Tuesday, December 18, 2012

Syllabus | HCS (Judicial Branch) | Haryana Civil Judge (Junior Division) Exam

Syllabus
Haryana Civil Service (Judicial Branch) Examination

It is three stage examination.
(A) Preliminary Examination
(B) Main (Written Type)
(C) Personality Test (Interview)

Syllabus for Preliminary Examination


Preliminary Examination shall be of objective type multiple choice (which can be scrutinized by computer) as distinguished from the Written Examination which shall be subjective/ narrative type.
 
The question paper for Preliminary Examination shall be of two hours duration. It shall consist of 125 questions and each question shall carry 04 marks and for every wrong answer 0.20% i.e. 1/5th mark shall be deducted.
 
The objective type multiple-choice question for the Preliminary Examination shall be from the syllabus for the Main Examination. The candidate shall be expected to have a general and basic over view of the main subjects and also the ability to answer questions on current events of national and international importance, Indian legal and constitutional history and governance. The candidate shall also be tested for his analytical skills and aptitude. The standard of the question paper shall be of Law graduate level. The object of the Preliminary Examination is to short list candidates for the Main Examination.


Syllabus for Main (Written) Examination

It consists of five papers:

(1) Law Paper I i.e. Civil Law I (200 marks)
It will cover the following topics-
  1. Code of Civil procedure
  2. Punjab Courts Act
  3. Indian Contract Act
  4. Indian partnership Act
  5. Sale of Goods Act
  6. Specific Relief Act
  7. Indian Evidence Act
(2) Law Paper II i.e. Civil Law II (200 marks)
It will cover the following topics-
  1. Hindu Law
  2. Mohammadan Law and Customary Law
  3. Law of Registration
  4. Law of Limitation
(3) Law Paper III i.e. Criminal Law (200 marks)
It will cover the following topics-
  1. Indian Penal Code
  2. Criminal Procedure Code
  3. Indian Evidence Act
(4) Paper IV English (200 marks)
  1. English Essay (1000-1100 words) (100 marks)
  2. Precis (25 marks)
  3. Words and Phrases (Make sentences of the given words and Phrases) (25 marks)
  4. Comprehension (25 marks)
  5. Corrections (25 marks)
(5) Paper V Language (100 marks)
Hindi (in Devnagri Script)
Language paper (v) shall comprise the following:-
  1. Translation of an English passage into Hindi (20 marks)
  2. Explanation of Hindi passage in prose and poetry in the same language (30 marks)
  3. Composition (essay), idioms and corrections (50 marks)
Viva-Voce (Interview) (200 marks)
To judge the personal qualities of the candidates. The viva-voce shall relate to the matters of general interest and is intended to test the candidates’ alertness, intelligence and general outlook. it shall be conducted in English.


Disclaimer: Author has tried his best to provide syllabus that is true and accurate as of the date of writing; however, all the syllabii on the the present blog should be double checked for their accuracy and current applicability. For details click here.

Recruitment | HCS (Judicial Branch) 2013

Haryana Public Service Commission
[Advertisement No. 3 / 2012]

H.C.S (Judicial Branch) Examination 2012


The Haryana Public Service Commission invites applications from eligible candidates for the posts of Civil Judge (Junior Division) in the Haryana Civil Service (Judicial Branch).
 
Name of Post: Civil Judge (Junior Division)
No. of Posts: 72 posts (52 actual posts and 20 anticipated posts)
Pay-Scale: Rs. 27,700 - 44,770

Age Limit: Candidate should not be less than 21 years and not more than 40 years as on 17.01.2013.
Eligibility: No person shall be eligible to be appointed a Civil Judge (Junior Division) unless he holds a degree of Bachelor of Laws from a University established by the law and approved/recognized by the Bar Council of India. The candidate should hold a degree of Bachelor of Law on the last date of receipt of application form i.e. 17.01.2013.

Last Date: 17.01.2013 
For more details visit the official website of Haryana Public Service Commission at-
http://hpsc.gov.in/Advertisement/Advertisement%20No.%203%20of%202012.pdf

Recruitment | Assistant Registrar (from legal profession) | High Court of Calcutta


High Court at Calcutta, Original Side
[Advertisement Reference – HCOS/AR/2012]

Applications are invited from Indian Citizens for filling up of vacancies on the Original Side of this Hon’ble Court against respective permanent vacancies:

Name of Post: Assistant Registrar
No. of Posts: 02
Pay-Scale: Rs.15,600-42,000

Minimum Qualifications:The candidate must be a Law Graduate and a Practising Advocate having knowledge of the vernacular of the State of West Bengal and should be well versed in Law including the High Court Original Side Rules, Procedural Laws, English and General Knowledge.
Age Limit: Age of the candidate applying for the above mentioned post should not be more than 32 years of age on the last date of submission of applications (Relaxtion for Reserved Categories).

