1. The conviction of the Appellant under Sections 302/201 of the Indian Penal Code, 1860 (for short, the IPC) passed by the learned Additional Sessions Judge, Nayagarh vide judgment dated 29.06.2017 in S.T. Case No.76/115 of 2015/2014 having been confirmed by us by our judgment dated 26.06.2023, the present order is on the question of appropriate sentence to be imposed on her.
Be it noted that the Convict-Appellant having been convicted as aforesaid was sentenced to undergo imprisonment for life and pay a fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for one month for the offence under Section 302 of IPC and to undergo rigorous imprisonment for six years and to pay a fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for one month under Section 201 of IPC with further direction that the sentences shall run concurrently.
After hearing the appeal preferred by the Convict- Appellant, we did not find any infirmity much less illegality in the judgment of conviction and therefore, confirmed the same. However, as regards the sentence, we were not persuaded to take the view that the sentence so imposed by the trial Court was adequate. Therefore, despite the fact that the State had not preferred any appeal for enhancement of the sentence, having regard to the settled position of law as reflected in the judgments of the Apex Court viz., Sahab Singh and others vs. State of Haryana, reported in (1990) 2 SCC 385 and Swamy Shraddananda (2) v. State of Karnataka, reported in (2008) 13 SCC 767, we deemed it proper to exercise the revisional power under Section 397 read with Section 401 of Cr.P.C. and called upon the convict to have her say on the adequacy of sentence and as to why she should not be visited with the sentence of higher degree. As such, we issued notice to the convict-Appellant through her lawyer as also separately through the Superintendent of District Jail, Nayagarh. We also called upon the Superintendent of District Jail, Nayagarh to submit a report as to the conduct of the Appellant during the period of her incarceration. Pursuant to such notice, the convict-Appellant has submitted her submission in writing through the Superintendent. The Superintendent has also submitted the report regarding the conduct of the Appellant while in jail.
2. We heard Mr. Sahasransu Sourav, learned Counsel appointed as Amicus Curiae since none appeared on behalf of the Appellant when the matter after service of notice was listed for hearing on enhancement of sentence upon the Convict-Appellant. Mr. S.K. Nayak, learned Additional Government Advocate for the State also advanced the submission.
We heard them at length.
3. Before adverting to the contentions raised before us by learned counsel for the parties we deem it proper to keep in perspective the principle of law relating to adequacy of punishment. It is trite that imposition of appropriate punishment is sine qua non being the logical conclusion of a criminal trial. At this juncture we profitably refer to the following observations of the Apex Court rendered in the case of Ravji v. State of Rajasthan, reported in (1996) 2 SCC 175; which runs as under:-
“xxxxxxx The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the society's cry for justice against the criminal” xxxxxxx”
In the instant case, after looking into the very nature of the crime and the manner it was committed and attempted to be kept buried; we entertained doubts as to if the punishment of imprisonment for life simpliciter would commensurate the offence as found to have been committed by the Convict-Appellant. Since the offence of murder can be visited with capital punishment, we felt proper to first focus our attention as to if the facts of the present case call for the punishment of higher degree. For this, we feel it necessary to advert to the facts and circumstances as made out from the evidence on record in constituting the offence.
4. The prosecution case is that on 27.03.2014, Monalisha Mohapatra (P.W.6) was informed by her mother Ratani Sahoo (P.W.4) over telephone that one and half year son of Monalisha, namely, Guddu @ Rabi Narayan Mohapatra, who was under the care and custody of Bartani Sahu (P.W.4) in her house at village Kodia Kahania under Sarankula Police Station was missing. Said Monalisha (P.W.6) the mother of Guddu @ Rabinarayan was then leaving at Bhubaneswar. It was also told by Bartania (P.W.4) that after having searched Guddu@ Rabinarayan, by then no clue had been found out. Receiving such news, Monalisha (P.W.6) came to the village and informed the police regarding the missing of her son Guddu.
