(SUPREME COURT OF INDIA)
Simon and Ors.
Vs
State of Karnataka
HON'BLE JUSTICE Y. K. SABHARWAL AND HON'BLE JUSTICE B. N. AGARWAL
29/01/2004
Criminal Appeal Nos. 149-150 of 2002
JUDGMENT
The Judgment was delivered by
Y.K. SABHARWAL, J.
Y.K. Sabharwal, J.:
1. The challenge in these appeals is to the conviction of the appellants in
relation to killings in occurrence which took place on 9th April, 1993. On
Police receiving information about the place of hiding of notorious criminal
Veerappan and his gang, a Police party headed by Superintendent of Police, K.
Gopalakrishanan (PW 97), on 9th April, 1993, proceeded to nab them. the party
comprising of police personnel, forester watchers and informants went in two
buses. As a result of blasting of land mines that had been laid, the bus which
was in front exploded. the explosion resulted in injuries to many and death of
22 persons. The incident took place at about 11.00 a.m. For treatment, the
injured were shifted to hospital by transporting them in the second bus. After
the explosion of the land mines, there were exchange of fire also. The FIR was
recorded at 2.45 p.m. on the date of the occurrence. The case was filed against
121 persons, 50 persons were arrested and prosecuted. The trial resulted in
conviction of the appellants who are four in number. The first appellant is
Simon (accused No. 16), second appellant is Gnana Prakash (accused No. 60), the
third is Madhiah (accused No. 31) and the fourth is Bilavendra (accused No.
32). The remaining accused have been acquitted.
2. The Special Judge, TADA Court, Mysore, by the impugned judgment and order,
has convicted the appellants for offence under Sections 3, 4, 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987
(for short 'the TADA Act'), Sections 143, 148, 307, 302, 332, 333, 324, 120(B0
and 149 Indian Penal Code, Section 3 of the Explosive Substances Act and
Section 25 of the Indian Arms Act, In respect of the main offences, the
appellants have been sentenced to undergo rigorous imprisonment for life
besides fine and further imprisonment in default of payment of fine. The lesser
punishment has been inflicted for offences under the Indian Arms Act and
Explosive Substances Act.
3. These appeals have been filed under Section 19 of the TADA Act. The
prosecution to prove the case against the appellants has examined a large
number of witnesses and has produced various documents. We have heard learned
counsel for the parties and have perused the record.
4. Having regard to the evidence produced, the occurrence, its time and place
and the presence of the witnesses at the place of occurrence as per case of the
prosecution can neither be questioned nor has it been questioned by counsel for
the appellants. These facts have been fully established. The main question that
has been raised on behalf of the appellants by their learned counsel is about
the identity and presence of the appellants at the place of occurrence. It has
been vehemently contended that the prosecution has not been able to establish
beyond reasonable doubt that the appellants were present at the place of
occurrence and were involved in the crime.
5. The FIR was recorded on the information of M. Ashok Kumar (PW 45) who was
working in the Jungle Patrol as Inspector of Police in the task force of Tamil
Nadu for nabbing Veerappan and his men. He was travelling in the second bus
which was at a distance of about 100 to 150 ft. from the first bus. PW 45 has
deposed about the explosion of the first bus as a result of land mine blast,
the attempt to chase Veerappan and his gang and opening of fire towards them.
Number of persons who were travelling in the second bus are prosecution
witnesses who have identified the appellants apart from those persons from the
first bus who received injuries but were lucky to survive.
6. The most important witness on whose testimony the result of these appeals
hinge to a large extent is PW97-an occupant of the first bus and one of few
fortunate to survive. The prosecution heavily relies upon the testimony of PW
97. The trial Judge has believed the testimony of PW97. Learned counsel for the
appellants, however, contends that it is not safe to base conviction on the
testimony of this witness who is vitally interested in securing the conviction
of the appellants.