Last Date: 15th January, 2013

For Further Details, visit the link below-
http://calcuttahighcourt.nic.in/Recruitments/pdf_files/notice_ar_os_181212.pdf

Supreme Court of India | LAHU KAMLAKAR PATIL AND ANR Vs. STATE OF MAHARASHTRA

Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 114 of 2008
Lahu Kamlakar Patil and Anr. ….. Appellants
Versus
State of Maharashtra … Respondent
J U D G M E N T
Dipak Misra, J.
The present appeal has been preferred by original
accused Nos. 2 and 3 assailing the judgment of conviction
and order of sentence passed by the High Court of Judicature
at Bombay in Criminal Appeal No. 790 of 1989 whereby the
High Court has confirmed the conviction and sentence
Page 2
passed by the learned Additional Sessions Judge, Raigad,
Alibag in Sessions Case No. 113 of 1988 for offences
punishable under Sections 302, 147, 148, 149 and 452 of the
Indian Penal Code, 1860 (for short “the I.P.C.”) and
sentenced the appellants to suffer life imprisonment and pay
a fine of Rs.1,000/- each, in default, to suffer simple
imprisonment for six months.
2. Filtering the unnecessary details, the prosecution case
is that on 19.2.1988, PW-1, Chandrakant Phunde, the
informant, who is the owner of a rickshaw bearing No.
MCT-858, while going from Somatane to Panvel for his
business, met PW-2, Janardan Bhonkar, who hired his
rickshaw for Panvel. On the way, they met the
deceased Shriram @ Bhau Harishchandra Patil who
wanted to go in the rickshaw and with the consent of
Janardan, the three of them proceeded towards Panvel.
The deceased, Bhau Harishchandra Patil, went to
Gemini Tailors to pick up his stitched clothes at Palaspe
Phata and thereafter they stopped near Milan Hotel to
have some snacks. As the prosecution story proceeds,
2
Page 3
when they were inside the hotel, 10 to 15 people
entered inside being armed with swords, iron bars and
sticks. As alleged, Lahu Kamlakar Patil, the appellant
No. 1, had an iron bar and appellant No. 2, Bali Ram,
had a sword. Bali Ram and Lahu assaulted the
deceased on his head with their respective weapons
and the other accused persons also assaulted him.
Janardan tried to resist and got hit on his right hand
finger due to the blow inflicted by the sword. As there
was commotion in the hotel, people ran hither and
thither, and PW-2, Janardan, also took the escape route.
After the assault, the accused persons ran away and
Bhau was left lying there in the hotel in a pool of blood.
3. As the facts are further unfurled, Chandrakant Phunde
went to the police station, lodged an F.I.R. and handed
over the stitched clothes of the deceased which were in
the rickshaw to the police. On the basis of the F.I.R., a
case under Sections 147, 148, 149, 302 and 452 of the
I.P.C. was registered and the criminal law was set in
motion. In the course of investigation, the investigating
3
Page 4
agency got the autopsy conduted, seized the weapons,
prepared the `panchnama’, examined the witnesses
under Section 161 of the Code of Criminal Procedure,
1973 (for short “the Code”) and arrested six accused
persons including the present appellants. After
completing the investigation, the investigating agency
placed the charge-sheet before the competent Court
who, in turn, committed the matter to the Court of
Session and, eventually, it was tried by the learned
Additional Sessions Judge, Raigad Alibag.
4. The accused persons abjured their guilt and pleaded
false implication and, hence, faced trial.
5. In order to prove its case, the prosecution examined
nine witnesses; PW-1, Chandrakant Phunde, the
informant, PW-2, Janardan Bhonkar, who was an eyewitness
to the occurrence, PW-3, Shantaram Jadhav,
from whom the accused persons had made enquires
relating to the whereabouts of the deceased, PW-4,
Baburao Patil, father of the deceased, PW-5, Prakash
4
Page 5
Patil, a post-occurrence witness who had reached Hotel
Milan to find that Bhau was lying in a pool of blood,
PW-6, the Inspector who had registered the complaint
of PW-1, PW-7, Dyaneshwar Patil, a panch witness who
has proven the blood-stained clothes and the iron bar,
PW-8, Eknath Kamble, and PW-9, Shrirang Wahulkar,
the two other panch witnesses who have been declared
hostile.
6. The defence chose not to adduce any evidence.
7. The learned trial Judge, after scrutiny of the evidence,
found that the prosecution had been able to prove the
case against the present appellants and, accordingly,
convicted them for the offences and imposed the
sentence as has been stated hereinbefore. As far as
the other accused persons are concerned, he did not
find them guilty and, accordingly, recorded an order of
acquittal in their favour.
8. The convicted-accused persons assailed their conviction
by filing an appeal and the High Court, placing reliance
5
Page 6
on the seizure memoranda, namely, Exhibits P-25, 26,
35 and 36 and accepting the credibility of the testimony
of PW-2 and a part of the evidence of PW-1, the
informant, who had turned hostile, affirmed the
conviction and the sentence.
9. We have heard Mr. K.N. Rai, learned counsel for the
appellants, and Mr. Sanjay V. Kharde, learned counsel
for the respondent.
10. Mr. Rai, learned counsel for the appellants, criticizing
the judgment of conviction passed by the High Court,
submitted that when the version of PWs-3 to 5 have not
been given credence, the evidence of PW-1 and PW-2
should not have been relied upon by the trial court as
well as by the High Court and due to such reliance, the
decision is vitiated. It is urged by him that when the
informant had turned hostile, the F.I.R. could not have
been relied upon as a piece of substantial evidence
corroborating the testimony of PW-2, the alleged eyewitness.
It is vehemently canvassed by him that the
6
Page 7
conviction has been rested on the testimony of PW-2
who has claimed to be the eye-witness though his
version is totally unreliable because of his unnatural
conduct and his non-availability for examination by the
police which is not founded on any ground. It is urged
by him that the Investigating Officer had not been
