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TMI Blog2013 (1) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... in January, 2005 for which an FIR was registered against him. (b) On the date of incident, i.e., 08.01.2006, at around 06:30 p.m., when Shalu Verma-the complainant, daughter of the appellant-accused was present along with her mother-Veena Verma and sister-Geetu Verma in their house at village Partap Singh Wala, Haibowal, Ludhiana, at that time, the appellant- accused, who was living separately in a rented accommodation, came to the said place carrying a Kulhara (axe) in his hand. The complainant informed her mother about the same. When Veena Verma came to the lobby of the house, the appellant-accused gave an axe blow on her head. She fell on the ground and, thereafter, he gave two more blows using axe on her neck and hand. Immediately after that, he stepped towards Geetu Verma and gave 3 repeated blows on her head. Both of them smeared with blood and died on the spot. When he approached Shalu, she went into the room and bolted the same from inside. The appellant-accused fled away leaving the axe at the spot. After sometime, she came outside the room and raised hue and cry. (c) On the basis of the statement of Shalu (PW-2), a First Information Report (FIR) being No. 6 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be satisfied on the facts as well as the law of the case, that the conviction is right, before it proceeds to confirm that sentence. In other words, the High Court has to come to its own independent conclusion as to the guilt or innocence of the accused, independently of the opinion of the Judge. In a reference for confirmation of death sentence, the High Court must examine the entire evidence for itself independent of the Session Court s views. While confirming the capital sentence, the High Court is under an obligation to itself consider what sentence should be imposed and not be content with the trial Court s decision on the point unless some reason is shown for reducing the same. Where, in addition to an appeal filed by an accused sentenced to death, the High Court has to dispose of the reference for confirmation of death sentence under Section 366 of the Code, the High Court, while dealing with reference, should consider the proceedings in all its aspects and come to an independent conclusion on the material on record apart from the views expressed by the Sessions Judge. The confirmation of death sentence cannot be based only on the precedents and or aggravating facts and cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registered against him under Sections 323, 324 and 506 IPC which is pending in the Court of JMIC, Ludhiana on the date of alleged occurrence. iii) The appellant-accused entered into the house with a deadly weapon Kulhara (Axe) and caused unprovoked brutal attacks on the victims. iv) The appellant-accused caused repeated blows on the vital parts of the body of his wife and daughter resulting in instantaneous deaths in the presence of his youngest daughter of tender age, who by running into a room and bolting its from inside, saved herself when the accused proceeded towards her. v) The appellant-accused gave first blow to his wife Veena Verma from behind with Kulhara (axe) on her head and when she fell down on the ground he caused successive blows on her neck and the head and, thereafter, he attacked his daughter Geetu Verma and caused repeated Kulhara blows till her death. Thereafter, he proceeded towards his youngest daughter Shalu (PW-2) and showed Kulhara to her, who ran into a room and bolted it from inside. vi) In the case of the deceased - Veena Verma, out of 4 incised wounds, Injury Nos. 1 2 were caused on head, Injury No.3 on neck and Injury No. 4 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of U.P., (1998) 7 SCC 177, this Court held that brutality is not the sole criterion of determining whether a case falls under the rarest of rare categories, thereby justifying the commutation of a death sentence to life imprisonment. This Court observed: No doubt brutality looms large in the murders in this case particularly of the old and also the tender age child. It may be that the manner in which a murder was perpetrated may be a ground but not the sole criterion for judging whether the case is one of the rarest of rare cases as indicated in Bachan Singh s case. 12) The Constitution Bench of this Court, by a majority, upheld the constitutional validity of death sentence in Bachan Singh vs. State of Punjab, (1980) 2 SCC 684. This Court took particular care to say that death sentence shall not normally be awarded for the offence of murder and that it must be confined to the rarest of rare cases when the alternative option is foreclosed. In other words, the Constitution Bench did not find death sentence valid in all cases except in the aforesaid cases wherein the lesser sentence would be wholly inadequate. 13) In Machhi Singh and Ors. vs. State of Punjab, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e imposing death penalty, it is imperative to consider the same. 18) Rarest of rare dictum, as discussed above, hints at this difference between death punishment and the alternative punishment of life imprisonment. The relevant question here would be to determine whether life imprisonment as a punishment would be pointless and completely devoid of any reason in the facts and circumstances of the case. As discussed above, life imprisonment can be said to be completely futile, only when the sentencing aim of reformation can be said to be unachievable. Therefore, for satisfying the second aspect to the rarest of rare doctrine, the court will have to provide clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme. 19) Treating the case on the touchstone of the guidelines laid down in Bachan Singh (supra), Machhi Singh (supra) and other decisions and balancing the aggravating and mitigating circumstances emerging from the evidence on record, we are not persuaded to accept that the case can appropriately be called the rarest of rare case warranting death penalty. We also find it difficult to hold