Yogendra @ Jogendra Singh v. the State of Madhya Pradesh

S. A. BOBDE, J. 1. Leave granted. 2. These appeals are filed against the Judgment of the High Court of Madhya Pradesh, Gwalior Bench, dated 12.12.2014 confirming the death sentence awarded to the appellant by the Sessions Court, Ambah, District Morena (M.P.) vide its judgment in Sessions Trial No.388/2013 dated 24.07.2014.The Appellant has been convicted under sect ions 302,326(A) and 460 of IPC and awarded capital punishment of death sentence, life sentence on three counts and fine of Rs.25,000/-each, and ten years’ R.I. and fine of Rs.5000/- with default stipulations, respectively. This death sentence has been confirmed by the High Court on a reference under Section 366 of Cr.P.C. The brief facts of the case are as follows: the Appellant has been convicted for the murder of one Smt. Ruby by pouring acid on her. The Sessions Court awarded a death sentence under Section 302 of the IPC. In the incident the grandmother of the deceased Smt. Chandrakala (PW 3) and one Raju - nephew (PW 7) of the deceased and Janu (PW 4) brother of the deceased were also injured. The Appellan t has been convicted for disfiguring and injuring these people by throwing acid under Section 326(A) of IPC. 3. The Sessions Court imposed a fine on the Appellant payable to Smt. Chandrakala, Raju and Janu in the sum of Rs.10,000/- each. The High Court has enhanced the compensation and held that J anu was 251 entitled to be compensated a sum of Rs. 3 lac and Smt. Chandr akala and Raju who were not so disfigured were held entitled to compensation of Rs. 1.5 lac each. 4. The deceased Ruby was married to one Mr. Sanjay Gupta and had two issues from the wedlock. The Appellant coveted her and the husband suspected an affair between his wife-the deceas ed and the Appellant and harassed her accusing her of the same. The deceased thereafter came to live with her maternal uncle. The Appellant pressurized the deceased’s father (PW 8) for summoning her to Porsa and threatened him with dire consequences if his demand was not fulfilled. On that ominous night in summer, the deceased and her family members went to their respective rooms and retired for the night. The doors were kept open since it was summer. There was light in the rooms and the courtyard from some bulbs. The Appellant snuck into the room of the deceased and warned her “though she doesn’t want to live with him he is not going to let her live with anybody else”. The father of the deceased, Dataram (PW 8) woke up on hearing this and saw the Appellant running away after throwing acid on his daughter. The deceased started screaming, whereupon other family members tried to save her, the Appellant then, threw acid on the other members of the family, burning and injuring all of them. In the attack, the deceased sustained burn injuries to the extent of 90% all over her body while others also sustained burn injuries. 5. At this juncture, we would like to note that though we hav e examined the entire record in detail, we do not consider it necessary to deal with all the aspects of the evidence in this judgment. We are satisfied that the Appellant has been rightly convicted for causing the death of the deceased Smt. Ruby. All the circumstances of the case and particularly the dying declaration of Smt. Ruby, unerringly point, to the Appellant as the one who caused her death. There is no conjecture , surmise or inference in the narration of the witnesses who saw the Appellant in the act and were themselves the victim of his acid attack. 6. The evidence, which commends itself as unimpeachable, is as follows: the Appellant fled from the scene of the crime after committing the crime at Porsa on 21.07.2013. He was arrested from Munchkund Dholapur on 11.09.2013. The Investigating Officer has deposed that the YOGENDRA @ JOGENDRA SINGH v. STATE OF MADHYA PRADESH [S. A. BOBDE, J.] Appellant lead to the recovery of a beer bottle which is s aid to have been used for carrying the acid used in the attack. The Inves tigating Officer further deposed that the fingerprints of the Ap pellant and the fingerprints found on the beer bottle matched. The expert reported that the fingerprints found on the bottle and the fingerprints of the Appellant are of one and the same person. 7. Mansingh Pawak (PW 10) was functioning as a Tehsildar / Executive Magistrate at Porsa. He was called by the St ation House Officer, Porsa for recording the Dying Declaration of the deceased and the injured Janu. He clearly stated that the deceased was in a conscious state of mind while giving her statement and also provided her thumb impression on the dying declaration. The deceased in her dying declaration stated that the appellant Jogendra Singh had burnt her by pouring acid on her, she further stated that the Appellant would harass her and abuse her on the phone. The statement of the injured Janu was recorded as a Dying Declaration believing that Janu might not survive. Nonetheless, the statement is on record and has been duly proved. We are satisfied that the Dying Declaration of the deceas ed can be given highest probative value and offers a strong foundation for the conviction of the Appellant. It is not necessary to decide whether Janu’s Dying Declaration is admissible because he did not die. Since Janu has deposed as PW4; we find that the evidence of Janu (P W4), Smt. Chandrakala (PW3) who is the grandmother of the deceased and who also has suffered injuries is consistent and reliable. All the three witnesses have deposed that the appellant threw acid on them as well. In fact the acid disfigured the face of Jan u. PW8, Dataram the father of the deceased deposed that as soo n as he came out from his room on hearing the cries of the dece ased he saw the appellant running away from the place. We find that the above evidence amply justifies the conviction of the accused beyond any reasonable doubt. The rest of the evidence is consistent, cogent and reliable. 