examined as a consequence of which prejudice has
been caused to the appellants. That apart, the seizure
of weapons has not been established since the panch
witnesses have turned hostile and the High Court has
relied upon the discovery made at the instance of
accused No. 1 who has been acquitted. The last plank
of argument of the learned counsel for the appellants is
that the conviction is recorded on the basis of
assumptions without material on record to convict the
appellants.
11. Mr. Kharde, learned counsel for the State, supporting
the judgment of conviction, contended that though the
informant had turned hostile, yet his evidence cannot
be totally discarded as it is well settled in law that the
7
Page 8
same can be relied upon by the prosecution as well as
by the defence. It is his further submission that the
evidence of PW-1, Chandrakant Phunde, clearly proves
the first part of the incident and what he has stated in
the examination-in-chief cannot be disregarded. It is
urged by him that once that part of the testimony is
accepted, the deposition of PW-2, the eyewitness to the
incident gains acceptation as he has vividly described
the incident and the assault. Learned counsel would
further submit that the minor contradictions and
discrepancies do not make his deposition unreliable.
12. At the very outset, we may state that the learned trial
Judge had placed reliance on the evidence of PWs-3 to
5, but the High Court has not accepted their version
and affirmed the conviction on the basis of the
testimony of PWs-1 and 2 and other circumstances.
Therefore, the evidence of the witnesses which are
required to be considered is that of PWs-1 and 2 and
their intrinsic worth.
8
Page 9
13. PW-1, the informant, has stated in the examination-inchief
that the deceased had taken PW-2, Janardan
Bhonkar, to the tailor’s shop and, eventually, took Bhau
to Milan Hotel where he waited outside in the rickshaw.
He has also deposed that he was asked to come inside
the hotel and while he was having water, 8-10 boys
arrived there and started assaulting the deceased.
Seeing the assault, he got scared and ran away. After
deposing to that effect, he has stated that he had not
seen anything and he was taken to the police station
and his signature was taken on the complaint which
was not shown to him. After being declared hostile, in
the cross-examination he has denied the contents of
the F.I.R. and has deposed that he came to know that
Bhau had been murdered.
14. In the cross-examination by one of the accused, he has
stated that he was brought to the police station in a
drunken state and kept in the police station till 10.00
a.m. the next day. The trial court as well as the High
Court has accepted his version in the examination-in-
9
Page 10
chief to the extent that he had taken the deceased and
PW-2 to the tailor’s shop and thereafter to the hotel and
further that he had seen 8-10 boys entering the hotel
and assaulting the deceased.
15. The learned counsel for the appellants submitted that
the whole evidence of PW-1 is to be discarded
inasmuch as he has clearly stated that he has not seen
anything and his signature was taken on the blank
paper. In any case, he has not deposed anything about
the assailants except stating that 8-10 boys came and
assaulted. Emphasis had been laid that the informant
having been declared hostile, the whole case of the
prosecution story collapses like a pack of cards. Thus,
emphasis is on the aspect that once a witness is
declared hostile, that too in the present circumstances,
his testimony cannot be relied upon by the prosecution.
16. It is settled in law that the evidence of a hostile witness
is not to be rejected in toto. In Rameshbhai Mohanbhai
1
Page 11
Koli and Others v. State of Gujarat1, reiterating the
principle, this Court has stated thus:-
“16. It is settled legal proposition that
the evidence of a prosecution witness
cannot be rejected in toto merely
because the prosecution chose to treat
him as hostile and cross-examined him.
The evidence of such witnesses cannot
be treated as effaced or washed off the
record altogether but the same can be
accepted to the extent that their
version is found to be dependable on a
careful scrutiny thereof. (Vide Bhagwan
Singh v. State of Haryana2, Rabindra
Kumar Dey v. State of Orissa3, Syad
Akbar v. State of Karnataka4 and Khujji
v. State of M.P.5)
17. In State of U.P. v. Ramesh Prasad
Misra6 this Court held that evidence
of a hostile witness would not be
totally rejected if spoken in favour of
the prosecution or the accused but
required to be subjected to close
scrutiny and that portion of the
evidence which is consistent with
the case of the prosecution or
defence can be relied upon. A
similar view has been reiterated by
this Court in Balu Sonba Shinde v.
State of Maharashtra7, Gagan
1 (2011) 11 SCC 111
2 (1976) 1 SCC 389
3 (1976) 4 SCC 233
4 (1980) 1 SCC 30
5 (1991) 3 SCC 627
6 (1996) 10 SCC 360
7 (2002) 7 SCC 543
1
Page 12
Kanojia v. State of Punjab8, Radha
Mohan Singh v. State of U.P.9,
Sarvesh Narain Shukla v. Daroga
Singh10 and Subbu Singh v. State11.”
17. Recently, in Bhajju alias Karan Singh v. State of
Madhya Pradesh12, a two-Judge Bench, in the context of
consideration of the version of a hostile witness, has
expressed thus: -
“Normally, when a witness deposes
contrary to the stand of the prosecution
and his own statement recorded under
Section 161 CrPC, the prosecutor, with
the permission of the court, can pray to
the court for declaring that witness
hostile and for granting leave to crossexamine
the said witness. If such a
permission is granted by the court then
the witness is subjected to crossexamination
by the prosecutor as well
as an opportunity is provided to the
defence to cross-examine such
witnesses, if he so desires. In other
words, there is a limited examination-inchief,
cross-examination by the
prosecutor and cross-examination by
the counsel for the accused. It is
admissible to use the examination-inchief
as well as the cross-examination of
