Raju Jagdish Paswan vs The State Of Maharashtra

Criminal Appeal Nos. 88-89 of 2019 (Arising out of SLP (Crl.) Nos.5422-5423 of 2013)

RAJU JAGDISH PASWAN .... Appellant(s) Versus

THE STATE OF MAHARASHTRA ….Respondent(s)

JUDGMENT

L. NAGESWARA RAO, J.

Leave granted.

1. The issue that arises in these Appeals is whether the death

penalty imposed on the Appellant is disproportionate to the

crime committed by him.

2. At 20.45 hrs on 21.06.2010, Hanmant Sheshrau Shirsat

gave a statement in the Miraj Rural Police Station that his

daughter who was 9 years old and studying in the 4 th standard at

Shri Samarth Ashram School, Bedag was missing since 10.00 am. Signature Not Verified

He stated that he could not find his daughter when he went to Digitally signed by ANITA MALHOTRA Date: 2019.01.22 17:10:30 IST Reason:

the school to bring her home at 5.15 pm on that day. He was

1 informed by her class teacher that his daughter did not come to

school. Shirsat started searching for his missing daughter.

Akash (PW-4), a boy residing behind Marguaai Temple and his

sister Pooja gave information that Shirsat’s daughter was taken

by a person wearing black pant and black shirt to the sugarcane

field ahead of Odya village. Shirsat accompanied the police in

the search for his daughter in the sugarcane field where they

found her school record book. On further inquires made in the

village, Sidram Sakharam Khade (PW-13) who owns a provision

store at Bedag informed that he spotted a person wearing black

clothes who came to his shop to buy tobacco. The villagers and

the police reached Balakrishna Poultry Farm and inquired about

the person wearing black clothes. It is relevant to state that

Shirsat is also working in Balakrishna Poultry Farm. The

Appellant initially denied any knowledge about the missing girl.

However, on further interrogation by the police, he revealed that

the girl was dragged to the nearby sugarcane field by closing her

mouth tightly to stop her from screaming. He forcibly raped her

and then pushed her into a nearby well. A search was

conducted to find the body from the well which was

2 unsuccessful. The police summoned an experienced diver Balu

Mahadeo Patil (PW-5) who took out the dead body from the well.

Shirsat identified the dead body to be that of his daughter. An

FIR was registered under Section 302, 376, 201 of the Indian

Penal Code, 1860 (hereinafter ‘IPC’). Postmortem was

conducted by PW-3 Dr. Sunil Patil and PW-9 Dr. Juber Momin.

They have stated in their evidence that froth was coming out of

the mouth of the deceased and there was nasal bleeding as well.

They found cutis anserina on both palms and sole of the feet.

They also found that the mucosa of vagina was congested and

redness present over mucosa of anus with congestion. There

was a recent complete rupture of hymen. Some sticky liquid was

coming out of the mouth of the deceased. All the injuries were

found to be ante-mortem. The Doctors deposed that there was

evidence of vaginal as well as anal intercourse. The cause of

death was stated to be drowning.

3. After examining the evidence on record, the trial court

convicted the Appellant under Sections 302, 376 (2) (f) and 201

IPC. The trial court considered the following aggravating and

3 mitigating circumstances before sentencing the Appellant :

“i. Accused was serving in the same factory where the victim's father was serving and residing in the same factory premises. ii. There is strong circumstance of accused knowing the school timing of the victim and the fact that she used to go to school alone, which is far away from factory premises. iii. The road from village to factory has less traffic. iv. The girl was taken from Marguaai Temple to the sugarcane field. The distance is approximately 1 km. v. The height of the sugarcane in the field can be seen from the photographs on record. It makes the inside things not visible from the road going nearby.

vi. Accused had natural as well as unnatural sexual intercourse with the girl, which resulted in the girl becoming unconscious. vii. Accused had pressed her mouth and nose in such a way that froth had come out of her mouth and there was nasal bleeding.

viii. Accused had then taken the girl in unconscious state to the well at a distance of 150 sq.ft. away from the place of rape and then thrown her into the well.

ix. The throwing of the girl in unconscious state in the well was with knowledge or reasonably given knowledge that death will occur. The said act was done in order to screen himself. x. There was no enmity between informant accused. xi. No reasonable ground has been shown for alleged false- implication.

xii. The defence of false implication is unbelievable and unsustainable. Informant was not any way connected to any political party, who had conducted agitation against Bihari persons.

xiii. The minor child was helpless when the accused committed the cruel act.

xiv. The girl was aged 9 years only and was innocent. xv. The girl was required to go through the torture as is evident

4 from medical evidence.

The mitigating circumstances are almost nil. If at all they are to be searched then they are-

(i) Age of the accused is 22 years.

(ii) Case rests on circumstantial evidence.”