8. However, the question that remains to be considered is whether there are special reasons as to why the appellant should be sentenced to death. The term ‘special reasons’ undoubtedly means reasons th at are one of a special kind and not general reasons. In the present case there is one factor, which might warrant the imposition of the death sentence, 253 as vehemently, urged by the learned counsel for the State. That reason is that the Appellant committed this crime when he was ou t on bail in another case wherein he has been convicted for murder and his sentence has been upheld. It is undoubtedly difficult to ignore this fact but we find that it is safer to consider the imposition of sentence based on the fa cts of this particular case. Unquestionably, if there is a pattern discernible across both the cases then a second conviction for murder would warrant the imposition of a death sentence. But that does not appear to be so in the present case. The earlier incident is totally unrelated to the circumstance of this case. The appellant was charged along with co-acc used one Kiran Nurse for committing the murder of one Laxminarayan a lias Laxman Singh in the intervening night of 27.07.1994 and 28.07.1994. The present incident took place on 21.07.2013 and the last one almost ten years before the present incident. 9. In the case before us, the incident is related to the appe llant being disappointed in his relation with the deceased who he beli eved deserted him. The circumstance of the case and particularly the choice of acid do not disclose a cold-blooded plan to murder the deceased. Like in many cases the intention seems to have been to severely in jure or disfigure the deceased; in this case we think the intention resulted into an attack more severe than planned which then resulted in the death of the deceased. It is possible that what was premeditate d was an injury and not death. 10. We have not made the above observation in any way to condone the acts of the appellant but merely to hold that there appea r to be no special reasons in the present case that warrants an im position of a death sentence on the Appellant. In Bachan Singh v. State of Punjab 1 this Court held as follows: - “209. There are numerous other circumstances justifying the passing of the lighter sentence; as there are count ervailing circumstances of aggravation. “We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undu lating society.” Nonetheless, it cannot be over-emphasised tha t the scope and concept of mitigating factors in the area of death 1 (1980) 2 SCC 684 YOGENDRA @ JOGENDRA SINGH v. STATE OF MADHYA PRADESH [S. A. BOBDE, J.] penalty must receive a liberal and expansive construction b y the courts in accord with the sentencing policy writ l arge in Section 354(3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Fact s and Figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penal ty with extreme infrequency — a fact which attests to the cauti on and compassion which they have always brought to bear o n the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern tha t courts, aided by the broad illustrative guide-lines indicat ed by us, will discharge the onerous function with evermore scrupulo us care and humane concern, directed along the highroa d of legislative policy outlined in Section 354(3) viz. that for persons convicted of murder, life imprisonment is the r ule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative op tion is unquestionably foreclosed.” Following which, this Court in Machhi Singh v. State of Punjab 2classified instances of rarest of rare cases where death sentence can be justifiably imposed. In para 39, this Court laid down the following tests: - “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 whi ch renders sentence of imprisonment for life inadequate and calls for a death sentence? (b) Are the circumstances of the crime such that the re is no alternative but to impose death sentence even after accordi ng maximum weightage to the mitigating circumstances w hich speak in favour of the offender?” 11. We find that there is no particular depravity or brutality in the acts of the Appellant that warrants a classification of this case as ‘rarest of the rare’. 2 (1983) 3 SCC 470 255 12. Therefore, the sentence of death imposed by the High Court is set aside and instead the appellant shall undergo imprisonment for life. 13. The Appeals are accordingly allowed. Devika Gujral Appeals allowed. YOGENDRA @ JOGENDRA SINGH v. STATE OF MADHYA PRADESH [S. A. BOBDE, J.]