8 (2006) 13 SCC 516
9 (2006) 2 SCC 450
10 (2007) 13 SCC 360
11 (2009) 6 SCC 462
12 (2012) 4 SCC 327
1
Page 13
the said witness insofar as it supports
the case of the prosecution.”
[Emphasis
added]
18. In the case of Sidhartha Vashisht alias Manu
Sharma v. State (NCT of Delhi)13, while discussing about
the evidence of a witness who turned hostile, the Bench
observed that his evidence to the effect of the presence of
accused at the scene of the offence was acceptable and the
prosecution could definitely rely upon the same.
19. Keeping in view the aforesaid position of law, the
testimony of PW 1 has to be appreciated. He has admitted
his signature in the F.I.R. but has given the excuse that it
was taken on a blank paper. The same could have been
clarified by the Investigating Officer, but for some reason,
the Investigating Officer has not been examined by the
prosecution. It is an accepted principle that nonexamination
of the Investigating Officer is not fatal to the
prosecution case. In Behari Prasad v. State of Bihar14,
13 (2010) 6 SCC 1
14 (1996) 2 SCC 317
1
Page 14
this Court has stated that non-examination of the
Investigating Officer is not fatal to the prosecution case,
especially, when no prejudice is likely to be suffered by the
accused. In Bahadur Naik v. State of Bihar15, it has been
opined that when no material contradictions have been
brought out, then non-examination of the Investigating
Officer as a witness for the prosecution is of no consequence
and under such circumstances, no prejudice is caused to the
accused. It is worthy to note that neither the trial judge nor
the High Court has delved into the issue of non-examination
of the Investigating Officer. On a perusal of the entire
material brought on record, we find that no explanation has
been offered. The present case is one where we are inclined
to think so especially when the informant has stated that the
signature was taken while he was in a drunken state, the
panch witness had turned hostile and some of the evidence
adduced in the court did not find place in the statement
recorded under Section 161 of the Code. Thus, this Court in
Arvind Singh v. State of Bihar16, Rattanlal v. State of
15 (2000) 9 SCC 153
16 (2001) 6 SCC 407
1
Page 15
Jammu and Kashmir17 and Ravishwar Manjhi and
others v. State of Jharkhand18, has explained certain
circumstances where the examination of Investigating
Officer becomes vital. We are disposed to think that the
present case is one where the Investigating Officer should
have been examined and his non-examination creates a
lacuna in the case of the prosecution.
20. Having stated that, we may proceed to analyse his
evidence. He has supported the prosecution story but to the
point of assault and thereafter he has resiled from his
version. The submission of the learned counsel for the State
is that to such extent his testimony deserves acceptance.
Even if the said submission is accepted, it only goes to the
extent of proving that PWs-1 and 2 and the deceased had
travelled in a rickshaw, went to the tailor’s shop, entered
inside the Milan Hotel and some boys came inside the hotel
and started assaulting the deceased. PW-1 had not named
any assailant in the court to support the version of the FIR.
On a scanning of the evidence, we find that he had stated
17 (2007) 13 SCC 18
18 (2008) 16 SCC 561
1
Page 16
that he had run away from the scene of assault and,
therefore, his testimony does not, in any way, establish the
involvement of the appellants in crime.
21. On a scrutiny of the entire material on record, we find
that the conviction is based on the testimony of the sole
eyewitness, PW-2. True it is, corroboration to the extent of
going to Milan Hotel is there from the testimony of PW-1, but
the question remains whether the conviction can be
sustained if the version of PW-2 is not accepted. The learned
counsel for the appellants has seriously challenged the
reliability and trustworthiness of the said witness, PW-2, who
has been cited as an eyewitness.
22. The attack is based on the grounds, namely, that the
said witness ran away from the spot; that he did not intimate
the police about the incident but, on the contrary, hid
himself behind the pipes near a canal till early morning of
the next day; that though he claimed to be eye witness, yet
he did not come to the spot when the police arrived and was
there for more than three hours; that contrary to normal
1
Page 17
human behaviour he went to Pune without informing about
the incident to his wife and stayed for one day; that though
the police station was hardly one furlong away yet he did not
approach the police; that he chose not even to inform the
police on the telephone though he arrived at home; that
after he came from Pune and learnt from his wife that the
police had come on 21.2.1988, he went to the police station;
and that in the backdrop of such conduct, his version does
not inspire confidence and deserves to be ignored in toto.
23. From the aforesaid grounds, the primary attack of the
learned counsel for the appellants is that there has been
delay in the examination of the said witness and he has
contributed for such delay and, hence, his testimony should
be discredited. In Mohd. Khalid v. State of W.B.19, a
contention was raised that three witnesses, namely, PWs-40,
67 and 68, could not be termed to be reliable. Such a
contention was advanced as regards PW-68 that there had
been delay in his examination. The Court observed that
mere delay in examination of the witnesses for a few days
19 (2002) 7 SCC 334
1
Page 18
cannot in all cases be termed fatal so far as prosecution is
concerned. There may be several reasons and when the
delay is explained, whatever the length of delay, the court
can act on the testimony of the witnesses, if it is found to be
cogent and credible. On behalf of the prosecution, it was
urged that PW-68 was attending to the injured persons and
taking them to the hospital. Though there was noting in the
medical reports that unknown persons had brought them,
