N. Kotiswar Singh, J.

1. Heard Mr. Z. Kamar, learned Senior counsel as well as amicus curiae in Death Sentence Ref. No. 1/2018 and Mr. D. Das, learned Additional Public Prosecutor, Assam, appearing for the State. Also heard Mr. P.K. Munir, learned amicus curiae in Crl.A.(J) No. 72/2018; Ms. S. Kanungoe, learned amicus curiae in Crl.A.(J) No. 71/2018 and Mr. A.K. Bhuyan, learned counsel for the appellant in Crl.A. No. 322/2019.

2. Death Sentence Ref. No. 1/2018 was heard along with other appeals, Crl.A.(J) 71/2018, Crl.A.(J)72/2018 and Crl.A. 322/2019 which are being disposed of separately and judgments will be announced shortly.

3. Vide judgment dated 24.07.2018 and order on quantum of sentence dated 01.08.2018 passed by the learned Additional District & Sessions Judge, FTC, Hojai, Sankardev Nagar, in Sessions Case No. 70(N)/2017, the accused Moinul Haque @ Monu was convicted and awarded death sentence for commission of offences punishable under Section 302/376A of IPC.

4. As far as the death reference is concerned, even by holding that the prosecution case has been fully established beyond reasonable doubt, we will proceed to examine as to whether in the facts and circumstances as revealed in course of the trial, on the basis of which accused Moinul Haque @ Monu was convicted and sentenced to death, it would come within the purview of the principles elaborately dealt with in the decision of the Hon'ble Supreme Court in Bachan Singh Vs. State of Punjab, (1980) 2 SCC 684 [LQ/SC/1980/256] and Macchi Singh Vs. State of Punjab, (1983) 3 SCC 470 [LQ/SC/1983/169] .

5. The Hon'ble Supreme Court had the occasion to revisit these principles in a recent decision rendered on 24.06.2022 in Manoj Pratap Singh Vs. State of Rajasthan, (2022) 9 SCC 81 [LQ/SC/2022/782 ;] .

It has been highlighted that while imposing death penalty, certain aspects have to be kept in mind as held by the Hon'ble Supreme Court in Bachan Singh (supra) and Machhi Singh (supra).

In this regard, we may fruitfully refer to the relevant portions of Manoj Pratap Singh (supra) which are reproduced hereinbelow,

"80. The Court also explained the relevant propositions of Bachan Singh Vs. State of Punjab [(1980) 2 SCC 684] [LQ/SC/1980/256] and the pertinent queries for applying those propositions in the following terms:

(Machhi Singh Vs. State of Punjab [(1983) 3 SCC 470] [LQ/SC/1983/169]

"38. In this background the guidelines indicated in Bachan Singh case 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:

(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."

(emphasis supplied)

6. The Hon'ble Supreme Court in Manoj Pratap Singh (supra) also dealt with various circumstances which are to be kept in mind as observed in Shankar Kishanrao Khade Vs. State of Maharashtra, (2013) 5 SCC 546 [LQ/SC/2013/477] wherein the Hon'ble Supreme Court after analysing a large number of cases where death sentence was upheld/awarded or commuted, pointed out the requirement of applying the "crime test" (aggravating circumstances), "criminal test" (mitigating circumstances), "rarest of rare" cases in the following words,

"49. In Bachan Singh and Machhi Singh cases, this Court laid down various principles for awarding sentence: (Rajendra Pralhadrao Wasnik Vs. State of Maharashtra, (2012) 4 SCC 37, [LQ/SC/2012/239] SCC pp. 47-48, para 33)]

"33. ........ Aggravating circumstances--(Crime test)

(1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions.

(2) The offence was committed while the offender was engaged in the commission of another serious offence.

(3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person.

(4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits.

(5) Hired killings.

(6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim.

(7) The offence was committed by a person while in lawful custody.

(8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 of the Code of Criminal Procedure.

(9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community.

(10) When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person.

(11) When murder is committed for a motive which evidences total depravity and meanness.

(12) When there is a cold-blooded murder without provocation.

(13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.

Mitigating circumstances--(Criminal test)

(1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course.

(2) The age of the accused is a relevant consideration but not a determinative factor by itself.

(3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated.

(4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct.

(5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.

(6) Where the court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.

(7) Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the accused."