7. Many witnesses have deposed to have seen the appellants at the place of
occurrence. The contention urged by the learned counsel, however, is that there
are various contradictions and infirmities in the depositions of these witnesses
and, thus, the conviction of the appellants is not liable to be sustained. It
has been submitted that the identification by these witnesses for the first
time in court after nearly 8 years of the incident is of no avail in the
absence of test identification parade. The contention is that not holding of
test identification parade is fatal to the case of the prosecution.
8. Whether the identification of an accused for the first time in court in
absence of any test identification parade can be made the basis of the
conviction depends upon the facts and circumstances of the case. No hard and
fast rule can be laid down. We have been taken through the testimony of PW 63
(Achutananda). The main criticism that has been levelled by Mr. Gonsalves to
the deposition of PW-63 who was working in the Special Task Force and was
travelling in the second bus and who identified accused No. 18, 30 and 31 is
that these accused even as per testimony of PW63 were pointed out to him at the
place of occurrence by another witness PW 89 (Alageshan) who was working at the
relevant time as a Forest Guard and had claimed that he knew the accused. It is
further pointed out that PW 63 does not claim that he knew these accused
earlier. Further submission of learned counsel is that at best PW 63 only had
the opportunity of getting a fleeting glimpse of the accused from a distance
and that too when the accused were running away and the said glimpse was also
only of the side face. Similar criticism has been made of PW 64 who identified
accused Nos. 30 and 31. This witness was travelling in the first bus and had
received injuries. PW65 who was travelling in the second bus also identified
accused No. 18 and 31. He was also a member of the Special Task Force. The
learned counsel has on similar grounds assailed the testimony of all the
witnesses who have identified the appellants. Appellant Simon has been
identified by 16 witnesses, Ghana Prakash has been identified by 4 witnesses,
Madhiah has been identified by 9 witnesses and Bilavendra has been identified
by one witness. We may, however, note that it is not the quantity which matters
but the quality of witnesses that matter. Further, learned counsel for the
appellants submits that PW 89 who at the relevant time was working as the
Forest Guard has wrongly identified all the appellants except Simon. It is
contended that this star witness of the prosecution who is alleged to have
pointed out and shown the appellants to the other witnesses who identified them
in court having himself wrongly identified all accused except Simon, the
testimony of other witnesses deserves to be discarded on this ground itself and
this is said to be fatal to the case of the prosecution. The conviction, it is
contended, based on identification of such witnesses cannot be sustained.
9. We are unable to accept the contention that wrong identification by one
witness by itself would be fatal to the case of a prosecution. A case is
required to be decided on the examination of entire evidence. Mere wrong
identification by one of the eye-witness by itself cannot be fatal to the case
of the prosecution. # There can be variety of reasons for wrong
identification. The witness may be won over. There may be loss of memory or any
other reason. The wrong identification made by PW 89 of the accused other than
that of Simon, without anything more, by itself would not be fatal if the case
of the prosecution on the basis of other evidence adduced by it stands proved.
At this stage, we may notice that the FIR records that PW 89 saw some persons
running from the top of a nearby hills and he identified them as Veerappan and
his brother Arjuna, Ayyandorai and about 10 others. 10. Firstly, let us examine
the deposition of PW 97. He was the Superintendent of Police under whom the
Police personnel and others went to nab Veerappan and his gang. It has been
proved from evidence that earlier for nearly one and a half years from January,
1990 to May 1991, PW 97 was working as a Superintendent of Police, Jungle
Patrol, Head Quarters at Mettur Dam. The Jungle Patrol was constituted to nab
Veerappan and his gang. In 1993 also he was Superintendent of Police in the
Task Force constituted for the specific purpose. The witness has been given
detailed account as to how he received information about the hideout of
Veerappan and his gang, how accompanied with other Police Officers and
Foresters, he proceeded to the place of occurrence. PW97 was standing on the
front footboard of the first but. The bus, as a result of the blast of land
mines, went into pieces but PW97 on being on footboard was thrown out of the
bus and, thus, survived. He fell into a small ditch and sitting from the said
place, he was able to see as to what happened to inmates of the bus, some
having sustained serious injuries and some having died. He has further deposed
that immediately Mahendran, Salvam and Mhonadas who were also in first bus got
up from there with small injuries and came to him and they saw that few people
on the northern side and firing towards them. He has deposed to have seen the
appellants, accused No. 1 and accused Arjunan and some other people coming
towards them by firing. He also ordered his people to fire at them. PW97
sustained injuries on the left leg, left hand and on the face. Immediately
after the occurrence, when the accused went into the forest and the firing came
to stop, the witness was sent to the hospital for treatment. That was before
the FIR was recorded. Out of all the accused persons, he identified the four
appellants. It is also in evidence that he had seen the appellants earlier to
this incident as well.
