Rarest of rare case: It is not necessary only death sentence to be awarded in rarest of rare cases

1. These appeals challenge the judgment and order dated 22nd February 2017, passed by the Division Bench of the High Court of Judicature at Allahabad in Capital Case Nos. 3359 and 3520 of 2015 with Reference No. 9 of 2015 and Criminal Appeal No. 3519 of 2015, thereby dismissing the appeals filed by appellant Madan and another accused Ishwar; whereas, it allowed in part, the appeal filed by appellant Sudesh Pal. By the said judgment, the High Court confirmed the judgment and order of conviction and sentence dated 31st 2 July 2015 passed by the Court of Additional Sessions Judge, Court No. 3, Muzzaffarnagar (hereinafter referred to as “trial court”) in Sessions Case No. 09/2005 with Sessions Case No. 838 of 2005 and 10/2005, in respect of appellant – Madan, while commuting the sentence of capital punishment to life imprisonment in respect of appellant – Sudesh Pal.

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Facts as per FIR

2.3 The FIR states that on 14th October 2003, at about 5.30 PM, when Satendra, the real brother of Lokendra (PW-1), his nephew Sunil s/o Chandrapal, cousin Ram Kishan s/o Narain Singh @ Lala, Sukhpal Singh (PW-2) s/o Lotan Singh and his father Jai Singh (PW-8) s/o Ganga Ram were going to the house of Up-Pradhan Rizwan s/o Irshad Khan (PW-7) for discussing problems of the village, and had reached the house of Rashid s/o Mustafa, appellant Madan along with Rajveer, Ram Bhajan, Ramveer, and Kanwar Pal who were the sons of Ishwar along with Ishwar himself, who was the brother-in-law (sala) of appellant Madan, also known as Pahalwan, appellant Sudesh Pal, who was the real brother-in-law (sadu) of appellant Madan along with Neetu, who was the nephew of appellant Madan, armed with licensed guns, rifles and country-made pistols came from behind and started firing indiscriminately. As a result of the said firing, Satendra and Sunil fell down on ‘Khadanja’. When Masooq Ali s/o Abdul Gaffur came out of his house upon hearing the sound of gunfire, the accused persons shot fire at him due to which he also fell down. Following which, Ram Kishan and Sukhpal Singh (PW-2) ran away to save their lives. Ram Kishan thereafter entered into the house of the Up-Pradhan Rizwan.

2.4 It is further stated in the FIR that the accused persons thereafter entered the house of Up-Pradhan Rizwan and fired shots at Ram Kishan, Rizwan and Rihan. They also fired shots at Sukhpal Singh (PW-2). Ram Kishan, Sunil and Satendra died on the spot. When Mumtaz Khan (PW-5) s/o Imtyaz reached at the place of incident, the accused persons fired shots at him as well. The accused persons further assaulted Jai Singh (PW-8), father of Lokendra (PW-1) with the ‘butt’ of the gun who then ran away to save his life. Following which, when the villagers were taking Rizwan, Rihan, Masooq Ali, Sukhpal Singh (PW-2) and Mumtaz Khan (PW-5) to the hospital; Rizwan, Rihan and Masooq Ali succumbed to their injuries and died on the way and their bodies were accordingly kept in their houses. When the accused persons were firing at the place of the incident, Ram Pal s/o Salet, Sudhir (PW-11) s/o Mahendra, Anil (PW-3) s/o Chandrapal, Mahesh Pal (PW4) s/o Prahlad, Harpal Singh (PW-10) s/o Dhara, Mahipal s/o Atal Singh along with other villagers reached and saw the said incident. Lokendra (PW-1) also reached the place of the incident and witnessed the incident with his own eyes and requested to register the report and take legal action.

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2.16 After completing the investigation, chargesheet came to be submitted against the arrested accused persons along with absconding ones in the court of jurisdictional Magistrate. Since the case was exclusively triable by the Sessions Court, the same came to be committed to the Sessions Judge, Muzaffarnagar. Following which, charges were framed against appellants Madan and Sudesh Pal and other accused persons, namely, Kunwar Pal and Ishwar for offences punishable under Sections 148 and 449, Section 302 read with Section 149, Section 307 read with Section 149, Section 323 read with Section 149 of IPC by the trial court; whereas, an additional charge for offence punishable under Section 25 of the Arms Act, 1959 was framed against accused Ishwar.