yet the court did not discard the evidence of PW-68 therein
on the foundation that when an incident of such great
magnitude takes place and injured persons are brought to
the hospital for treatment, it is the foremost duty of the
doctors and other members of the staff to provide
immediate treatment and not to go about collecting
information, though that would be contrary to the normal
human conduct. Thus, emphasis was laid on the
circumstance and the conduct.
24. In Gopal Singh and others v. State of Madhya
Pradesh20, this Court had overturned the judgment of the
20 (2010) 6 SCC 407
1
Page 19
High Court as it had accepted the statement of an
eyewitness of the evidence ignoring the fact that his
behaviour was unnatural as he claimed to have rushed to
the village but had still not conveyed the information about
the incident to his parents and others present there and had
chosen to disappear for a couple of hours on the spacious
and unacceptable plea that he feared for his own safety.
25. In Alil Mollah and another v. State of W.B.21, an
eyewitness, who was employee of the deceased, witnessed
the assault on the employer but did not go near the
employer even after the assailants had fled away to see the
condition in which the employer was after having suffered
the assault. His plea was that he was frightened and fled
away to his home. He had admitted in his cross-examination
that he neither disclosed at his home nor in his village as to
what he had seen in the evening when the incident occurred.
He gave the information to the police only after 2-3 days.
The plea of being frightened and not picking up courage to
21 (1996) 5 SCC 369
1
Page 20
inform anyone in the village or elsewhere was not accepted
by this Court.
26. From the aforesaid pronouncements, it is vivid that
witnesses to certain crimes may run away from the scene
and may also leave the place due to fear and if there is any
delay in their examination, the testimony should not be
discarded. That apart, a court has to keep in mind that
different witnesses react differently under different
situations. Some witnesses get a shock, some become
perplexed, some start wailing and some run away from the
scene and yet some who have the courage and conviction
come forward either to lodge an FIR or get themselves
examined immediately. Thus, it differs from individuals to
individuals. There cannot be uniformity in human reaction.
While the said principle has to be kept in mind, it is also to
be borne in mind that if the conduct of the witness is so
unnatural and is not in accord with acceptable human
behaviour allowing of variations, then his testimony
becomes questionable and is likely to be discarded.
2
Page 21
27. Keeping in mind the aforesaid, we shall proceed to
scrutinize the evidence of PW-2. As is evincible from his
deposition, on seeing the assault he got scared, ran away
from the hotel and hid himself behind the pipes till early
morning. He went home, changed his clothes and rushed to
Pune. He did not mention about the incident to his family
members. He left for Pune and the reason for the same was
also not stated to his family members. He did not try to
contact the police from his residence which he could have.
After his arrival at Pune, he did not mention about the
incident in his sister-in-law’s house. After coming back from
Pune, on the third day of the occurrence, his wife informed
that the police had come and that Bhau, who had
accompanied him, was dead. It is interesting to note that in
the statement under Section 161 of the Code, he had not
stated that he was hiding himself out of fear or he was
scared of the police. In the said statement, the fact that he
was informed by his wife that Bhau was dead was also not
mentioned. One thing is clear from his testimony that
seeing the incident, he was scared and frightened and ran
2
Page 22
away from the hotel. He was frightened and hid himself
behind the pipes throughout the night and left for home the
next morning. But his conduct not to inform his wife or any
family member and leaving for Pune and not telling anyone
there defies normal human behaviour. He has also not
stated anywhere that he was so scared that even after he
reached home, he did not go to the police station which was
hardly at any distance from his house. There is nothing in
his testimony that he was under any kind of fear or shock
when he arrived at his house. It is also surprising that he
had not told his family members and he went to Pune
without disclosing the reason and after he arrived from Pune
and on being informed by his wife that his companion Bhau
had died, he went to the police station. We are not oblivious
of the fact that certain witnesses in certain circumstances
may be frightened and behave in a different manner and due
to that, they may make themselves available to the police
belatedly and their examination gets delayed. But in the
case at hand, regard being had to the evidence brought on
record and, especially, non-mentioning of any kind of
2
Page 23
explanation for rushing away to Pune, the said factors make
the veracity of his version doubtful. His evidence cannot be
treated as so trustworthy and unimpeachable to record a
conviction against the appellants. The learned trial court as
well as the High Court has made an endeavour to connect
the links and inject theories like fear, behavioural pattern,
tallying of injuries inflicted on the deceased with the Post
Mortem report and convicted the appellants. In the absence
of any kind of clinching evidence to connect the appellants
with the crime, we are disposed to think that it would not be
appropriate to sustain the conviction.
28. In the result, the appeal is allowed. The judgment of
conviction and sentence recorded by the learned Sessions
Judge and affirmed by the High Court is set aside and the
appellants be set at liberty forthwith unless their detention is
required in connection with any other case.
……………………………….J.
[K. S. Radhakrishnan]
2
Page 24
New Delhi;
……………………………….J.
December 14, 2012 [Dipak Misra]
2