On 28.03.2014, it was around 7 am, the family members of Monalisha (P.W.6) saw that the convict-Appellant was carrying a silver dekchi (container of wider girth and mouth being of lesser diameter). They somehow entertain suspension over such movement of the convict-Appellant. On search of that dekchi, the dead body of Gudu @ Rabinarayan was found to have been kept inside. The co-villagers and other relatives of Monalosha then apprehended the convict-Appellant and the matter was informed to the Inspector-in-Charge (IIC) of Sarankula Police Station in writing. The IIC immediately went to the spot. He collected the beheaded body of Gudu @ Rabinarayan without left hand from inside that dekchi. In course of investigation, the convict-Appellant took the police and other witnesses to the village pond and showed the area where the cut head of Guddu covered with a piece of polythene had been thrown. The severed left hand of Guddu recovered at the instance of the accused from her house and it had been kept in a gunny bag being covered by a green napkin. The written report of Monalisha (P.W.6) being treated as FIR that has set the criminal law into motion.
Upon examination and analysis of the evidence let in by the prosecution, we have held the same to be sufficient to fasten the guilt of the convict-Appellant for commission of offence under section 302/201 of the IPC. Accordingly, we have confirmed the finding of guilt against the convict-Appellant as has been returned by the trial court in saying that the same is based on rock solid evidence and thus does not warrant interference.
5. It is evident that the Appellant-convict was actuated with the uncanny desire of doing away with the life of Guddu @ Rabinrayan, a boy of only one and half year old. The brutality of the act is evident from the fact that the head of the boy being separated from the trunk as also the left hand; the body had been kept in one silver container of wider girth and mouth being of lesser radius, known as ‘dekchi’. The left hand of the boy had been separately kept in a gunny bag covered by a green colour napkin and the cut head of the boy being covered with a polythene had been thrown in a tank. The above detached left arm and the head of the boy were recovered at the instance of the Convict-Appellant and the beheaded body without the left arm was found in that dekchi. This very act shows extreme cruelty, dastardly act and an uncontrolled desire to kill the boy of one and half year old against whom none can at all bear any grudge for any reason whatsoever.
6. Killing a human being can be by several means, all of which may or may not amount to murder. Even in case of a murder, the means adopted by the assailant can be different. But here its a killing of a boy of only one and half year old who can be the enemy of none. The means adopted would certainly throw light on the dominant thought process of the assailant at the relevant time and the manner as well as the means adopted to see that everything is given a quiet and decent burial. In the case at hand, from evidence, which we have found to be clear, consistent and trustworthy, it is apparent that the Convict-Appellant not only had the intention of killing the deceased boy but also to do so in the most brutal and gruesome manner possible followed by the acts in order to get rid of the complicity. Nothing else can possibly explain the act of severing the head and hand; keeping the body in a container and throwing the head in a pond as also keeping the detached hand in the house to be later on dealt with in throwing somewhere in a deserted place or keeping in any other place which so that the same would not invite the attention of anyone.
Looked at from any angle, the act is not simply brutal, but extremely grotesque and diabolical in nature. The degree of brutality and depravity of the assailant is enhanced manifold when one considers the fact that the act was committed in respect of and against a boy of only one and half year old. What a traumatic experience it would have been for the mother (P.W.6) and grandmother (P.W.4) of that boy besides others, not only at that very moment when they saw but also for the rest of their life can only be imagined. The act was enough to shock our judicial conscience leading us to believe that the punishment for imprisonment for life simpliciter would hardly be adequate or proportionate. We hold so because, though it has been held that imprisonment for life is meant to be imprisonment for the duration of the natural life yet by operation of law (Section 433 of Cr.P.C.), the convicts would be eligible to claim remission of the remaining part of their sentence after spending only 14 years or so in prison. In such event, the punishment of imprisonment for life would be curtailed to a period of 14 years or a little more than that. After giving our thoughtful and anxious consideration, we are firmly of the view that it would not only be disproportionate viz-a-viz the enormity of the crime but also be hardly any recompense for the victims as well as the society for bearing with such dastardly acts.