11. We have critically examined the testimony of PW97. The contention of the
learned counsel for the appellants, however, is that PW 97 would have been
completely shattered as a result of manifold injuries be received because the
bus in which he was travelling was hit by land mines and, therefore, it is
highly improbable that he would have seen the appellants. There is no substance
in the contention. None of the injuries, it may be noticed, were such as would
hamper the witness spotting and seeing the accused. Moreover, it has to be
borne in mind that PW97 was a senior officer who had worked for nearly one and
half years as in-charge of the Task Force that had been constituted to nab
Veerappan and his gang. Regarding the witness being shattered and perplexed, he
has explained that he was perplexed for two or three minutes. He has deposed to
have seen the accused persons on earlier occasions as well. he has given valid
reasons for not apprehending them earlier. He had the opportunity to see the
accused from a close distance. The witness had in his possession documents
regarding the accused. If PW97 was to falsely implicate he would not identity
the four appellants only and leave remaining accused. There were 50 accused in
all. Learned counsel also contends that because of dust as a result of blast of
land mines, it was not possible to see the accused. Though PW97 has stated that
after the blast there was dust but, at the same time, he has also stated that
the dust had cleared in two minutes. He has further explained that the smoke
that had emanated as a result of the blast was not very thick. Despite lengthy
cross-examination, the testimony of PW97 could not be shaken. In our view,
the testimony of PW97 is reliable and trustworthy and can safely be made the
basis of conviction. #
12. The next contention urged is that not holding of test identification
parade, identifying the accused is fatal to the case of the prosecution in the
present case. The submission is that by very nature, the identification of the
accused for the first time in court is a weak piece of evidence and cannot be
made the basis of conviction. Reliance has been placed on State of Maharashtra
through CBI v. Sukhdev Singh alias Sukha & Ors [ in support of the
contention that in absence of test identification parade, it would be extremely
risky to place implicit reliance on identification made for the first time in
court after a long lapse of time. But it has to be kept in mind that this
principle will apply to case of total strangers. In this contention, it has to
be kept in view that PW 97 knew the accused as stated hereinbefore. The
question of identification arises when accused are not known. Since the
appellants were known in the manner above stated, the holding of a test
identification parade, on the facts of the case, would have been wholly
unnecessary. Regarding the contention about the names of the appellants not
being mentioned in the FIR, it has been explained that the FIR was not recorded
on the information of PW97. PW97 had already been shifted to the hospital
before recording FIR and, therefore, non-mentioning of the names of the accused
in the FIR is of no consequence. On facts of the case, the lapse of the time
between the date of the incident and the date of identification by PW97 is also
of no consequence. As already noticed, out of fifty accused, PW 97 deposed only
about presence of four appellants who were earlier known to him.
13. It cannot be said that the appellants were strangers to PW97 or that this
witness had only a fleeting glimpse of the side face of the appellants. The
criticism levelled in respect of other witnesses that they identified the
accused for the first time in court would not apply to PW 97.
