrender of the appellant and blood-stained tapper’s knife, carrying notes, blood-stained sleevesless banian.

15. The evidence of conduct of the appellant in going to the police station immediately after the incident and giving report is admissible under section 8 of the Evidence Act. This position is not disputed. So also there is no dispute that inculpatory statement of the accused contained in Ex. P.21 is inadmissible as being hit by Section 25 of the Evidence Act. The debate is about admissibility of admissions of increminating facts in Ex. P.21. The learned public Prosecutor contends that as the admissions made by the accused in Ex. P.21 are severable and therefore that part of the statement is admissible against the accused. Sri Bali Reddy, on the other hand, contends that they are also confessions so inadmissible. It needs no mention that the first information report in cognizable cases is recorded under Section 154, Cr.P.C., by officer in charge of a police station and that it is not substantive evidence. However, it may be used to corroborate or contradict the informant under Section 157 or 145 of the Evidence Act, as the case may be. Confession is a species of admission. Confession is defined by the Supreme Court as admission of the offence by a person charged with the offence in A. Nagesia v. Bihar State, AIR 1966 SC 119 : 1966 Cri LJ 100. It will be useful to bear in mind the following observations of Lord Aktin in Pakala Narayanaswami v. Emperor, AIR 1939 PC 47 : (1939) 40 Cri LJ 364 :

“…. a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession ……..”

16. A first information report given by an accused is admissible at the trial unless it contains confession of the accused. A first information report containing admission of the accused is admissible in evidence at the trial (see Fidda v. State of M.P., AIR 1964 SC 1850 : (1964 (2) Cri LJ 744). When the first information report given by an accused contains statement both exculpatory and inculpatory, the contention that the portion of the statement excluding culpatory portion is admissible, cannot be accepted as the test of severability is not approved by the Supreme Court in A. Nagia v. Bihar State, (1st supra). Their Lordships observed at page 104 of Cri LJ :

“Now, a confession may consist of several parts and may reveal not only the actual commission of the crime but also the motive, the preparation, the opportunity, the provocation, the weapons used, the intention, the concealment of the weapon and the subsequent conduct of the accused. If the confession is tainted, the taint attaches to each part of it. It is not permissible in law to separate one part and to admit it in evidence as a non-confessional statement. Each part discloses some incriminating fact, i.e., some fact which by itself or along with other admitted or proved facts suggests the inference that the accused committed the crime, and though each part taken single may not amount to a confession, each of them being part of a confessional statement partakes of the character of a confession. If a statement contains an admission of an offence not only that admission but also, even other admission of an incriminating fact contained in the Statement is part of the confession”.

It was held :

“We think that the separability test is misleading, and the entire confessional statement is hit by S. 25 and save and except as provided by S. 27 and save and except the formal part identifying the accused as the maker of the report, no part of it could be tendered in evidence”.

17. In the instant case Ex. P.21 contains confessional statement as well as admission of incriminating facts. Therefore the second part, as stated above, which contains admission is not admissible in evidence. Therefore, the said report Ex. P.21 cannot be looked into for purposes of establishing the guilt of the accused. But, as stated above, the conduct of the appellant in going to the police station and surrendering himself and other material objects including M.O. 20, is a strong circumstances against him.

18. Here we may read the evidence of the medical officer (P.W. 9) who on post-mortem examination of the deceased, found the following injuries :-

1) Decapitation injury. The head and neck are completely severed from the trunk at the level of the root of the neck. The edges or the wound are clean cut with sub-cuticular bruising. Blood clots are present in the wound. All the soft tissues structures, the blood vessels and the trachea are cleancut.

2) Abrasion 7 cms x 4 cms left side of face, dark brown, no scab formation.

3) Abrasion, 5 cms x 3 cms on the right side of the face, dark brown, no scab formation.

4) Laceration of scalp measuring 5 cms x 2 cms x bonedeep, over left parietal eminence, edges contused, linear in shape, long axis in sagittal plave. Dull red in colour.

5) Fissure fracture of skull commencing at left parietal eminence corresponding to injury No. 4, running obliquely forwards and to the right up to the bregma and then along the coronal suture on right side causing its separation extending to the lower limit of coronal suture. The total length of the fracture is 18 cms. The fracture is lined with blood.

6) Diffuse subdural and subarachnoid haemorrhage over both sides of brain.

7) Contusion of brain over left parietal region, corresponding to injury No. 4 measuring 6 cms x 4 cms.

The above injuries are stated to be ante-mortem in nature.

19. The evidence of P.W. 9 and Ex. P.9 corroborates the evidence of P.Ws. 2, 3 and 6. The circumstantial evidence referred to above, in our view, conclusively establishes the guilt of the appellant and is inconsistent with any other hypothesis of innocence of the appellant. For these reasons, we confirm the conviction of the appellant for the offence charged by the learned Metropolitan Sessions Judge, Vijayawada.

20. Now coming to the question of sentence, Sri Bali Reddy, the learned counsel for the appellant, strenuously contends that the learned Sessions Judge has gravely erred in awarding death sentence to the accused; under the Code of Criminal Procedure, 1973 awarding a death sentence is an exception, the normal rule is to award life imprisonment; the legislature has taken care to see that where death sentence is awarded special reasons should be given and in the instant case the learned Sessions Judge has not given any special reasons for awarding death sentence, therefore, the punishment has to be altered to life imprisonment.

