Yogendra @ Jogendra Singh vs The State Of Madhya Pradesh

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL Nos. 84-85 OF 2019 [Arising out of SLP (Crl.) Nos. 3167-3168 of 2015]

Yogendra @ Jogendra Singh ...Appellant

Versus

The State of Madhya Pradesh …Respondent

JUDGMENT

S.A. BOBDE, J.

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 sections 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

Signature Not Verified fine of Rs.5000/- with default stipulations, respectively. This death Digitally signed by CHARANJEET KAUR Date: 2019.01.18 17:13:05 IST Reason: sentence has been confirmed by the High Court on a reference

under Section 366 of Cr.P.C.

Page 1 of 9 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 Appellant 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 Janu

was entitled to be compensated a sum of Rs. 3 lac and Smt.

Chandrakala 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

deceased 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.

Page 2 of 9 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 have

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.

Page 3 of 9

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 Appellant lead to the recovery of a beer bottle

which is said to have been used for carrying the acid used in the

attack. The Investigating Officer further deposed that the

fingerprints of the Appellant 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 Station 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.

Page 4 of 9 We are satisfied that the Dying Declaration of the deceased

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 PW 4; we find that the evidence of

Janu (PW 4), Smt. Chandrakala (PW 3) 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

Janu.

PW 8, Dataram the father of the deceased deposed that as

soon as he came out from his room on hearing the cries of the

deceased 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 that 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, as vehemently,

urged by the learned counsel for the State. That reason is that the

Page 5 of 9 Appellant committed this crime when he was out 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 facts

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-accused one Kiran Nurse for committing

the murder of one Laxminarayan alias 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 appellant

being disappointed in his relation with the deceased who he

believed 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 injure 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

Page 6 of 9 the deceased. It is possible that what was premeditated 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

appear to be no special reasons in the present case that warrants

an imposition of a death sentence on the Appellant. In Bachan

Singh v. State of Punjab1 this Court held as follows: -

“209. There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. “We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society.” Nonetheless, it cannot be over-

emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and Figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequency — a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guide-lines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section

1 (1980) 2 SCC 684

Page 7 of 9 354(3) viz. that for persons convicted of murder, life imprisonment is the rule 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 option is unquestionably foreclosed.”

Following which, this Court in Machhi Singh v. State of

Punjab2 classified 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 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?”

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’.

12. Therefore, the sentence of death imposed by the High Court

is set aside and instead the appellant shall undergo imprisonment

for life.

2 (1983) 3 SCC 470

Page 8 of 9

13. The Appeals are accordingly allowed.

….………………………………..J. [S.A. BOBDE]

.………………………………..J. [L. NAGESWARA RAO]

….………………………………..J. [R. SUBHASH REDDY]

NEW DELHI JANUARY 17, 2019

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