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Capital punishment imposed by trial court

2.19 At the conclusion of trial, the trial court vide judgment dated 31st July 2015 held the accused persons guilty of committing the murder of six persons and accordingly convicted the appellants herein along with accused Ishwar for offences punishable under Sections 148 and 449, Section 302 read with Section 149, Section 307 read with Section 149, 18 Section 323 read with Section 149 of IPC, while accused Ishwar was also additionally convicted for the offence punishable under Section 25 of the Arms Act, 1959. The trial court, observing the offences committed by the appellants herein to have been falling in the ambit of the rarest of the rare case, imposed sentence of capital punishment to the appellants herein for the offence punishable under Section 302 read with Section 149 of IPC, while it sentenced accused Ishwar to imprisonment for life for the same. The trial court sentenced each of the three accused persons 3 years rigorous imprisonment under Section 148 of IPC; life imprisonment under Section 449 and Section 307 read with Section 149 of IPC and one year rigorous imprisonment under Section 323 read with Section 149 of IPC. The trial court further sentenced accused Ishwar to five years rigorous imprisonment under Section 25 of the Arms Act.

Death reference confirmed for madan

2.20 Being aggrieved thereby, the accused persons preferred their respective appeals before the High Court with regards to the conviction and sentence awarded by the trial court. The High Court, by the impugned judgment, while commuting the sentence of appellant Sudesh Pal from capital 19 punishment to imprisonment for life, dismissed the appeals filed by appellant Madan and accused Ishwar and confirmed their conviction and sentence awarded by the trial court. The High Court further confirmed the Death Reference insofar as appellant Madan is concerned; whereas insofar as appellant Sudesh Pal is concerned, his appeal was partly allowed and the sentence of capital punishment imposed on him was converted to life imprisonment.

2.21 Being aggrieved thereby, the present appeals.

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Interested witnesses defence

1. The testimony of these witnesses is sought to be attacked on the ground that they are interested witnesses and there are inconsistencies in their evidence. 38. We may gainfully refer to the observations of this Court in the case of Piara Singh and Others v. State of Punjab [(1977) 4 SCC 452], which read thus:

“4. …….It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the court is satisfied that the evidence is credit-worthy there is no bar in the Court relying on the said evidence. The High Court was fully alive to these principles and has in fact found that the evidence of these three witnesses has a ring of truth. After having perused the evidence ourselves also we fully agree with the view taken by the High Court……..”

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Appreciation of interested witness

1. It can thus be seen that merely because some of the witnesses are interested or inimical witnesses, their evidence cannot be totally discarded. The only requirement is that their evidence has to be scrutinized with greater care and circumspection. In the present case, both the High Court and the trial court have meticulously scrutinized the evidence and found the testimony of the eye witnesses trustworthy and reliable. We have ourselves scrutinized their evidence as discussed hereinabove. We find that merely because there are certain inconsistencies in the evidence of the witnesses, their evidence cannot be discarded.
2. It will also be gainful to refer to the observations of this Court in the case of Waman and Others v. State of Maharashtra [(2011) 7 SCC 295], wherein this Court has surveyed the earlier judgments on the issue and held that if the evidence of interested witnesses is found to be consistent and true, the fact of being a relative, cannot by itself discredit their evidence.

Appreciation of rustic witness

1. It is further to be noted that all these witnesses are rustic villagers. In this respect, it will be relevant to refer to the observations of this Court in the case of State of Uttar Pradesh v. Krishna Master and Others – (2010) 12 SCC 324, which read thus:

“24. The basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole. The rustic witness as compared to an educated witness is not expected to remember every small detail of the incident and the manner in which the incident had happened more particularly when his evidence is recorded after a lapse of time. Further, a witness is bound to face shock of the untimely death of his near relative(s). Therefore, the court must keep in mind all these relevant factors while appreciating evidence of a rustic witness.”

