K.S.P Radhakrishnan, J.— We are, in this case, concerned with the killing of a child aged one year who was in the arms of PW 1, the grandfather, for which the accused was awarded death sentence by the trial court, which was affirmed by the High Court and these appeals have been preferred by the accused against the judgment of conviction and sentence awarded to him for the offences under Section 302 of the Penal Code, 1860 read with Section 27 of the Arms Act, 1959.
2. The prosecution case, in short, is as follows: PW 1, the complainant was standing at the grocery shop of Kamal Bansal (PW 2) on 13-12-2009 at about 8.15 p.m for purchasing some goods. He was holding his grandson, Arman, aged one year in his arms. PW 4, Jagdish, was also standing in front of the said shop. The accused Birju, resident of the same locality, known as Rustam Ka Bagicha, came out there on a motorcycle. After parking the motorcycle, he went to Babulal and questioned him as to why he was standing there. Babulal replied that he had come to purchase some kirana. While so, the appellant-accused demanded Rs 100 for consuming liquor. Babulal expressed his inability to give the money, on which, the accused abused him in the name of his mother and took out a countrymade pistol from his pocket and shot, which hit on the right temporal area of the infant Arman. The persons of the locality, which included Rakhi, daughter of the complainant, her aunt-in-law Sharda Bai and few other inhabitants of the area, reached the spot after hearing the sound. The son-in-law of the complainant, Jeevan, took Arman to the hospital and PW 1 immediately reached the police station and lodged the first information report.
3. PW 12, the Station House Officer, reached the spot and prepared a spot map (Ext. P-2) and seized the bloodstained shirt of the complainant Babulal vide seizure memo (Ext. P-3). The empty cartridge, motorcycle and used bullet were seized from the spot vide seizure memo (Ext. P-6). The inquest report (Ext. P-8) was prepared on the dead body, which was then sent for post-mortem examination. PW 10, Dr A.K Langewar conducted the post-mortem examination.
4. The accused was later nabbed and from his possession the pistol was recovered and the seized articles were sent for examination to the Forensic Science Laboratory, Tamil Nadu vide Ext. P-18A. The investigating officer recorded the statements of the witnesses and completed the investigation and the accused was charge-sheeted under Sections 302, 327 and 398 IPC and Sections 25 and 27 of the Arms Act, 1959.
5. The prosecution examined 12 witnesses and produced 19 documents and none was examined on the side of the defence.
6. As already indicated, after appreciating the oral and documentary evidence, the trial court found the accused guilty and held that the case of the accused falls under the “rarest of the rare” category and awarded capital punishment, which was affirmed by the High Court. The accused was also convicted under Section 27 of the Arms Act and was sentenced to rigorous imprisonment for three years and a fine of Rs 1000, which was also affirmed by the High Court.
7. Mr Rana Ranjit Singh, learned counsel appearing for the appellant, submitted that the case on hand is not the one which falls in the category of “the rarest of the rare” warranting capital punishment. The learned counsel pointed out that even if the entire prosecution case is accepted, the offence would be covered under Section 304 Part II IPC. The learned counsel also pointed out that the accused had no intention to kill either PW 1 or the child. The accused, at best, was under extreme mental or emotional disturbance and there will be no occasion for him to indulge in similar offence in future, and the possibility of the accused being reformed could not be ruled out. The learned counsel also submitted that the trial court and the High Court have committed an error in awarding the death sentence on the ground that the accused was involved in various other criminal cases which, according to the counsel, cannot be an aggravating factor to be taken into consideration for the purpose of awarding the death sentence.
8. Mr C.D Singh, learned counsel appearing for the State, on the other hand, pointed out that the prosecution has proved the case beyond reasonable doubt. The learned counsel referred to the evidence of PW 4 and PW 7 and stated that they were eyewitnesses to the incident and there is no reason to discard their oral evidence. The learned counsel submitted that the murder was committed in a cold-blooded manner and evidence on record clearly shows that the accused has absolutely no regard for the life or limb of others. The learned counsel also submitted that there is no probability of reformation or rehabilitation of the accused. The learned counsel also submitted that, in the instant case, Crime Test, Criminal Test and R-R test (rarest of rare test) have been fully satisfied and there is no reason to interfere with the death sentence awarded by the trial court and affirmed by the High Court.
9. PWs 1 to 4 and 7 fully and completely supported the case of the prosecution. PW 1, the grandfather of the child, PWs 2, 3, 4 and 7 have depicted an eye-to-eye picture of what transpired on the fateful day. Their version is consistent and highly reliable. The eyewitnesses' version is fully corroborated with the post-mortem and FSL reports. PW 6, of course, has been declared as hostile, but the evidence of a hostile witness cannot be discarded as a whole and the relevant parts thereof, which are admissible in law, can be used, either by the prosecution or the defence. Reference may be made to the judgment of this Court in C. Muniappan v. State of T.N (2010) 9 SCC 567
10. PW 6, in his statement under Section 164 CrPC has stated that, on the date of the incident, he heard PW 1 shouting “goli mar di”, “goli mar di”, which indicates that, to that extent, the statement supports the prosecution. The incident, as already stated, happened in front of a grocery shop at about 8.15 p.m on 13-12-2009 when PW 1 was standing in front of the grocery shop of PW 2. The accused, at that time, reached the spot and demanded Rs 100, which PW 1 refused to pay and, for that sole reason, he took out the pistol from his pocket and shot, which hit the temporal region of Arman, aged one year and he died.