7. The question now posed before us is whether death penalty should be imposed on the Convict-Appellant.
8. The law relating to imposition of death penalty has been laid down in several judgments of the Apex Court including Jagmohan Singh v. State of U.P., reported in (1973) 1 SCC 20. In the celebrated judgment delivered by the Constitution Bench in the case of Bachan Singh v. State of Punjab, reported in (1980) 2 SCC 684 while upholding the constitutionality of the death penalty, the Court recast the observations of Jagmohan Singh (supra) in the following manner.
“164. Attuned to the legislative policy delineated in Sections 354(3) and 235(2), propositions (iv)(a) and (v)(b) in Jagmohan [(1973) 1 SCC 20 : 1973 SCC (Cri) 169 : (1973) 2 SCR 541] shall have to be recast and may be stated as below:
“(a) The normal rule is that the offence of murder shall be punished with the sentence of life imprisonment. The court can depart from that rule and impose the sentence of death only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing the death sentence.
(b) While considering the question of sentence to be imposed for the offence of murder under Section 302 of the Penal Code, the court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the court may impose the death sentence.”
It is also held that death penalty must be inflicted only in rarest of rare cases. The above principle was further delineated in another Constitution Bench judgment in the case of Machhi Singh v. State of Punjab, reported in (1983) 3 SCC 470. The following observations of the Court would be relevant.
“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 very existence of the rule of law and the fear of being brought to book operates as a deterrent for 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, such as for instance:
I. Manner of commission of murder
33. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance,
(i) when the house of the victim is set aflame with the end in view to roast him alive in the house.
(ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.
(iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.
II. Motive for commission of murder
34. When the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust, or (c) a murder is committed in the course for betrayal of the motherland.
III. Anti-social or socially abhorrent nature of the crime
35. (a) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance.
36. When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
V. Personality of victim of murder
37. When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.
38. In this background the guidelines indicated in Bachan Singh case [(1980) 2 SCC 684 : 1980 SCC (Cri) 580 : AIR 1980 SC 898 : 1980 Cri LJ 636] will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh case [(1980) 2 SCC 684 : 1980 SCC (Cri) 580 : AIR 1980 SC 898 : 1980 Cri LJ 636] :
“(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words 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.
(iv) 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.
39. In order to apply these guidelines inter alia the following questions may be asked and answered:
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence
(b) 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
40. 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.”
9. In a case of murder of a young girl of about 18 years in Dhananjoy Chatterjee v. State of West Bengal; (1994) 2 SCC 220, the court took note of the fact that the accused was a married man of 27 years of age, the principles stated in Bachan Singh’s case and further took note of the rise of violent crimes against women in recent years and, thereafter, on consideration of the aggravating factors and mitigating circumstances, opined that:
“15. In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.
10. The Court then took note of the fact that the deceased was a school-going girl and it was the sacred duty of the Appellant, being a security guard, to ensure the safety of the inhabitants of the flats in the apartment but to gratify his list, he had raped and murdered the girl in retaliation which made the crime more heinous. It was also considered that on many occasions the victim had been teased by Dhananjoy on her way back from her school and the latest was three days before and that Dhananjoy’s all these actions being complained of, the employer was arranging for his transfer and thus there was a motive and sense of revenge in his mind. Appreciating the manner in which the barbaric crime was committed on a helpless and defenceless School-going girl of 18 years, the Court came to hold that the case fell in the category of rarest of the rare cases and, accordingly, affirmed the capital punishment imposed by the High Court.
11. In fact in case of ‘Rameshbhai Chandubhai Rathod v. State of Gujarat;(2009) 5 SCC 740 which was a case of rape and/or murder of girl of tender age, a student of IV standard in the school by the Appellant employed as a watchman in the Apartment who was married having wife and children, their Lordships agreed for the conviction to sustain. The difference of opinion arose on the question of sentence; when the Hon’ble Judge, presiding the Bench confirmed the death sentence, the other Hon’ble Judge held that life sentence be given. The appeal in view of difference of opinion on the imposition of sentence had been referred to a three judges Bench. The decision as reported in (2011) 2 SCC, 764 has been that the case was not in the category of ‘rarest of rare’ cases. Accordingly, the death sentence being commuted to life, it was however directed that the life sentence must extend to the full life of the Appellant but subject to any remission or commutation at the instance of the Government for good and sufficient reason.