Source: Supreme Court of India

Supreme Court of India | OMA @ Omprakash & Anr. Vs. State of Tamil Nadu

Page 1
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 143 OF 2007
OMA @ Omprakash & Anr. .. Appellant(s)
Versus
State of Tamil Nadu ..
Respondent(s)
J U D G M E N T
K. S. Radhakrishnan, J.
1. Appellants, herein, were awarded death sentence by the trial
court after having found them guilty under Sections 395, 396 and
397 of Indian Penal Code (for short ‘IPC’). They were sentenced
to death by hanging under subsection 5 of Section 354 of Criminal
Procedure Code for offences committed under Section 396 IPC.
The trial court after noticing that, the accused persons came from
a State about 2000 k.m. away from Tamil Nadu, held as follows:
Page 2
2
“In this case, the accused came from a state about
2000 k.m. from our state and they did not think that
the victims were also human like them but they
thought only about the well being of their family and
their own life and committed the fear of death
amongst the common public of our state by
committing robbery and murder for about 11 years.
Therefore, this court is of the opinion that the death
sentence that would be imposed on them would
create a fear amongst the criminals who commit
such crime and further this case is a rarest of rare
case that calls for the imposition of death sentence.”
2. We have noticed that the trial Court, among other grounds,
was also influenced by a speech made by the then Chief Justice of
Tamil Nadu as well as a judgment delivered by another learned
Judge of Madras High Court on rowdy panchayat system.
Following that judgment and the provision under Section 396 IPC,
the trial court held that the accused deserves no sympathy and
he be sent to the gallows.
3. The trial court then placed the matter before the Madras
High Court for confirmation of the death sentence awarded to the
accused persons. Meanwhile, the accused persons also preferred
criminal appeal No. 566 of 2006 against the award of death
sentence. The appeal was partly allowed and conviction against
Page 3
3
Accused Nos. 1 and 2 under Sections 395, 396 and 397 IPC were
confirmed but the sentence under Section 396 IPC was modified
to that of life imprisonment instead of death sentence. Against
which, accused Nos. 1 and 2 came up with this appeal. While this
appeal was pending, the first appellant (A1) died and the second
appellant (A2) has prosecuted this appeal.
4. The prosecution case is as follows:
The appellants and nine other absconding accused persons
entered the house of one Lakshmi (PW 2) at 1 O’ clock in the
night of 07.06.1995 with the intention of committing burglary with
iron rods in their hands and burgled 17 tolas of gold and
Rs.5,000/- in cash. In that process, it was alleged that they had
strangulated Doctor Mohan Kumar, husband of PW 2 with a rope
and thereby killed him. It was alleged that the accused assaulted
PW 2, her son Sudhakar (PW 5) and other son Sakthivel (PW 6).
While escaping, they had also attacked Bormin Varghese (PW 1)
with iron rod. FIR Cr. No. 403 of 1995 under Sections 396, 397
IPC was registered at 5.30 am on 07.06.1995 at Police Station
Walajapet on the statement of one Patrick Varghese recorded by
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4
PW 7. Post Mortem of the deceased was conducted at 2.30 p.m.
on 07.06.1995.
5. The prosecution could not nab the accused persons for over
ten years. A2 was arrested on 26.02.2005 in connection with
some other case in Cr. No. 59 of 1996. It is the prosecution case
that his finger prints tallied with the ones lifted from the place of
occurrence in that other case. Further, it was also stated, as per
the investigation, A2 made a disclosure and pursuant to that the
iron rod (M.O. 1) used 10 years back was recovered.
6. A1 was arrested on 21.09.2005 by the special team in
connection with some other case in Cr. No. 352 of 2004 of Sri
Perumbatoor Police Station. An identification parade was
conducted so far as A1 is concerned on 20.10.2005 in which PW
10, Karthik an Auto Driver said to have identified A1. Later, the
charge-sheet was filed by PW 15 on 23.12.2005 and charges
under Sections 395, 396 and 397 IPC were framed against the
accused persons on 24.03.2006.
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5
7. The prosecution examined 15 witnesses to prove the case
against the accused persons. Statements of the accused persons
were recorded under Section 313 Cr.P.C. on 17.04.2006.
8. The trial court, as already indicated, convicted both the
accused persons on 21.04.2006 for the offences under Sections
395, 396 and 397 IPC. The trial court granted life imprisonment
under Section 395 and fine of Rs.1,000/- and they were sentenced
to death for the offence under Section 396 IPC. They were also
sentenced for RI for 7 years under Section 397 IPC.
9. The High Court, as already indicated, vide judgment dated