Appreciation of sole witness who witness the firing

1. We are of the considered view that insofar as the first incident is concerned, the prosecution has duly proved its case beyond reasonable doubt in view of the testimony of Lokendra (PW-1) being duly corroborated by the testimonies of Harpal Singh (PW-10) and Sudhir (PW-11). We are of the considered view that the testimonies of these witnesses duly establish that these witnesses have witnessed the firing on Satendra, Sunil and Masooq Ali, who died on the spot. These witnesses have also seen the accused persons assaulting Ram Kishan and Sukhpal Singh (PW-2) who had received the firearm injuries, who ran to the house of Rizwan to take shelter.
2. We are further of the considered view that though Irshad Khan (PW-7) is a sole witness insofar as the firing on deceased Ram Kishan, Rizwan and Rihan is concerned, his testimony is cogent, reliable and trustworthy and can be made basis for coming to a conclusion that it is the present appellants along with other accused who have caused the death of deceased Ram Kishan, Rizwan and Rihan. In any case, his testimony is duly corroborated by the evidence of Lokendra (PW-1) who had immediately come to the second spot after the occurrence of the incident when Irshad Khan (PW-7) informed Lokendra (PW-1) about the incident occurring in his house.

Motive is not that relevant in direct evidence cases

1. The next contention raised on behalf of the appellants is that the motive attributed by the prosecution is a very weak motive. It is submitted that the motive attributed is on account of political enmity due to elections which were held two and half years prior to the date of incident. The motive is specifically brought on record in the evidence of Lokendra (PW1) and Irshad Khan (PW-7). Harpal Singh (PW-10) also deposed about the enmity between the families of Ishwar and Ram Kishan. In any case, the present case is a case of direct evidence. It is a settled law that though motive could be an important aspect in a case based on circumstantial evidence, in the case of direct evidence, the motive would not be that relevant. In this respect, we may gainfully refer to the judgment of this Court in the case of State of Andhra Pradesh v. Bogam Chandraiah and Another – (1986) 3 SCC 637, which reads thus:

“11. …..Another failing in the judgment is that the High Court has held that the prosecution has failed to prove adequate motive for the commission of the offence without bearing in mind the well settled rule that when there is direct evidence of an acceptable nature regarding the commission of an offence the question of motive cannot loom large in the mind of the court. ……”

1. This Court, in the case of Darbara Singh v. State of Punjab – (2012) 10 SCC 476, has observed thus:

“15. So far as the issue of motive is concerned, it is a settled legal proposition that motive has great significance in a case involving circumstantial evidence, but where direct evidence is available, which is worth relying upon, motive loses its significance…….”

1. Again in the case of Subodh Nath and Another v. State of Tripura – (2013) 4 SCC 122, this Court has observed thus:

“16. …….The learned counsel for the appellants is right that the prosecution has not been able to establish the motive of Appellant 1 to kill the deceased but as there is direct evidence of the accused having committed the offence, motive becomes irrelevant. Motive becomes relevant as an additional circumstance in a case where the prosecution seeks to prove the guilt by circumstantial evidence only.”

Faulty investigation does not important if direct evidence is cogent and reliable

1. Another submission on behalf of the appellants is with regard to faulty investigation. No doubt that there have been certain lacunae in the police investigation. However, the evidence of eye witnesses is consistent, reliable, trustworthy and cogent. Merely because there are certain lacunae in the investigation, it cannot be a ground to disbelieve the testimony of eye-witnesses. In this respect, we may refer to the observations of this Court in the case of Karnel Singh v. State of M.P – (1995) 5 SCC 518, which read thus:

“5. Notwithstanding our unhappiness regarding the nature of investigation, we have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. ………”

1. A similar view has been taken by this Court in the case of Shera Singh v. State of Punjab – (1996) 10 SCC 330.

Prosecution proved the case

1. In totality of the circumstances, we are of the considered view that the prosecution has proved beyond reasonable doubt the case for conviction under Section 302 of IPC and the appeals in that regard are liable to be rejected.

Decision regarding capital sentence imposed on madan

1. The next questions that we are called upon to consider are, as to whether the present case falls in the category of rarest of rare cases, and as to whether on the facts of the present case, the capital punishment imposed on appellant Madan deserves to be maintained or not?

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Appreciation on capital punishment

1. It can thus be seen that the Constitution Bench held that 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 are required to be recorded in writing before imposing the death sentence. While considering such a question, 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.