11. The motive for committing the murder was evidently for getting the money to consume liquor for which, unfortunately, a child of one year became the casualty. The countrymade pistol used for committing the offence was subsequently recovered. PW 10, who conducted the post-mortem on the dead body of the child, noticed various injuries and reiterated that the bullet had pierced through the meningeal membranes and both the lobes of the brain. PW 10 doctor opined that the wound was caused by firearm and the deceased died within 24 hours of the post-mortem examination. The prosecution has successfully proved the cause of death and the use of the firearm by the accused and we fully concur with the findings of the trial court, affirmed by the High Court that offences under Section 302 IPC and Section 27 of the Arms Act, 1959, have been made out.
12. We are now concerned with the question whether the case falls under the category of “the rarest of the rare”, warranting the death sentence.
13. We have held in Shankar Kisanrao Khade v. State of Maharashtra (2013) 5 SCC 546 that even if the Crime Test and Criminal Test have been fully satisfied, to award the death sentence, the prosecution has to satisfy the R-R test. We have noticed that one of the factors which weighed with the trial court as well as the High Court to award death sentence to the accused was his criminal antecedents.
14. The High Court while dealing with the criminal antecedents of the accused stated as follows:
“14. The appellant is having criminal antecedent, which is clear from the statement of the investigating officer (PW 12) Mohan Singh in para 12, wherein he has deposed that the appellant is a notified bully in the police station concerned and as many as 24 criminal cases were registered against him by the police, out of which three cases of murder and two were attempt to commit murder. In all these cases, after investigation, the appellant was charge-sheeted for trial before the court of law. In cross-examination, this statement has been challenged by the defence. In Para 13 the only question was put to this witness that along with the charge-sheet list of criminal cases were not filed, on which the witness replied that the same is available in the case diary. After this answer, the counsel for the appellant did not ask the Court to verify this fact and also no suggestion was given to this witness that the appellant was not facing prosecution in all the abovementioned criminal cases. These facts are sufficient to hold that the appellant was fully aware about the use and consequence of the deadly weapon like pistol, and when his demand was not satisfied, he used the same intentionally to commit murder of the child Arman. The injuries show that the pistol was fired very accurately and the bullet pierced through and through at the vital part of the body i.e skull. When the appellant was using firearm for causing injury to infant Arman, he must be knowing the consequence that because of the use of such deadly weapon, there would be no chance for survival of a child aged one year.”
15. Further, the High Court also, after referring to the various cases, wherein this Court had awarded death sentence, considered the present case as the rarest of the rare one and stated as follows:
“26. In the light of aforesaid legal position for considering whether the instant case falls within the category of the rarest in the rare case, we visualise the following circumstances:
(i) The offence was not committed under the influence of extreme mental or emotional disturbance.
(ii) The appellant is a quite matured person aged about 45 years. He is neither young nor old.
(iii) Looking to his criminal antecedent i.e he was charge-sheeted for commission of 24 criminal cases, out of which 3 were under Section 302 IPC and 2 were under Section 307 IPC, therefore, there is no probability that the accused would not commit acts of violence in future and his presence in society would be a continuing threat to society.
(iv) There is no probability or possibility of reformation or rehabilitation of the appellant.
(v) In the facts and circumstances of the present case, the appellant-accused cannot morally justify the commission of murder of the child aged one year by him.
(vi) There is no direct or indirect evidence available to say that the accused acted under the duress or domination of another person.
(vii) The condition of the appellant-accused was not such, which may show that he was mentally defective and the said defect impaired his capacity to appreciate the criminality of his conduct.
(viii) It is purely a cold-blooded murder and evidence on record clearly showing the fact that the appellant has absolutely no regard for the life and limb of others.”
16. One of the factors which weighed with the High Court to affirm the death sentence was that the accused was charge-sheeted for commissioning of 24 criminal cases, out of which three were under Section 302 IPC and two were under Section 307 IPC, consequently, the Court held that there was no probability that the accused would not commit the act of violence in future and his presence would be a continuing threat to the society. The Court also took the view that there was no possibility or probability of reformation or rehabilitation of the accused.