27.07.2006 converted the sentence of death to life imprisonment
under Section 396 IPC and rest of the sentence on other heads
were confirmed.
10. Shri Sanjay Jain, learned counsel appearing for the appellant
(A2) submitted that the trial court and the High Court had
committed a grave error in convicting the accused persons.
Learned counsel challenged his conviction mainly on two grounds:
one on the ground of non-conducting the identification parade so
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6
far as accused No.2 is concerned and other on the ground of
recovery of alleged iron rod. Learned counsel submitted that A2
was arrested after ten years of incident and was not properly
identified by any of the witnesses. Learned counsel also
highlighted the contradictions in the evidence of PW1, PW2 and
PW15 and brought out the lacuna in the evidence of those
witnesses. It was pointed out that the identification parade was
conducted only in respect of A1 who is no more and so far as A2
is concerned, no identification parade was conducted. Further, it
was pointed out that the photograph of the appellant was shown
to PW 1 which was marked with the objection of the accused.
Further, learned counsel pointed out that none of the witnesses in
their deposition had stated that they could identify A2. Learned
counsel pointed out that it was the prosecution case that a rod
was used for committing the crime but was not recovered and the
one alleged to have recovered had nothing to do with the crime.
Learned counsel submitted that the prosecution miserably failed
to prove the case against the appellant beyond reasonable doubt
and that this is a fit case where this Court should have given the
benefit of doubt and the accused be acquitted.
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11. Shri C. Paramasivam, learned counsel appearing for the
State submitted that the High Court has rightly confirmed the
conviction of the appellant and reduced the sentence to life
imprisonment. Learned counsel submitted that there is no fixed
rule with regard to the period within which test identification
parade be held. Further, it was pointed out that no motive was
alleged against the prosecution for the delay in conducting test
identification parade. Learned counsel also submitted that even
in the absence of test identification parade, the identification of
accused persons by the witnesses in court is a substantive piece
of evidence. Further, it was also pointed out that the gang of
dacoits from Haryana and Rajasthan States used to come down to
state of Tamil Nadu and commits heinous crimes like dacoity and
murder and after arrest of those accused persons, several
undetected cases could be detected and few of the accused
persons have been convicted. Learned counsel submitted that
the trial court and the High Court have rightly convicted the
accused persons relying on the evidence of PW 1, PW 2, PW 5 and
PW 10.
Page 8
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12. We are unhappy in the manner in which Sessions Court has
awarded death sentence in the instant case. The tests laid down
by this Court for determining the rarest of rare cases in Bachan
Singh v. State of Punjab (1980) 2 SCC 684 and Machhi Singh
& Ors. v. State of Punjab (1983) 3 SCC 470 and other related
decisions like Jagmohan Singh v. State of U.P. (1973) 1 SCC
20, were completely overlooked by the Sessions Court. The
Sessions Court had gone astray in referring to the views
expressed by the then Chief Justice of Madras in a lecture
delivered at Madurai, which advice according to the Sessions
Judge was taken note of by another learned Judge in delivering a
judgment in rowdy panchayat system. Sessions Judge has stated
that he took into consideration that judgment and the provision in
Section 396 of the Indian Penal Code to hold that the accused had
committed the murder and deserved death sentence. Further,
the trial court had also opined that the imposition of death
sentence under Section 396 IPC is the only weapon in the hands
of the judiciary under the prevailing law to help to eliminate the
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9
crime and the judgment of the trial court should be on that
ground.
13. It is apposite to refer to the special reasons which weighed
with the Sessions Judge to award the death sentence which reads
as follows:
“36. In this case, it has been decided by this court
to impose the maximum sentence of death to be
imposed on the accused No. 1 and 2, under Section 396
of the Indian Penal Code, under Section 354(3) of the
Criminal Procedure Code, the special reasons for
awarding such sentence to be given show that the case
is a case of rarest of rare cases. Therefore, this court
gives the following reasons:
(a) xxx xxx xxx
(b) Before the enactment of Criminal Procedure
Code, many years ago, civilization has come
into existence. From the rule of Kingdom to the