14. Relying upon Budhsen & Anr. v. State of U.P. [ ], it was contended
that evidence as to identification deserves to be subjected to a close and
careful scrutiny by the court. The decision in Shaikh Umar Ahmed Shaikh &
Anr. v. State of Maharashtra [ ] was relied for the proposition that when
the accused were already shown to the witnesses, their identification in court
by witnesses was meaningless and such identification lost all its value and
could not be made the basis for rendering conviction. The legal position on the
aspect of identification is well settled. Under Section 9 of the Indian
Evidence Act, 1972, the identity of the accused persons is a relevant fact. We
have no difficulty in accepting the contention that evidence of mere
identification of an accused person at the trial for the first time is from its
very nature inherently of a weak character. The purpose of a prior test
identification is to test and strengthen the trustworthiness of that evidence.
Courts generally look for corroboration of the sole testimony of the witnesses
in court so as to fix the identity of the accused who are stranger to them in
the form of earlier identification proceedings. This rule of prudence, however,
is subject to exceptions, when, for example, the court is impressed by a
particular witness on whose testimony it can safely rely, without such or other
corroboration. It has also to be borne in mind that the aspect of
identification parade belongs to the stage of investigation, and there is no
provision in the Code of Criminal Procedure which obliges the investigating
agency to hold, or confers a right upon the accused to claim a test
identification parade. Mere failure to hold a test identification parade would
not make inadmissible the evidence of identification in court. What weight is
to be attached to such identification is a matter for the courts of fact to
examine. In appropriate cases, it may accept the evidence of identification
even without insisting on corroboration {see Malkhansingh & Ors. vs. State
of M.P. [ 2003 (5) SCC 740]}. These well settled principle, however, have
no applicability to facts of the instant case. This is a case where appellants
were known to PW 97 and he has identified them in court and other witnesses, as
we would presently notice, corroborated the testimony of PW97, though, in our
view, conviction could be sustained on the sole testimony of PW 97.
15. With reference to PWs 63, 65 and 66 and other similar witnesses who have
deposed to have seen the appellants at the place of occurrence, it was
contended that basically the principles that the accused were unknown to these
witnesses shall apply and not that they had known and seen the accused at the
place of occurrence. The basis of this submission is that these accused were
not known to the witnesses except PW89 who is said to have shown the accused to
the aforesaid witnesses. There is considerable amount of substance in the
submission of the learned counsel but its effect and applicability to the facts
of the case is a different matter. We have no hesitation in accepting the
contention that if the conviction was based on the testimony of PWs 63, 65 and
other such witnesses who saw the accused for the first time on date of
occurrence, it would have required corroboration. But the conviction of the
appellants is not based on the testimony of these witnesses. It is based on the
testimony of PW97 and aforesaid witnesses have lent corroborative support.
16. We have noticed hereinbefore number of witnesses who identified each of the
appellants in court. Referring to the testimony of PWs 63 to 67, 72 and 73,
contention urged is that the entire area was engulfed with dust and nothing
could be seen as a result of the blast of land mines; the first vehicle was
shattered in pieces and thrown upto height of 20-30 ft. and that the assailants
ran away after the blast and there was no firing after blasting of land mines
which shows that the assailants were not seen at all. It is not possible to
accept the contention that after the blast of land mines, there was no fire. the
firing from both side after the blast of land mines stands proved from the
testimony of PWs 63, 64 65 and 66. PW 63 deposed that 'at the same time we were
hearing the firing sound, then we also started firing to that direction and
followed'. The witness also deposed that be had fired 16 rounds and that there
was entry in the ledger for having fire arm and for returning it. Likewise,
PW64 deposed that he heard firing sound and returned back the firing. PW65
deposed that while firing was coming from the side of hillock, he instructed 15
policemen to also fire. To the similar effect is the testimony of PW 66.
Regarding the contention that the area being engulfed with the dust and nothing
could be seen, we have already referred to the testimony of PW97 that such
condition prevailed only for about two minutes. It is correct that the first
vehicle was shattered in pieces as a result of land mines but, at the same
time, PW97, as a result of being on the footboard of the bus, was thrown in a
ditch from where he had ample opportunity to see the appellants after the blast
of the land mines. The presence of these witnesses at the place of occurrence
cannot be doubted. Under these circumstances, we are unable to accept the
aforenoticed contention of the learned counsel.