21. The learned Public Prosecutor contends that this is one of those rarest of rare cases where the death sentence has rightly been awarded; the appellant committed a gruesome act of severing the head of the deceased while he was still alive, carried the head to the village on his cycle; this is a barbarous act so the sentence of death was, therefore, rightly awarded.

22. Section 302, I.P.C., provides punishment for murder. It reads :

“302. Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine”.

The minimum punishment is imprisonment for life and the maximum punishment is death. It is for the Court in its judicial discretion to award the sentence, having regard to the circumstances of the case, to meet the ends of justice.

23. In Bachan Singh v. State of Punjab, AIR 1980 SC 898 : 1980 Cri LJ 636, the Constitution Bench of the Supreme Court after referring to Sections 354(3) and 235(2) of the Code of Criminal Procedure, quoted the following two principles :-

“1) The extreme penalty can be inflicted only in gravest cases of extreme culpability;

2) In making choice of the sentence, in addition to the circumstances of the offence, due regard must be paid to the circumstances of the offender also”.

The Supreme Court also noted the aggravating circumstances as preplanned, calculated, cold-blooded murder. If a murder is “diabolically conceived and cruelly executed”, it would justify the imposition of the death penalty. The weapons used and the manner of their use, the horrendous features of the crime and hapless, helpless state of the victim, and the like steel the heart of the law for a sterner sentence. The Supreme Court further laid down that for making the choice of punishment or for ascertaining the existence or absence of “special reasons” in that context, the Court must pay due regard both to the crime and the criminal. It further observed that the relative weight to be given to the aggravating and mitigating factors depends on the facts and circumstances of the particular case. Having noted that in a sense, to kill is to be cruel and therefore all murders are cruel, the Supreme Court observed that 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. In Machhi Singh v. State of Punjab, AIR 1983 SC 957 : 1983 Cri LJ 1457, the Supreme Court observed that the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability; life imprisonment is the rule and death sentence is an exception and the death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. It was further observed that a balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so, the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. The Supreme Court further observed that in applying the guidelines the questions to be asked and answered are :

“(1) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence ?

(2) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender ?”

The Supreme Court also observed :

“If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the Court would proceed to do so.”

25. In Allauddin Mian v. State of Bihar, AIR 1989 SC 1456 : 1989 Cri LJ 1466, the Supreme Court found the appellants guilty of committing the murder of infant daughters of the proposed victim; and having observed that the killing was not for gain and that the mere fat of killing of infants does not prove the case within the category of rarest of rare cases, it altered the punishment to one of life imprisonment.

26. From the above discussion, the position that emerges is that the Court will have to make a choice of the punishment to be awarded to the person found guilty of the murder after taking into consideration the aggravating and the mitigating circumstances. The rule is that punishment for murder should be life imprisonment unless there are special circumstances justifying awarding of maximum punishment of death. In making the choice the Court should take into consideration not only the circumstances relating to the crime, but also to the offender and it is only in the rarest of rare cases that the maximum punishment of death may be awarded.

27. The learned Sessions Judge recorded the special reasons under Section 354(3), Cr.P.C. as follows :-

“The accused had intentionally caused the death of the deceased in the first instance by inflicting a head injury with ‘Tunagalakarra’ and when he (deceased) fell unconscious, he (the accused) severed the head with the knife mercilessly and carried the head of the deceased with his hand to the village proclaiming that he killed him and threw the head in front of his house. The act of the accused is a brutal and inhuman fashion. It was most reprehensible and heinous crime which disclosed brutality and callousness to human life”.

The following mitigating circumstances were taken into consideration, viz., that the appellant has a wife and two children. The learned Sessions Judge referred to the judgment of the Supreme Court in S. P. Sharma v. State of Madhya Pradesh, AIR 1977 SC 2423 and arrived at the conclusion that in the presence of such mitigating circumstances the accused in that case was awarded punishment of death; he, therefore, awarded the punishment of death. In our view, the special reasons given by the learned Sessions Judge do not bring the case within the rule of “rarest of the rare cases”. There cannot be any doubt that the offence committed by the appellant is reprehensible and heinous. It cannot also be disputed that carrying the head of the deceased was a brutal act. But as against this, the mitigating circumstances are :

(i) that the appellant who is an illiterate tapper, who was eking out his livelihood by tapping, found that he is being deprived of the legitimate right by the President of the Society on account of the position he was occupying;

(ii) that the action of the deceased was responsible for provocation; and

(iii) that the act was not premediated and it appears from a perusal of Ex. P.21 that when the appellant questioned the deceased of the act of tapping the tree which ought to have fallen to the members, he threatened him (the appellant) with a knife.

Taking the stock of both the aggravating as well as the mitigating circumstances, we have no doubt that the appellant committed one of the rare acts, but we are unable to say that it is the rarest of the rare cases. For this reason, we are unable to confirm the sentence of death awarded by the trial Court to the appellant and after the same to one of imprisonment for life.

28. The appeal is allowed in part in regard to the sentence. The reference is disposed of accordingly.

Appeal partly allowed.