7. The Hon'ble Supreme Court in Shankar Kishan Rao Khedia (supra), further proceeded as to how the "crime test", "criminal test" and "rarest of rare case" are to be applied while considering awarding of death penalty, in the following words,

"84. This Court further said:-

"52. Aggravating circumstances as pointed out above, of course, are not exhaustive so also the mitigating circumstances. In my considered view, the tests that we have to apply, while awarding death sentence are "crime test", "criminal test" and the "R-R test" and not the "balancing test". To award death sentence, the "crime test" has to be fully satisfied, that is, 100% and "criminal test" 0%, that is, no mitigating circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society, no previous track record, etc. the "criminal test" may favour the accused to avoid the capital punishment. Even if both the tests are satisfied, that is, the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the rarest of the rare case test (R-R test). R-R test depends upon the perception of the society that is "society-centric" and not "Judge-centric", that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the court has to look into variety of factors like society's abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of intellectually challenged minor girls, suffering from physical disability, old and infirm women with those disabilities, etc. Examples are only illustrative and not exhaustive. The courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the Judges."

(emphasis and extra emphasis supplied)"

8. Keeping the aforesaid principles in mind, we will now proceed to examine the present case in hand.

9. Certainly, as also observed by the learned Trial Court, not only rape was perpetrated on a helpless and elderly respected teacher by two adult males but also snuffed her life permanently which has certainly shaken the conscience of the villagers and the society at large.

10. The question, however is, in respect of such act of rape and murder which is highly condemnable, how the perpetrators are to be given appropriate punishment within the framework of law.

11. The offence involving rape and murder permits award of capital punishment. Yet, the law has left it to the discretion of the Court to award death penalty punishment. The legislature has not laid down any parameters nor has laid down that in every case of rape and murder, death penalty has to be invariably awarded.

12. Under the circumstances, it becomes important for the Courts to examine the various aspects, both the aggravating and the mitigating circumstances, and also other principles as highlighted in the aforesaid decisions of the Hon'ble Supreme Court and certainly, as held by the Hon'ble Supreme Court in Bachan Singh case (supra) that it must be only in the rarest of rare cases, which indicates that such a crime must be of such a nature that its occurrence is rarer from rare by way of the nature of the crime committed, where capital punishment can be awarded.

13. In the present case, what we find is that as per the Prosecution, the victim was certainly subjected to brutal rape as there are signs of the victim being physically assaulted as can be seen from the post-mortem report.

14. We proceed to examine the issue in the following manner. Assuming that the plea of the Prosecution about the nature of the crime is correct, does it still warrant awarding of capital punishment.

15. We have seen injuries in the private parts of the victim which is indicative of sexual assault. Though the victim was alleged to be brutally sexually assaulted, yet, her death was not due to injuries received by the victim while she was being sexually assaulted, but death was due to asphyxia after she was throttled. Had the victim died because of the brutal nature of the sexual assault, it would have been one of the aggravating factors against the appellant. The medical opinion as contained in the post-mortem report is not that the victim died due to injuries received on being sexually assaulted. In fact, there is no opinion given that the victim was raped before she was killed.

16. It appears that the victim was done to death out of fear of the two accused Moinul and Salim Uddin of having their identity being disclosed by the deceased if she survived.

17. Though the victim was allegedly raped and murdered by the two accused in tandem, yet there was no case of gang rape or any such act of extreme brutal physical assault involving exceptional depravity which can be said to be diabolical, reversive, outrageous.

18. We have noted that the learned Trial Court also considered the various principles as elucidated in Machhi Singh (supra).

19. The learned Trial Court noted that the victim was the Headmistress of a School, a devoted lady teacher who was aged about 59 years on the verge of retirement and the appellants instead of respecting her as a school teacher, taking advantage of her age over powered her and having assaulted her, committed the crime upon her. The finding is that the convict Moinul Haque @ Monu had allegedly committed rape on her in a devilish manner by beating on her left chick, thereafter, other convict Salim Uddin @ Salim strangulated with his hands. After she died by throttling her, they threw the body into the Kopili river and thus, having fulfilled their carnal lust, they left the place.

20. The Trial Court held that it was a heinous, barbaric act perpetrated upon an elderly lady teacher by inflicting multiple injuries on her body and after committing the crime, killed her which shows the perversity of the act committed in a dastardly and gruesome manner by the appellants. Accordingly, the learned Trial Court held that it would come within ambit of the rarest of rare case.