17. Another contention urged is that though PWs 63 to 66 and other similar
witnesses have deposed to have seen the appellants at the place of occurrence
about 8 years back, but none of them including PW97 could identify them except
by going near them in the court hall. It was pointed out that the evidence of
these witnesses shows that each of them in the court hall. It was pointed out
that the evidence of these witnesses shows that each of the witness had to go
close to the accused and then alone it was possible to identity them. We find
no substance in the contention. The reason for going near the accused was that
out of a large number of 50 accused present in the court, only the four
appellants were identified and it was proper to identify them by going near
them. It is quite difficult to identity an accused from a distance in a court
hall by pointing out a finger towards the accused by the witness when the
accused are large in number. It is in this context that the trial court has
recorded that after going near the accused, the witness has identified them. It
does not mean that testimony of witnesses in court becomes doubtful on their
having identified the accused after going near them. Regarding the contention
that the accused were shown to the witnesses, we may only note that no such
suggestion was given to the investigating officer during the course of
cross-examination. It further deserves to be notice that though the evidence
commenced on 7th February, 2001, such complaint was made to the court for the first
time on 15th March, 2001 by which time a large number of witnesses had already
been examined.
18. There is no merit in any of the contention urged on behalf of the
appellants. The trial court has rightly convicted the appellants. For main
offences, the appellants have been sentenced to undergo rigorous imprisonment
for life. Considering the number of killings and brutal matter thereof, we had
issued notice to the appellants to show cause why the punishment be not
enhanced from life imprisonment to death penalty. # We have heard learned
counsel for the parties on that question.
19. Facts in brief may be recapitulated to examine the question of sentence. There
was a reign of terror in the area. Even Police had to move about with escort
party. The crime has been committed in a brutal manner by use of land mines.
The blast of mines has resulted in 22 persons losing their lives and many
receiving grievous injuries.
20. The trial court held that it is a rarest of the rare case for imposing
capital punishment # . At the same time, it has been further held that the
appellants do not deserve the said punishment for the reasons that it is not
the case of prosecution that the accused had started their carrier as criminals
and developed such notoriety; and that it was accused No. 1, Veerappan, who
alone started his criminal activity which reached such notoriety that by
creating terror in the mind of the people he took inhabitants from surrounding
areas to his assistance and compelled them to fall in his line. The trial court
has also observed that appears that these accused are some such people joining
the gang of Veerappan involved in the criminal act as directed by him.
21. True, the grant of life imprisonment is the rule and death penalty an
exception in rarest of rare cases by stating 'special reasons' for awarding it
but, at the same time, it is also true that the punishment awarded must
commensurate with the crime committed by the accused. It is also true that
ordinarily the sentence is not enhanced by the Appellate Court unless it is
such a gross case that nothing but maximum sentence stipulated in law deserves
to be awarded.