17. We have in Shankar Kisanrao Khade case (2013) 5 SCC 546 dealt with the question as to whether the previous criminal record of the accused would be an aggravating circumstance to be taken note of while awarding death sentence and held that the mere pendency of few criminal cases, as such, is not an aggravating circumstance to be taken note of while awarding death sentence, since the accused is not found guilty and convicted in those cases. In the instant case, it was stated, that the accused was involved in 24 criminal cases, out of which three were registered against the accused for murder and two cases of attempting to commit murder and, in all those cases, the accused was charge-sheeted for trial before the court of law. No materials have been produced before us to show that the accused stood convicted in any of those cases. The accused has only been charge-sheeted and not convicted, hence, that factor is not a relevant factor to be taken note of while applying the R-R test so as to award capital punishment. Maybe, in a given case, the pendency of large number of criminal cases against the accused person might be a factor which could be taken note of in awarding a sentence but, in any case, not a relevant factor for awarding capital punishment. True, when there are more than two dozen cases, of which three relate to the offence of murder, the usual plea of false implication by the defence has to be put on the back seat, and may have an impact on the sentencing policy, since the presence of the accused could be a continuing threat to the society and hence calls for longer period of incarceration.
18. We also notice, while laying down various criteria for determining the aggravating circumstances, two aspects, often seen referred to in Bachan Singh v. State of Punjab (1980) 2 SCC 684, Machhi Singh v. State of Punjab (1983) 3 SCC 470 and Rajendra Pralhadrao Wasnik v. State of Maharashtra (2012) 4 SCC 37, are (1) the offences relating to the commission of heinous crime 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 conviction; and (2) the offence was committed while the offender was engaged in the commission of another serious offence. The first criterion may be a relevant factor while applying the R-R test, provided the offences relating to heinous crimes like murder, rape, dacoity, etc. have ended in conviction.
19. We may first examine whether “substantial history of serious assaults and criminal conviction” is an aggravating circumstance when the court is dealing with the offences relating to the heinous crimes like murder, rape, armed dacoity, etc. Prior record of the conviction, in our view, will be a relevant factor, but that conviction should have attained finality so as to treat it as aggravating circumstance for awarding death sentence. The second aspect deals with a situation where an offence was committed, while the offender was engaged in the commission of another serious offence. This is a situation where the accused is engaged in the commission of another serious offence which has not ended in conviction and attained finality.
20. In the instant case, the High Court took the view that there was no probability that the accused would not commit criminal acts of violence and would constitute a continuing threat to the society and there would be no probability that the accused could be reformed or rehabilitated. In Shankar Kisanrao Khade case (2013) 5 SCC 546, while dealing with the Criminal Test (mitigating circumstances), this Court noticed one of the circumstances to be considered by the trial court, while applying the test, is with regard to the chances of the accused not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated. We find, in several cases, the trial court while applying the Criminal Test, without any material on hand, either will hold that there would be no possibility of the accused indulging in commission of crime or that he would indulge in such offences in future and, therefore, it would not be possible to reform or rehabilitate him. Courts used to apply reformative theory in certain minor offences and while convicting persons, the courts sometimes release the accused on probation in terms of Section 360 CrPC and Sections 3 and 4 of the Probation of Offenders Act, 1958. Sections 13 and 14 of the Act provide for appointment of Probation Officers and the nature of duties to be performed. Courts also, while exercising power under Section 4, call for a report from the Probation Officer. In our view, while awarding sentence, in appropriate cases, while hearing the accused under Section 235(2) CrPC, courts can also call for a report from the Probation Officer, while applying the Criminal Test Guideline 3, as laid down in Shankar Kisanrao Khade case (2013) 5 SCC 546. Courts can then examine whether the accused is likely to indulge in commission of any crime or there is any probability of the accused being reformed and rehabilitated.
21. We have no doubt in our mind that the accused had the full knowledge, if he fires the shot on the temporal area, that is, between the forehead and the ear, it would result in the death of the child of one year who was in the arms of PW 1. The appellant, of course, demanded Rs 100 from PW 1, which he refused and then he took out the pistol and fired at the right temporal area of the child, as retaliation of not meeting his demand and there is nothing to show that, at the time of the incident, he was under the influence of liquor. Consequently, while affirming the conviction, we are not prepared to say that it is the rarest of the rare case, warranting capital punishment. We, therefore, set aside the death sentence awarded by the trial court and affirmed by the High Court, and convert the same to imprisonment for life.
22. We are, however, of the view that this is a fit case where we can apply the principle laid down in Swamy Shraddananda (2) v. State of Karnataka (2008) 13 SCC 767. In that case, this Court took the view that there is a third category of cases in which Court can, while awarding the sentence of imprisonment for life, fix a term of imprisonment of 14 or 20 years (with or without remission) instead of death penalty and can, in appropriate cases, order that the sentences would run consecutively and not concurrently. The above sentencing policy has been adopted by this Court in several cases since then, the latest being Gurvail Singh v. State of Punjab (2013) 10 SCC 631. We have indicated that this a case where the accused is involved in twenty-four criminal cases, of which three are for the offence of murder and two are for attempting to commit murder. In such circumstances, if the appellant is given a lesser punishment and let free, he would be a menace to the society.
23. We are of the view that this is a fit case where 20 years of rigorous imprisonment, without remission, to the appellant, over the period which he has already undergone, would be an adequate sentence and will render substantial justice. Ordered accordingly.
24. The appeals stand disposed of as above.