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Act of appellants fall under the rarest of rare cases

1. Applying the aforesaid principles, as laid down by this Court in the aforesaid judgments, it can be seen that in the present case, the appellants along with other accused came behind the innocent persons and exhorted and started firing indiscriminately, firstly, in front of the house of Rashid. As a result of which two persons namely Satendra and Sunil fell down and died on the spot. When Masooq Ali, after hearing the sound of firing, came out from his house, the accused persons shot fire at him also. As a result, he also fell down. Ram Kishan and Sukhpal Singh (PW-2) were also injured. The injured Ram Kishan and Sukhpal Singh (PW-2) went towards the house of Rizwan to save their lives. However, the appellants and the other accused followed them and went inside the house of Rizwan and fired shot at Ram Kishan. As a result, Ram Kishan died on the spot. The accused persons also fired shot at Rizwan and Rihan who tried to protect Ram Kishan. On their way to hospital, injured Masooq Ali, Rizwan and Rihan also died. It could thus be clear that, six deaths were caused on account of brutal firing by the appellants and other accused persons. The entire village and the people residing in the surrounding areas must have been shocked by such heinous and gruesome act. Not only that, one of the eye witnesses was also murdered during the pendency of the trial. The terror of the appellants and other accused persons was of such a high magnitude that even the witnesses who had received grievous injuries did not support the prosecution case and were required to be declared hostile. As such, we find that four innocent persons were shot from behind. Two of them succumbed on the spot and two, who received serious injuries, tried to rush to the house of Rizwan to protect themselves. One innocent person, after hearing the sound of firing, came out and he was also brutally shot. Ram Kishan, who sought shelter in Rizwan’s house and Rizwan and Rihan who tried to protect Ram Kishan were also brutally killed. We are therefore of the considered view that the act of the appellants and the other accused would certainly be the one which shocked the collective conscience of the society and fall in the category of rarest of rare cases.

Sentencing the appellant madan

1. The next question that we will be called upon to answer is that, whether in the facts and circumstances of the case, imposition of death penalty on the appellants, would be warranted or not?

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It is not necessary only death sentence to be awarded in rarest of rare cases

1. Recently, this Court, in the case of Sundar @ Sundarrajan v. State by Inspector of Police – 2023 SCC OnLine SC 310, held that ‘rarest of rare’ doctrine does not require that in such a case only death sentence has to be imposed. This Court held that, while considering as to whether the death sentence is to be inflicted or not, the Court will have to consider not only the grave nature of crime but also as to whether there was a possibility of reformation of a criminal.

Calling for prison conduct report

1. It is a settled position of law that, while sentencing, the Court is not required to apply only the ‘crime test’ but also the ‘criminal test’.
2. This Court, in the present case, vide order dated 16th March 2023, had called for the Probation Officer’s Report, Prison Conduct Report and Psychological Assessment Report.

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Previous conviction is not a ground for death penalty

1. No doubt that there is a history of previous conviction insofar as appellant Madan is concerned. However, this Court, in the case of Rajendra Pralhadrao Wasnik (supra), has held that the history of the convict by itself cannot be a ground for awarding him death penalty.

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Considering the advanced age of the appellant

1. As discussed hereinabove, the appellant is of an advanced age. This Court, in the case of Babasaheb Maruti Kamble v. State of Maharashtra – (2019) 13 SCC 640, has held that advance age is one of the mitigating circumstances in favour of the convict.
2. This Court, in the case of Irappa Siddappa Murgannavar v. State of Karnataka – (2022) 2 SCC 801, has held that the period of incarceration while sitting in a death row is also one of the mitigating circumstances. In the present case, convict Madan has been incarcerated for a period of 18 years 3 months.

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1. We are of the considered view that the present case would fall in the middle path as laid down in the case of Swamy Shraddananda alias Murali Manohar Mishra (supra), followed by this Court in various judgments. We find that the interest of justice would be met by converting death penalty into life imprisonment i.e. actual imprisonment for a period of 20 years without remission.

Party

MADAN VERSUS STATE OF UTTAR PRADESH – CRIMINAL APPEAL NOS. 1381-1382 OF 2017 – NOVEMBER 09, 2023 – 3 Judge Bench.

https://main.sci.gov.in/supremecourt/2017/12811/12811_2017_4_1501_48305_Judgement_09-Nov-2023.pdf

madan vs state of u.p