4. By holding that the Appellant does not deserve any leniency

in view of the heinous crime committed by him, the trial court

sentenced the Appellant to be hanged by neck till his death for

an offence under Section 302 IPC. The Appellant was also

convicted for an offence punishable under Section 376(2)(f)

of IPC and sentenced for life and under Section 201 IPC for an

imprisonment of 7 years.

5. The trial court made a reference to the High Court for

confirmation of the death sentence awarded to the Appellant in

accordance with Section 366 CrPC. After re-appreciation of the

evidence on record, the High Court affirmed the conviction of the

Appellant under Sections 302, 376 (2)(f) and 201 IPC. The High

Court held that the Appellant was responsible for the horrendous

crime of rape and murder of a 9 year old girl. The High Court

observed that the Appellant threw the victim in the well while

5 she was still alive and the victim died due to drowning. By

observing that the Appellant did not show any compunction,

regret or remorse after committing a gruesome and heinous act

on a hapless child, the High Court was of the opinion that no

leniency could be shown to the Appellant. A detailed

examination of the aggravating and mitigating circumstances

was carried out by the High Court before confirming the sentence

of death imposed by the trial court for an offence under Section

302 IPC.

6. Notice was issued in this case on 08.07.2013 limited to the

sentence. We have heard the learned counsel for the Appellant

and the State on the justifiability of the sentence of death.

The learned counsel for the Appellant took us through the

evidence on record to support his submission that the entire case

rests on circumstantial evidence and the circumstances proved

do not warrant death penalty.

7. The maintenance of peace, order and security is one of the

oldest functions of the civil society. The imposition of penal

sanctions on those who have infringed the rules by which a

6 society has bound itself are a matter of legitimate interest to the

members of the society.1 Punishment is the just desert of an

offender. The society punishes not because it has the moral

right to give offenders what they deserve, but also because

punishment will yield social useful consequences: the protection

of society by incapacitating criminals, the rehabilitation of past

offenders, or the deterrence of potential wrongdoers. 2

The purposes of criminal sentencing have traditionally been said

to be retribution, deterrence and rehabilitation. To these there

may now perhaps be added: incapacitation ( i.e. putting it out of

the power of the offender to commit further offences) and the 3 maintenance of public confidence.

8. The punishment prescribed under Section 302 IPC for

committing a murder is death or imprisonment for life. This

Court in Jagmohan Singh v. State of Uttar Pradesh 4 turned

down the challenge to Section 302 IPC which prescribes the

sentence of death for murder. It became necessary for this Court 1 Tom Bingham, The Business of Judging Selected Essays & Speeches (Oxford United Press, 2005), p. 299 2 Bruce W. Gilchrist, “Disproportionality in Sentences of Imprisonment “, Columbia Law Review, Vol. 79, No.6 (Oct., 1979), pp. 1119-1167 3 Tom Bingham, The Business of Judging Selected Essays & Speeches (Oxford United Press, 2005), p. 302 4 (1973) 1 SCC 20

7 to reconsider the validity of Section 302 IPC in view of certain

findings of Justice V.R. Krishna Iyer, speaking for the majority in

Rajendra Prasad v. State of U.P. 5 being contrary to the

judgment of the Constitution Bench in Jagmohan’s case (supra). This Court in Bachan Singh v. State of Punjab6 concluded that

Section 302 providing death penalty for the offence of murder is

constitutional. Another question regarding the sentencing

procedure provided in Section 354(3) of the Code of Criminal

Procedure, 1973 (CrPC) being unconstitutional in view of the

unguided and untrammelled discretion of the court was considered

in Bachan Singh’s case (supra). According to Section 354(3)

CrPC, when the conviction is for an offence punishable with death

or, in the alternative with imprisonment for life or imprisonment for

a term of years, the judgment shall state the reasons for the

sentence awarded, and, in the case of sentence of death, the

special reasons for such sentence. It was held that imprisonment

for life shall be the normal punishment for murder according to the

changed legislative policy after introduction of Section 354(3) CrPC

and death sentence an exception. It was further held that the

sentencing discretion conferred on the courts cannot be said to be 5 (1979) 3 SCC 646 6 (1980) 2 SCC 684