22. We are conscious of the fact that the power to enhance death sentence from
life should be very rarely exercised and only for strongest possible reasons
and not only because the appellate court is of that view. The question of
enhancement of sentence to award death penalty can, however, be considered
where the facts are such that to award any punishment less than maximum would
shock the conscious of the court. The fact of dismissal of special leave
petition filed by the State seeking enhancement of sentence on the ground of
limitation does not take away the power of this Court to make an order
enhancing the sentence in these appeals if the facts call for such an order
being made. #
23. The court has to consider the nature of the crime as well as the accused.
The trial court has rightly come to a definite conclusion that the case falls
in the category of rarest of rare cases for imposing capital punishment. The
reasons given by the trial court for not awarding it have been stated above. In
support of the reason stated by the trial court that it appears that the first
accused Veerappan compelled the appellants to join his gang, learned counsel
for the appellants contends that if a crime is committed under duress, it would
be a mitigating circumstances for not awarding death penalty. In support of the
contention learned counsel relies upon a decision of House of Lords in Director
of Public Prosecutions for Northern Ireland v. Lynch [1975 Appeal Cases 653]
stating at page 695 So contemporarily aware a written on the criminal law as
Professor Glanville Williams, Criminal Law, 2nd ed. (1961) p. 751 quotes the
phrase "coactus volul" as descriptive of the mental state of an
actor under duress according to our criminal law. I hope, indeed, to have
demonstrated that duress is not inconsistent with act and will, the will being
deflected not destroyed; so that the intention conflicts with the wish. The
actor under duress has performed an act which is capable of full legal effect:
if he is to have relief it should be discretionary. Translated into terms of
the criminal law, he is guilty of the crime, but he may at discretion be
relieved against its potential penal consequences when it comes to sentencing *
."
24. Lynch says that it shall be remembered that if someone is forced at a
gunpoint either to be inactive or do something positive he was so doing because
the instinct and perhaps the duty of self-preservation is powerful and natural,
the law would be censorious, inhuman if did not recognise the appalling plight
of a person who perhaps suddenly finds his life in jeopardy unless he submits
and obeys as it was said that where there have been threats of the nature that
have compelled a person to act in a particular way and he is only acting in
furtherance because of that the approach should be to excuse that person.
25. The Lynch came up for consideration by House of Lords in Regina v. Howe
etc. [1987 Appeal Cases 417]. In Howe's case after noticing the prior to Lynch
there was heavy pre-ponderous of authority against the availability of the
defence of duress in case of murder, the prior law has been restored and, thus,
Lynch case stands overruled. The Howe's case has been noticed with approval by
House of Lords in Regina v. Gotts [1992 Appeal Cases 412]. In this decision, it
was held that the defence of duress is not available to a charge of murder.
26. Reliance has also been placed by Mr. Gonsalves on a decision of this Court
in Major R.S. Budhwar v. Union of India & Ors. [1996 C.R.L. L.J. 2862]- a
case in which sentence of death was commuted and imprisonment of life imposed.
In the said case Commanding Officer and Second-in-Command in Army were murdered.
Holding that murders were diabolically planned and committed in cold blood, but
it was by exploiting the religious feelings of the accused who had initially
declined to commit the offence but ultimately succumbed to the threat, command
and influence of their superiors. Another mitigating factor found in favour of
accused was that Major Budhwar, who along with another Officer (since dead)
masterminded the two murders were awarded life imprisonment whereas the
appellants who carried out their orders had been sentenced to death. Yet,
another factor which weighed in favour of the accused was their post murder
repentance. The accused not only surrendered before the authorities within two
days but also spoke out the truth in their confessional statements. Since none
of these mitigating circumstances had been taken into consideration by the High
Court which was obliged to consider both the aggravating and mitigating
circumstances, this Court balancing the two, imposed life imprisonment instead
of death penalty.
27. In State of Rajasthan & Anr. v. Kartar Singh & Anr. [ instead
of death sentence, life imprisonment was imposed as on facts it was held that
the part played by the accused was secondary. Similarly in Kannan and Anr. v.
State of Tamil Nadu the sentence of imprisonment for life was
substituted for the sentence of death finding that the accused were really
'Junior partners' in the perpetration of the crimes. Their appearance on the
scene was itself at a late stage and they were instruments in the hand of and
under the domination of their fellow accused.
28. In Ronny alias Ronald James Alwaris & Ors v. State of Maharashtra
[ 1998 (2) SCC 625] instead of death, life imprisonment wad inflicted
noticing that it was not possible, on the facts of the case, to predict as to
who played which part and, therefore, it was not possible to say whose case
falls within the rarest of rare cases category.