12. In Laxman Naik v. state of Orissa, 1994 SCC (Cri) 656, the judgment begins as under:-
“1. The present case before us reveals a sordid story which took place sometime in the afternoon of February 17, 1990, in which the alleged sexual assault followed by brutal and merciless murder by the dastardly and monstrous act of abhorrent nature is said to have been committed by the Appellant herein who is none else but an agnate and paternal uncle of the deceased victim Nitma, a girl of the tender age of 7 years who fell a prey to his lust which sends shocking waves not only to the judicial conscience but to everyone having slightest sense of human values and particularly to the blood relations and the society at large.
13. In Laxman Naik case, the High Court had dismissed the Appellant’s appeal and confirmed the death sentence awarded to him. While discussing as regards the justifiability of the sentence, the Court referred to the decision in Bachan Singh’s case and opined that there were absolutely no mitigating circumstances and, on the contrary, the facts of the case disclosed only aggravating circumstances against the Appellant. Proceeding further, the Court held thus:-
“The hard facts of the present case are that the Appellant Laxman is the uncle of the deceased and almost occupied the status and position that of a guardian. Consequently the victim who was aged about 7 years must have reposed complete confidence in the Appellant and while reposing such faith and confidence in the Appellant must have believed in his bona fides and it was on account of such a faith and belief that she acted upon the command of the Appellant in accompanying him under the impression that she was being taken to her village unmindful of the preplanned unholy designs of the Appellant. The victim was a totally helpless child there being no one to protect her in the desert where she was taken by the Appellant misusing her confidence to fulfill his lust. It appears that the Appellant had preplanned to commit the crime by resorting to diabolical methods and it was with that object that he took the girl to a lonely place to execute his dastardly act.”
14. After so stating, the Court, while affirming the death sentence, opined that:
“28. The victim of the age of Nitma could not have even ever resisted the act with which she was subjected to. The Appellant seems to have acted in a beastly manner as after satisfying his lust he thought that the victim might expose him for the commission of the offence of forcible rape on her to the family members and others, the Appellant with a view to screen 3 (1980) 2 SCC 684: 1980 SCC (Cri) 580 the evidence of his crime also put an end to the life of innocent girl who had seen only seven summers. The evidence on record is indicative of the fact as to how diabolically the Appellant had conceived of his plan and brutally executed it and such a calculated, cold-blooded and brutal murder of a girl of a very tender age after committing rape on her would undoubtedly fall in the category of rarest of the rare cases attracting no punishment other than the capital punishment and consequently we confirm the sentence of death imposed upon the Appellant for the offence under Section 302 of the Penal Code.”
15. In case of Kamta Tiwari v. State of M.P (1996) 6 SCC 250, the Appellant was convicted for the offence punishable under section 363/376/302 and 201 IPC and sentenced to death by the learned trial Judge and the same was affirmed by the High Court. In Appeal, the two-Judge Bench referred to the prepositions culled out in Machhi Singh and expressed thus:-
“8.Taking an overall view of all the facts and circumstances of the instant case in the light of the above propositions we are of the firm opinion that the sentence of death should be maintained. In vain we have searched for mitigating circumstances - but found aggravating circumstances aplenty. The evidence on record clearly establishes that the Appellant was close to the family of Parmeshwar and the deceased and her siblings used to call him 'Tiwari uncle'. Obviously her closeness with the Appellant encouraged her to go to his shop, which was near the saloon where she had gone for a haircut with her father and brother, and ask for some biscuits. The Appellant readily responded to the request by taking her to the nearby grocery shop of Budhsen and handing over a packet of biscuits apparently as a prelude to his sinister design which unfolded in her kidnapping, brutal rape and gruesome murder.- as the numerous injuries on her person testify; and the finale was the dumping of her dead body in a well When an innocent hapless girl of 7 years was subjected to such barbaric treatment by a person who was in a position of her trust his culpability assumes the proportion of extreme depravity and arouses a sense of revulsion in the mind of the common man. In fine, the motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof persuade us to hold that this is a 'rarest of rare cases where the sentence of death is eminently desirable not only to deter others from committing such atrocious crimes but also to give emphatic expression to society's a abhorrence of such crimes.”