8 untrammelled or unguided. The discretion has to be exercised

judiciously in accordance with well-recognized principles

crystallised by judicial decisions after balancing all the aggravating

and mitigating circumstances. What is the relative weight to be

given to the aggravating and mitigating factors depends on the

facts and circumstances of the case. More often than not, the

aggravating and mitigating factors are so intertwined that it is

difficult to give a separate treatment to each of them. 7 A planned

murder involving extreme brutality or exceptional depravity and the

murder of any member of the armed forces or police force or a

public servant were a few circumstances which were categorized as

aggravating. The age of the accused, possibility of reformation and

rehabilitation of the accused, probability that the accused would

not indulge in a criminal act in future, the extreme mental or

emotional disturbance due to which the offence was committed,

the duress or domination of another person under which the

accused committed the offence and the mental unsoundness or

incapacity were listed as some of the mitigating circumstances. Every relevant circumstance relating to the crime as well as the

criminal has to be considered before imposing a sentence of death

7 Bachan Singh (supra) ¶197, 201

9 under Section 302 IPC. This Court in Bachan Singh’s case (supra)

ultimately concluded that life imprisonment is the rule and death

sentence is an exception for persons convicted of murder. Taking a

life through law’s instrumentality can be done only in the rarest of

rare cases when the alternative option is unquestionably

foreclosed.8 The application of the rule of the rarest of

rare in Bachan Singh (supra) was considered by this Court in

Machhi Singh & Ors. v. State of Punjab9. It was held that the

manner and motive for commission of murder, magnitude of the

crime, anti-social or abhorrent nature of the crime and the

personality of the victim of murder are certain factors which have

to be taken into account for deciding whether a case would fall in

the category of the rarest of rare cases.

9. The Appellant dragged a girl of nine years into a sugarcane

field, raped her and dumped her in a well. The cause of death

according to the medical evidence was signs of recent sexual

intercourse with death due to drowning. There is no doubt that

the murder involves exceptional depravity which is one of the

aggravating circumstances. The manner of commission of the

8 Ibid.¶209 9 (1983) 3 SCC 470, ¶¶ 33-37

10 crime is extremely brutal. However, we are of the considered

opinion that the Appellant does not deserve the sentence of death

in view of the following mitigating circumstances:

a) On a thorough examination of the offence, we are unable to accept the prosecution version that the murder was committed in a pre-planned manner.

b) The Appellant was a young man aged 22 years at the time of commission of the offence.

c) There is no evidence produced by the prosecution that the Appellant has the propensity of committing further crimes, causing a continuing threat to the society.

d) The State did not bring on record any evidence to show that the Appellant cannot be reformed and rehabilitated.

10. In view of the above, we are unable to agree with the courts

below that the sentence of death is appropriate in this case.

Applying the guidelines laid down by this Court for sentencing an

accused convicted of murder and being mindful that a death

sentence can be imposed only when the alternative option is

unquestionably foreclosed, we are of the opinion that this case

does not fall within the rarest of rare cases.

11. Punishment should be proportionate to the offence. A savage

sentence is an anathema to the civilised jurisprudence

11 of Article 21.10 In Solem v. Helm11, the U.S. Supreme Court held

that the general principle of proportionality was applicable to a

sentence of imprisonment. Helm was sentenced under the

Recidivist Statute of South Dakota to undergo imprisonment for life

without possibility of parole after being found guilty of uttering a

“no account” check for US $ 100. The gravity of the offence and

the harshness of the penalty was one of the criteria to be taken into

account by the court in its proportionality analysis. Sentence of life

imprisonment awarded to Helm was found to be disproportionate to

the crime and hence prohibited under the 8 th Amendment to the

U.S. Constitution. Imposition of capital punishment for rape of an

adult woman was found to be ‘grossly disproportionate’ and a

violation of the ‘cruel and unusual punishments’ clause in Coker v.

Georgia12. In another case, the sentence of death penalty on a

participant in a felony which resulted in murder, without any inquiry

into the participant’s intention to kill, was held to be violative of the

8th Amendment to the U.S. Constitution because of

disproportionality.13 The U.S. Supreme Court treated this line of

authority as an aspect of the death penalty jurisprudence rather

10 (1983) 2 SCC 277, at 284 11 463 U.S. 277 (1983) 12 433 U.S. 584 (1977) 13 Enmund v. Florida 458 U.S. 782 (1982)

12 than a generalizable aspect of the 8 th Amendment to the

U.S. Constitution.14 Justice Scalia who delivered the plurality opinion

in Harmelin v. Michigan15 reasserted that the proportionality

review is applicable to cases involving death sentence. The

principle of proportionality has been recognized by this Court in

Vikram Singh @ Vicky v. Union of India16 wherein it was stated

that punishment must be proportionate to the nature and gravity of

offences.

12. Though imprisonment for life is a sentence for the rest of the

convict’s life, in practice, it amounted to 12 years imprisonment

prior to the introduction of Section 433-A, CrPC. After the insertion

of Section 433-A, CrPC, imprisonment for life works out to 14 years.