29. In Bachan Singh etc. v. State of Punjab etc. [ ] rejecting the
challenge to the constitutional validity of awarding death penalty and holding
that death penalty should not be imposed except in rarest of rare cases, some
of the mitigating and aggravating circumstances required to be kept in view
while considering the aspect of sentence have been noticed. The question of
sentence is to be decided on well-settled and recognised legal principles
balancing all circumstances in relation to the crime and the criminal. The
decision in Rajendra Prasad etc. etc. v. State of Uttar Pradesh & Anr.
] wherein it was held that after the enactment of Section 354(3), CrPC
'murder most foul' is not the test and the shocking nature of crime or number
of murders committed is also not the criterion and that the focus had
completely shifted from the crime to the criminal was overruled in Bachan Singh
case. In Bachan Singh's case, it was emphasised that for ascertaining the
existence or absence of 'special reasons', the court must pay due regard both
to the crime and the criminal. What is the relative weight to be given to the
aggravating and mitigating factors, depends on the facts and circumstances of
the particular case. More often than not, these two aspects are so intertwined
that it is difficult to give a separate treatment to each of other. In many
cases, the extremely cruel of beastly manner of the commission of murder is
itself a demonstrated index of the depraved character of the perpetrator. That
is why, it is not desirable to consider the circumstances of the crime and the
circumstances of the criminal in two separate watertight compartments. The
Constitution Bench said that though all murders are cruel but cruelty may vary
in its degree of culpability and it is only then the culpability assumes the
proportion of extreme depravity that "special reasons" can
legitimately be said to exist.
30. In Bachan Singh's case, some of the aggravating circumstances in which the
Court may impose penalty of death in its discretion noticed are:-
(a) if the murder has been committed after previous planning and involves
extreme brutality; or
(b) if the murder involves exception depravity; or
(c) if the murder is of a member of any of the armed forces of the Union or of
a member of any police force or of any public servant and was committed-
(i) while such member of public servant was on duty;
(ii) in consequence of anything done or attempted to be done by such member or
public servant in the lawful discharge of his duty as such member of public
servant whether at the time of murder he was such member or public servant, as
the case may be or had ceased to be such member or public servant; or
(d) if the murder is of a person who had acted in the lawful discharge of his
duty under Section 43 of the Code of Criminal Procedure,
1973, or who had rendered assistance to a magistrate or a police officer
demanding his aid or requiring has assistance under Section 37 and Section 129
of the said Code.
30. Some of the mitigating circumstances, the court shall take into account in
the exercise of its discretion that are noticed in Bachan Singh's case are:-
(i) That the offence was committed under the influence of extreme mental or
emotional disturbance.
(ii) That age of the accused. If the accused is young or old, he shall not be
sentenced to death.
(iii) The probability that the accused would not commit criminal acts of
violence as would constitute a continuing threat to society.
(iv) The probability that the accused can be reformed and rehabilitated.
The State shall by evidence prove that the accused does not satisfy the
conditions (iii) and (iv) above.
(v) That is the facts and circumstances of the case the accused believed that
he was morally justified in committing the offence.
(vi) That the accused acted under the duress or domination of another person.
(vii) That the condition of the accused showed that he was mentally defective
and all the said defect impaired his capacity to appreciate the criminality of
his conduct.
31. None of the aforesaid circumstances can be taken into consideration in
isolation. The circumstance of duress or domination of another person is
required to be taken into consideration as a relevant circumstance but that has
to be considered on the facts of a particular case while considering and
balancing all other aggravating and mitigating circumstances. That alone is not
the determining factor.
32. Machhi Singh & Ors. v. State of Punjab [ ] this Court has observed
that one of the categories of rarest of rare case may be when the collective
conscience of the community is so shocked that it will expect the holders of
the judicial power center to inflict death penalty irrespective of their
personal opinion as regards desirability or otherwise of retaining death
penalty. The community may entertain such sentiment when the crime is committed
in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so
as to arouse intense and extreme indignation of the community. Further, 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. It was observed that in
order to apply the guidelines, inter alia, the following questions may be asked
the 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?"