34.In Rajendra Pralhadrao Wasnikv. State of Maharashra, (2012) 4 SCC 37, the Appellant was awarded sentence of death by the learned trial judge which was confirmed by the High Court, for he was found guilty of the offences punishable under section 376(2)(f),377 and 302 IPC. In the said case, the prosecution had proven that the Appellant had lured a three-year old minor girl child on the pretext of buying her biscuits and then raped her and eventually, being apprehensive of being identified, killed her. In that context, while dismissing the appeal, the Court ruled thus:-
“37. When the Court draws a balance sheet of the aggravating and mitigating circumstances, for the purpose of determining whether the extreme sentence of death should be imposed upon the accused or not, the scale of justice only tilts against the accused as there is nothing but aggravating circumstances evidence from the record of the Court. In fact, one has to really struggle to find out if there were any mitigating circumstances favouring the accused.
38.Another aspect of the matter is that the minor child was helpless in the cruel hands of the accused. The accused was holding the child in a relationship of “trust-belief” and “confidence”, in which capacity he took the child from the house of P.W.2. In other words, the accused, by his conduct, has belied the human relationship of trust and worthiness’. The accused left the deceased in a badly injured condition in the open fields without even clothes. This reflects the most unfortunate and abusive facet of human conduct, for which the accused has to blame no one else than his own self.”
16. In the recent case of Mukesh V. State (NCT) of Delhi); (2017) 6 SCC 1, the Apex Court taking note of the proven factual; matrix of the horrendous incident found in the case, the brutal, barbaric and diabolic nature of the crime. The Court held:-
“364. It is necessary to state here that in the instant case, the brutal, barbaric and diabolic nature of the crime is evincible from the acts committed by the accused persons, viz., the assault on the informant, PW-1 with iron rod and tearing off his clothes; assaulting the informant and the deceased with hands, kicks and iron rod and robbing them of their personal belongings like debit cards, ring, informant’s shoes, etc.; attacking the deceased by forcibly disrobing her and committing violent sexual assault by all the Appellants; their brutish behaviour in having anal sex with the deceased and forcing her to perform oral sex; injuries on the body of the deceased by way of bite marks (10 in number); and insertion of rod in her private parts that, inter alia, caused perforation of her intestine which caused sepsis and, ultimately, led to her death. The medical history of the prosecutrix (as proved in the record in Ex.PW-50/A and Ex. PW-50) demonstrates that the entire intestine of the prosecutrix was perforated and splayed open due to the repeated insertion of the rod and hands; and the Appellants had pulled out the internal organs of the prosecutrix in the most savage and inhuman manner that caused grave injuries which ultimately annihilated her life. As has been established, the prosecutrix sustained various bite marks which were observed on her face, lips, jaws, near ear, on the right and left breast, left upper arm, right lower limb, right inner groin, right lower thigh, left thigh lateral, left lower anterior and genitals. These acts itself demonstrate the mental perversion and inconceivable brutality as caused by the Appellants. As further proven, they threw the informant and the deceased victim on the road in a cold winter night. After throwing the informant and the deceased victim, the convicts tried to run the bus over them so that there would be no evidence against them. They made all possible efforts in destroying the evidence by, inter alia, washing the bus and burning the clothes of the deceased and after performing the gruesome act, they divided the loot among themselves.
365. As we have narrated the incident that has been corroborated by the medical evidence, oral testimony and the dying declarations, it is absolutely obvious that the accused persons had found an object for enjoyment in her and, as is evident, they were obsessed with the singular purpose sans any feeling to ravish her as they liked, treat her as they felt and, if we allow ourselves to say, the gross sadistic and beastly instinctual pleasures came to the forefront when they, after ravishing her, thought it to be just a matter of routine to throw her alongwith her friend out of the bus and crush them. The casual manner with which she was treated and the devilish manner in which they played with her identity and dignity is humanly inconceivable. It sounds like a story from a different world where humanity has been treated with irreverence. The appetite for sex, the hunger for violence, the position of the empowered and the attitude of perversity, to say the least, are bound to shock the collective conscience which knows not what to do. It is manifest that the wanton lust, the servility to absolutely unchained carnal desire and slavery to the loathsome beastility of passion ruled the mindset of the Appellants to commit a crime which can summon with immediacy “tsunami” of shock in the mind of the collective and destroy the civilized marrows of the milieu in entirety.