21. The learned Trial Court also considered the principles governing the aggravating and the mitigating circumstances.

22. In considering the mitigating circumstances, the learned Trial Court, in respect of appellant, Moinul Haque @ Monu, noted the submission advanced by the convict that the death of victim caused, was not premediated one and that Moinul Haque was not the initiator. However, the learned Trial Court took the view that the aggravating circumstances far outweigh the mitigating circumstances inasmuch as the said Moinul Haque was also accused in a case of dacoity under Jamunmunamukh P.S. Case No. 27/2000 under Section 395/397 of IPC and was about 41 years of old and the chance of reformation is foreclosed. It was also held that the said Moinul Haque @ Monu held both the legs of the victim while the other convict Salim Uddin @ Salim strangulated her till death and it was the convict Moinul who raped the victim and after physical assault on her and accordingly, the learned Trial Court proceeded to award the capital punishment to accused Moinul Haque.

23. We have also considered the aforesaid aggravating circumstances which clearly indicate that the said Moinul Haque and other convict Salim Uddin were responsible for the assault on the elderly lady in a brutal manner and for causing her death. Such a crime, certainly, is abdominal and deserves to be condemned and the perpetrators should be visited with harsh punishment. But the question before this Court is, whether imposition of death penalty to accused Moinul Haque @ Monu under the facts and circumstances of the case, deserves approval from this Court or not.

24. We have no doubt that as per the finding of the Trial Court, the act of the said Moinul Haque and other accused Salim Uddin, in perpetrating the crime on an elderly and respected lady is heinous in nature and certainly has shaken the conscience of the villagers. However, we are doubtful whether the said case comes within the ambit of the "rarest of rare cases".

25. While there were indications that the victim was physically assaulted before she was allegedly sexually assaulted and killed by throttling, we are doubtful as to whether the aforesaid acts can be said to be associated with 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 and (iii) When the body of the victim is cut into pieces or his body is dismembered in a fiendish manner, as explained in Machhi Singh (supra), which would perhaps warrant death penalty.

26. We have also noted that while the learned Trial Court observed that since the convicted appellant Moinul Haque is already 41 years of age, the chance of his reformation is foreclosed.

As regards this aspect, we would like to refer to the decision of the Hon'ble Supreme Court in Shankar Kisanrao Khade (supra) where it has been emphasized that any mitigating factor as like young age of the accused, the possibility of reformation in the society or lack of intention to murder consequent to rape, previous criminal records etc. may favour an accused to avoid capital punishment, which is required to be examined by the Court before awarding a death sentence.

27. We have also noted that while the learned Trial Court made the aforesaid observations and findings, there does not appear to be any evidence on record adduced by the prosecution to show that there is no chance of the accused Moinul Haque of any reformation which is totally foreclosed though it has been also mentioned that Moinul Haque has been charged involving in a case of dacoity under Jamunmunamukh P.S. Case No. 27/2000 under Section 395/397 of IPC. It has not been shown as to whether the accused Moinul Haque was convicted in the said case at all or not. Merely a person is accused in a case of dacoity, does not necessarily mean that adverse inference can be drawn on the criminal antecedents of a person unless he has been convicted in the said case which is not forthcoming in the present case.

In other words, the prosecution has not adduced any evidence to show that the said accused Moinul Haque had been convicted in a criminal case and that there is no possibility of his reformation.

Under the circumstances as discussed above, we are not inclined to confirm the death sentence awarded to the accused Moinul Haque.

28. For the reasons discussed above, we are not able to agree with the punishment of death awarded to the accused Moinul Haque @ Monu by the learned Additional District and Sessions Judge, Fast Tract Court, Hojai, Sankardev Nagar vide judgment dated 24.07.2018 in S.C. No. 70(N)/2017 and order on quantum of sentence dated 01.08.2018 and accordingly, the sentence of death awarded to accused Moinul Haque @ Monu is set aside. However, what would be the appropriate sentence that may be imposed on Moinul Haque @ Monu will be subject to the decision in the remaining three appeals, Crl.A.(J) No. 71/2018, Crl.A.(J) No. 72/2018 and Crl.A. No. 322/2019.

29. Death Reference case is answered accordingly by setting aside the sentence of punishment of death awarded to Moinul Haque @ Monu.

30. This Court records its appreciation for the assistance rendered by learned Senior counsel Mr. Z. Kamar as Amicus Curiae. We direct that the learned Amicus Curiae be paid the honorarium as per rules.