*
33. The Court further said:-
"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." *
34. In Krishna Mochi & Ors. v. State of Bihar [ 2002 (5) SCC 81], a
three Judge Bench of this Court (to which one of us B.N. Agrawal, J. was a
member), having regard to the law laid down in Bachan Singh and Machhi Singh
cases, and considering the case in hand where pursuant to the conspiracy
hatched up, the militants from different groups went to different localities in
police uniforms armed with fire arms and explosive substances, broke upon the
doors of the house of members of a particular community and also set fire to
their houses, come to the conclusion that there cannot be any amount of doubt
that the villagers were done to death in extremely diabolical, revolting and
ghastly manner and it affected the normal tempo of life in locality. The crime
was not only dastardly but also enormous in proportion as 35 persons were
massacred. Considering the balance-sheet of aggravating and mitigating
circumstances it was held that the culpability of the accused persons assumes
the proportion of extreme depravity that the special reasons can legitimately
be said to exist within the meaning of Section 354(4) of the Code of Criminal
Procedure and it would be a mockery of justice if extreme penalty is not
imposed.
35. In Devender Pal Singh v. State of NCT of Delhi and Anr. [ a decision
of this Court by a Bench of three judges in which one of us (B.N. Agrawal, J.)
was a member, it was said that 'Terrorist', who are sometimes described as
'death merchants' have no respect for human life and innocent people lose their
lives because of mindless killing by them and any compassion for such person
would frustrate the purpose of enactment of TADA and would amount to misplaced
and unwarranted sympathy.
36. Now, the factors in the present case which are relied upon as mitigating
factors by learned counsel for the appellants that there was no administration
in the area and that it had totally collapsed and at that time no police officer
could have proceeded beyond Hanur towards MM Hills without police escorts and
as many as eight vehicles are required to escort one vehicle and further that
each escort party consisted of minimum three platoons; each platoon containing
thirty-three persons; no summons could be served in many villages; no
government official could more freely in that area, are all factors which in
our view, are aggravating circumstances against the appellants instead of being
mitigating circumstances in their favour. The factors show the nature of crime
and the criminals. There is nothing to show that the appellants joined
Veerappan on account of these factors. It is evident that aforesaid factors
cannot be handy work of one person. In absence of any evidence, it cannot be
said that persons/accused responsible for aforesaid state of affairs in the
area because of these criminal activities, joined and continued the said
criminal activity on account of any duress, domination or compulsion. Further
it may be one of the mitigating factors but had no be considered in the light
of all circumstances. The accused are responsible for such a situation. In a
pre meditated planned manner land mines were laid enroute the police party.
There were firing also after the blast of landmines. The appellants are members
of notorious gang. Their prime target is police personnel of the State and the
Special Task Force constituted to stop their activities with a view to
terrorise the people. The appellants are members of the gang led by A-1 They do
not deserve any sympathetic consideration. There is no evidence or foundation
for the conclusion that they acted under the duress of Accused No. 1. #
37. The facts of the preset case do not show that the appellants were
compelled to fall in line with the criminal activity of accused No. 1 or that
they joined his group on account of any duress or compulsion. The manner in
which the crime was committed clearly shows that any person can contemplate the
disastrous effect of blasting of landmines. It is evident that the crime was
diabolically planned. The appellants are threat and grave danger to society at
large. They must have anticipated that their activity would result in
elimination of large number of lives. As a result of criminal activities, the
normal life of those living in the area has been totally shattered. It would be
mockery of justice if extreme punishment is not imposed. Thus, having given
anxious consideration to all the circumstances aggravating and mitigating, in
our view, there can hardly be a more appropriate case than the present one to
award maximum sentence. We have to perform this onerous duty for
self-preservation, i.e. preservation of persons who are living and working in
the area where appellants and their group operate.
38. In view of the aforesaid, while dismissing the appeals and confirming the
conviction of the appellants, we enhance the sentence of each of them from life
imprisonment to death penalty. #