17. Having said so, the Court arrived at a singular conclusion that the mitigating circumstances highlighted which pertain to the strata to which they belong, the aged parents, marital status and the young children and the suffering they would go through and the calamities they would face in case of affirmation of sentence, their conduct while they are in custody and the reformative path they have chosen and their transformation and the possibility of reformation being taken together do not outweigh the aggravating circumstances. In that view of the matter, the death penalty has been confirmed being found to be the only adequate.
18. We shall now proceed to consider the contentions put forth on behalf of the Convict-Appellant in the background of the above discussion on the settled position of law.
19. Mr. Sahasransu Sourav would argue that the present case does not fall within the category of ‘rarest of rare’ warranting capital punishment notwithstanding the brutality of the act committed by the Convict-Appellant. He contended that the fact remains that the mitigating circumstances of the case far outweigh the aggravating circumstances; moreover, the Convict-Appellant has also suffered incarceration for more than ten years and her conduct has been such during this period as would suggest a strong possibility of her rehabilitation and reformation posing no threat to the society. He would further argue that the Convict-Appellant was having no personal gain in mind while committing the act.
20. Per contra, Mr. S.K. Nayak would argue that the very fact that the deceased boy of one and half year was murdered by Convict-Appellant in a cold blooded and brutal manner and all the attempts were made to see that nothing gets unearthed clearly exposes the acts to be dastardly which in a civilised society like ours is unheard of and even cannot appear in dreams. He would further argue that the fact that the manner in which the crime was committed i.e. beheading of the body of one and half year old and detaching his left arm and carrying head to some distance and then throwing it in the pond and keeping the detached hand separately to be disposed of later reflect extreme cruelty and depravity of the mind besides an utter disregard for life of a boy who was wholly dependent for all the time. He, therefore contended that the extreme penalty alone shall be just punishment in the facts and circumstances of the case.
21. We have taken note of the rival contentions and have carefully applied our judicial mind to the facts and circumstances of the case.
22. It has not come out in the evidence as to what was the reason for Convict-Appellant harbouring grudge against the deceased boy or his mother or grandmother. The plea taken by the Convict-Appellant is that the grandmother of the boy (P.W.4) and others had the plan to kill the boy and they having done so have falsely implicated the Convict-Appellant which has received not even any remote support from the evidence.
23. In the case of Dilip Premnarayan Tiwari vs. State of Maharashtra, reported in AIR 2010 SC 361 the Apex Court observed as follows:
“In a death sentence matter, it is not only the nature of the crime but the background of the criminal, his psychology, his social conditions and his mindset for committing the offence are also relevant.”
24. The Convict-Appellant in her written statement through the Superintendent of District Jail has reiterated that she has been falsely implicated and has been the victim of a plot hatched by some persons and thus lenient view be taken. The Superintendent has reported that the Convict-Appellant has been leading normal life and maintaining discipline. All these do not fore close the possibility of the Convict-Appellant being reformed and rehabilitated.
25. These are all the mitigating circumstances, which according to us, however outweigh the aggravating circumstances of the case which we have referred to earlier paragraph-8. As such, we are unable to persuade ourselves to treat the case as “rarest of rare” so as to inflict death penalty on the Appellants.
26. What then should be adequate punishment
27. In the case of Viran Gyanlal Rajput v. State of Maharashtra, reported in (2019) 2 SCC 311, the Apex Court held as follows:
“26. Thus, neither the circumstances of the crime nor the circumstances of the criminal i.e. the Appellant, would go to show that the instant matter falls into the category of the rarest of rare cases, or that the sentence of life imprisonment is unquestionably foreclosed and grossly disproportionate. Therefore, in the totality of the facts and circumstances of this case, we find it fit to commute the death sentence of the Appellant to life imprisonment.