that the appellant is such a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es several conditions. Sub-sections (2) to (5) of Section 432 of the Code lay down basic procedure for making an application to the appropriate Government for suspension or remission of sentence either by the convict or someone on his behalf. We are of the view that exercise of power by the appropriate Government under sub-section (1) of Section 432 of the Code cannot be suo motu for the simple reason that this is only an enabling provision and the same would be possible subject to fulfillment of certain conditions. Those conditions are mentioned either in the Jail Manual or in statutory rules. This Court in various decisions has held that the power of remission cannot be exercised arbitrarily. In other words, the decision to grant remission has to be well informed, reasonable and fair to all concerned. The statutory procedure laid down in Section 432 of the Code itself provides this check on the possible misuse of power by the appropriate Government. As rightly observed by this Court in Sangeet and Anr. vs. State of Haryana, 2012 (11) Scale 140, there is misconception that a prisoner serving life sentence has an indefeasible right to release on completion of either 14 years or 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but subject to any remission granted by the appropriate Government satisfying the conditions prescribed in Section 432 of the Code and further substantiate check under Section 433-A of the Code by passing appropriate speaking orders. The appeals are disposed of on the above terms. JUDGMENT Fakkir Mohamed Ibrahim Kalifulla, J. 1. I had the opportunity of reading the judgment of my learned brother Justice P. Sathasivam who has dealt with the issue in extenso while modifying the death sentence to one of imprisonment for life i.e. till the end of his life. I only wish to supplement my views while fully endorsing and concurring with the judgment of His Lordship Justice P. Sathasivam. Since, the facts have been elaborately stated in the judgment of His Lordship Justice P. Sathasivam, I do not refer the same in detail. For the purpose of my reasoning, in toeing with the conclusion of His Lordship Justice P. Sathasivam, I only wish to refer to certain factors to support our conclusions. 2. These appeals were entertained on 20.07.2009, however, while issuing notice, the appeals were confined to sentence only. The appellant was found guilty of the offence under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting elaborate reasons as to why the case fell within the principles of rarest of rare cases for the award of death sentence and inflicted the same on him. 5. The High Court after setting out the principles laid down in the celebrated Constitution Bench decisions of this Court in Bachan Singh Vs. State of Punjab (1980) 2 SCC 684 and the subsequent judgment in Machhi Singh and others Vs. State of Punjab (1983) 3 SCC 470 held that the murder reference deserved to be accepted and the death sentence was, therefore, confirmed. The Division Bench of the High Court took into account the circumstances which are to be kept in mind for applying the rarest of the rare case theory based on the above referred two decisions and noted the same as under: I. Manner of commission of murder. II. Motive for commission of murder. Anti-social or socially abhorrent nature of the crime. Magnitude of crime Personality of victim of murder. 6. The High Court has also noted the injuries found on the body of the deceased insofar as it related to Veena Verma, the wife of the appellant, who suffered four incised wounds of which injury No. 1 was on the right lateral side and upp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Rajasthan (1996) 2 SCC 175 which was subsequently followed in six other cases, namely, Shivaji @ Dadya Shankar Alhat Vs. State of Maharashtra - (2008) 15 SCC 269, Mohan Anna Chavan Vs. State of Maharashtra - (2008) 7 SCC 561, Bantu Vs. State of Uttar Pradesh - (2008) 11 SCC 113, Surja Ram Vs. State of Rajasthan -(1996) 6 SCC 271, Dayanidhi Bisoi Vs. State of Orissa - (2003) 9 SCC 310 and State of Uttar Pradesh Vs. Sattan @ Satyendra Ors. - (2009) 4 SCC 736 wherein it was held that it is only characteristics relating to crime, to the exclusion of the ones relating to criminal, which are relevant to sentencing in criminal trial, was rendered per incuriam qua Bachan Singh (supra) in the decision reported in Santosh Kumar Satishbhushan Bariyar (supra) at 529. iv) Public opinion is difficult to fit in the rarest of rare matrix. People s perception of crime is neither an objective circumstance relating to crime nor to the criminal. Perception of public is extraneous to conviction as also sentencing, at least in capital sentencing according to the mandate of Bachan Singh (supra). (2009) 6 SCC 498 at p.535. v) Capital sentencing is one such field where the safeguar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ma when she was minor and that too after beating her. To which beastly action, unfortunately the other deceased (viz) his wife, was an eye-witness. One cannot comprehend to visualize a situation of such nature in which father himself committed rape on his own minor daughter in the presence of her own mother. The conduct of the appellant in the commission of the said offence was not only bordering on immorality of the highest order but would be extremely difficult for anyone to lightly brush aside such a conduct by stating that either it was committed in a fit of anger or rage or such other similar situation. If such grotesque offence of rape had been committed by anyone, other than the father himself, the victim would have had every opportunity to cry for solace in her father or mother. In this context, we are only reminded of the Tamil proverb ேவலிேய பயிைர ேமயநத கைத which means in English When the fence eats the crops . When the father himself happens to be the assailant in the commission of such beastly crime, one can visualize the pathetic situation in w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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