In Swamy Shraddananda’s case17, it was held that the court is

empowered to substitute a death sentence by life imprisonment of

a term in excess of 14 years and further directed that the convict

must not be released from the prison for the rest of his life or for

the actual term specified in the order, as the case may be. While

not endorsing the death sentence that was imposed on Swamy

Shraddananda, this Court found that since life imprisonment, 14 Rummel v. Estelle, 445 U.S. 263 (1980) 15 501 U.S. 957 (1991) 16 (2015) 9 SCC 502, ¶52.1 17 Swamy Shraddananda @ Murali v. State of Karnataka (2008) 13 SCC 767.

13 subject to remission, normally worked out to 14 years, it would be

grossly disproportionate and inadequate. The view expressed in

Swamy Shraddananda’s case (supra) was upheld in Union of

India v. Sriharan and Others18 by a Constitution Bench.

13. Though we have already expressed our view that the

Appellant does not deserve to be put to death, he is not entitled to

be released on completion of 14 years while serving life

imprisonment. The brutal sexual assault by the Appellant on the

hapless victim of nine years and the grotesque murder of the girl

compels us to hold that the release of the Appellant on completion

of 14 years of imprisonment would not be in the interest of the

society. Considering the gravity of the offence and the manner in

which it was done, we are of the opinion that the Appellant

deserves to be incarcerated for a period of 30 years. To arrive at

this conclusion, we have taken into consideration the opinion of

this Court in similar cases - Tattu Lodhi v. State of M.P.19,

Selvam v. State20, Rajkumar v. State of MP21, Neel Kumar @

Anil Kumar v. State of Haryana22, Anil @ Antony v. State of

18 (2016) 7 SCC 1 19 ( 2016) 9 SCC 675 (25 yrs) 20 (2014) 12 SCC 274 (30 yrs) 21 (2014) 5 SCC 353 (30 yrs) 22 (2012) 5 SCC 766 (30 yrs)

14 Maharashtra23.

14. In the case of Rajendra Prasad (supra), the Court had

suggested as follows:

“114. Social defence against murderers is best insured in the short run by caging them but in the long run, the real run, by transformation through re-orientation of the inner man by many methods including neuro-techniques of which we have a rich legacy. If the prison system will talk the native language, we have the yogic treasure to experiment with on high-strung, high-risk murder merchants. Neuroscience stands on the threshold of astounding discoveries. Yoga, in its many forms, seems to hold splendid answers. Meditational technology as a tool of criminology is a nascent-ancient methodology. The State must experiment. It is cheaper to hang than to heal, but Indian life — any human life — is too dear to be swung dead save in extreme circumstances.”

Taking note of the above suggestion, we asked

Mr. Katneshwarkar, learned counsel for the State of Maharashtra, as

to what steps were taken by the State for reformation and

rehabilitation of the prisoners. An affidavit signed by the Deputy

Inspector General of Prisons (Headquarters), Maharashtra was

circulated on 27.11.2018 in which it was stated that Circulars were

issued to all the Jail Superintendents to start Yoga and meditation

classes for improvement of physical and mental health of the

inmates in the penitentiaries. It was also stated that the

Maharashtra Prison Department has started a programme namely

23 (2014) 4 SCC 69 (30 yrs)

15 “Prerna Path” for which persons like Shri Ram Dev Baba and others

were invited to Yerwada Central Prison, Pune for motivating the

prisoners to participate in the programmes of Yoga. It was further

stated that the Department was encouraging the prisoners to

participate in Yoga and meditation and was even giving to prisoners

who excelled in Yoga.

15. In spite of our direction, the Government of India did not file

an affidavit regarding the status of rehabilitation of prisoners in Jails

in this country. As there was no response from the Government of

India, we did our own research to find out about the reform and

rehabilitation measures. An All India Model Prison Manual

Committee was constituted in the month of November, 2000 under

the Chairmanship of Director General of Bureau of Police Research

and Development (BPR&D) to prepare a Model Prison Law for the

superintendence and management of prisons in India in order to

maintain uniformity in the working of prisons throughout the

country. The Model Prison Manual of 2016 (“2016 Manual”) which

was approved by the Ministry of Home Affairs refers to the

education of prisoners which is vital for the overall development of

prisoners. Para 14.06 of the Chapter 14 in the 2016 Manual deals

with the nature of educational programmes which includes physical

16 education such as Yoga, health/hygiene education, moral and

spiritual education among others. We do not have any material on

record about how many States have adopted the 2016 Manual.

We direct the States to consider implementing the reformative and

rehabilitation programmes contained in the 2016 Manual.

In addition, it is open to the States to adopt any other correctional

measures.

16. Accordingly, the Appeals are partly allowed and the sentence

of death is set aside. The Appellant shall suffer an imprisonment

for a period of 30 years without remission.

..….……….............................J. [S.A.BOBDE]

….....................................…...J [L. NAGESWARA RAO]

.….........................................J [R. SUBHASH REDDY]

New Delhi, January 17, 2019.

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