27. At the same time, we are of the opinion that a sentence of life imprisonment simpliciter would not be proportionate to the gravity of the offence committed, and would not meet the need to respond to crimes against women and children in the most stringent manner possible. Moreover, though we have noticed above that the possibility of reform of the accused is not completely precluded, we nevertheless share the concerns of the trial court and the High Court regarding the lack of remorse on behalf of the Appellant and the possibility of reoffending. In such a situation, we deem it fit to restrict the right of the Appellant to claim remission in his sentence of life imprisonment for a period of 20 years.”
Similar view was taken in Babasaheb Maruti Kamble v. State of Maharashtra, reported in (2019) 13 SCC 640. The Apex Court in paragraph-6 has held as follows:
“6. Reverting to the issue of death penalty, the learned Senior Counsel submitted that the case did not fall under the category of the rarest of rare cases and, therefore, the capital punishment was not a desirable punishment in the instant case. We have given our serious thoughts on this aspect. After examining the matter at length, we are of the opinion that the instant case would not fall in the category of the rarest of rare cases and it would be in the interest of justice if the death sentence is commuted into life imprisonment. At the same time, we are also of the opinion that life sentence should be with a cap of 20 years' rigorous imprisonment (RI) which would mean that the Appellant shall not be entitled to make any representation for remission till he completes 20 years of RI. It is more so, keeping in view the age of the Appellant who is at present more than 60 years of age, and has no history of any other criminal activity, possibility of reform, as the learned counsel for the respondent State could not point out blameworthy conduct depicted by him in jail.”
In the case of Mohd. Firoz v. State of M.P., reported in (2022) 7 SCC 443, the Apex Court held as follows:
“60. Considering the above, we, while affirming the view taken by the courts below with regard to the conviction of the Appellant for the offences charged against him, deem it proper to commute, and accordingly commute the sentence of death for the sentence of imprisonment for life, for the offence punishable under Section 302IPC. Since, Section 376-AIPC is also applicable to the facts of the case, considering the gravity and seriousness of the offence, the sentence of imprisonment for the remainder of the Appellant's natural life would have been an appropriate sentence, however, we are reminded of what Oscar Wilde has said — “The only difference between the saint and the sinner is that every saint has a past and every sinner has a future”.
61. One of the basic principles of restorative justice as developed by this Court over the years, also is to give an opportunity to the offender to repair the damage caused, and to become a socially useful individual, when he is released from the jail. The maximum punishment prescribed may not always be the determinative factor for repairing the crippled psyche of the offender. Hence, while balancing the scales of retributive justice and restorative justice, we deem it appropriate to impose upon the Appellant-accused, the sentence of imprisonment for a period of twenty years instead of imprisonment for the remainder of his natural life for the offence under Section 376-AIPC. The conviction and sentence recorded by the courts below for the other offences under IPC and the POCSO Act are affirmed. It is needless to say that all the punishments imposed shall run concurrently.”
28. Thus, from a conspectus of the analysis of facts of the case and the law on the subject we hold that despite the abominable and diabolical nature of the crime committed by the Appellants, the case would not fall under the category of rarest of rare so as to inflict the death penalty on the Appellant. However, life imprisonment simpliciter, according to us would also not commensurate the crime as in effect, it may be restricted to only 14 years, which in our considered view would hardly be the adequate punishment in the case in hand. The observations of the Apex Court in the case of Swamy Shraddananda (supra) are highly relevant in the context:
"92. xxxxxxxxxxx. If the Court's option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the Court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court i.e. the vast hiatus between 14 years' imprisonment and death. It needs to be emphasised that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years' imprisonment would amount to no punishment at all."
29. In the facts and circumstances of the case, we are led to adopt the same reasoning. We therefore, hold that the sentence of imprisonment for life with a cap of 20 years for the case being tabled for remission before the State Sentence Review Board and further onward action would meet the ends of justice.
30. In the result, the order of sentence passed by the Trial Court is hereby modified and the Convict-Appellant is sentenced to imprisonment for life with the rider that she shall not be eligible to claim remission as per law before undergoing a minimum of 20 years of imprisonment.