rule of people and the democracy and
constitution came into existence in many
countries. In these circumstances, the death
sentence is prevailing in all the countries in
different from and that sentence is imposed on
such criminal who deserves for the same. We
all know that more particularly in the court in
like America, the sentence like ‘lynching’ has
attained the legal form and given to the
deserving criminals and in Arab countries the
law provide for imposing sentence like
‘slashing’, ‘beheading’ taking the organ for
organ like ‘eye for eye’, ‘tooth for tooth’. The
above mentioned facts are the development of
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criminal jurisprudence. Therefore, this court is
of the opinion that it is proper to impose death
sentence to the accused in this case.
(c) xxx xxx xxx
(d) xxx xxx xxx
(e) In this case, the accused came from a State
about 2000 k.m. from our State and they did not think
that the victims were also human like them but they
thought only about the wellbeing of their family and
their own life and committed the fear of death amongst
the common public of our State by committing robbery
and murder for about 11 years. Therefore, this court is
of the opinion that the death sentence that would be
imposed on them would create a fear amongst the
criminals who commit such crime and further this case
is a rarest of rare cases that call for the imposition of
death sentence.
(f) The honorable Chief Justice of High Court of
Madras, Justice A. P. Shah while delivering a lecture at
Madurai said strict laws should be enacted as regard to
Child abuse and the persons committing the crime
should be punished accordingly. This advise was taken
note of the honorable Justice Karpagavinayagm while
delivering a judgment on rowdy panchayat system. He
ordered that the government should enact suitable law
to eliminate this menace. Taking this judgment into
consideration and that there is a provision in Section
396 of the Indian Penal Code that the people involved
in dacoity can be imposed with death sentence, the
accused who have committed the murder without any
pity deserve to be imposed with the death sentence.
This court is also of the opinion that the imposition of
death sentence under Section 396 of the Indian Penal
Code is the only weapon in the hands of the judiciary
under the prevailing law to help to eliminate the crime.
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Accordingly this judgment should be. Therefore, this
court is of the view that the death sentence should be
imposed on the accused.”
(emphasis added)
14. We cannot countenance any of the reasons which weighed
with the Sessions Judge in awarding the death sentence. Reasons
stated in para 36(b) and (e) in awarding death sentence in this
case exposes the ignorance of the learned judge of the criminal
jurisprudence of this country.
15. Section 354(3) of the Code states whenever a Court awards
death sentence, it shall record special reasons. Going by the
current penological thought, imprisonment of life is the rule and
death sentence is an exception. The legislator’s intent behind
enacting Section 354(3) clearly demonstrates the concern of the
legislature. This principle has been highlighted in several
judgments of this Court apart from the judgments already
referred to. Reference may also be made to few of the judgments
of this Court, such as Ronal James v. State of Maharashtra,
(1998) 3 SCC 625; Allauddin Mian v. State of Bihar, (1989) 3
SCC 5; Naresh Giri v. State of M.P., (2001) 9 SCC 615 etc. We
Page 12
12
are disturbed by the casual approach made by the Sessions Court
in awarding the death sentence. The ‘special reasons’ weighed
with the trial judge to say the least, was only one’s predilection or
inclination to award death sentence, purely judge-centric.
Learned judge has not discussed the aggravating or mitigating
circumstances of this case, the approach was purely ‘crimecentric’.
16. We are really surprised to note the “special reasons” stated
by the trial judge in para 36(b) of the judgment. We fail to see
why we import the criminal jurisprudence of America or the Arab
countries to our system. Learned trial judge speaks of sentence
like “lynching” and described that it has attained legal form in
America. Lynching means kill someone for an alleged offence
without a legal trial, especially by hanging. Learned judge failed
to note that the constitutionality of death sentence came up for
consideration before the U.S. Supreme Court in William Henry
Furman v. State of Georgia 408 U.S. 238 (1972), which
involved three persons under death sentence, more than 600
prisoners on death row. Five Judges invalidated the death
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13
penalty, four dissented and the Court held that death penalty to
be cruel and unusual punishment in violation of the 8th and 14th
amendments. Later in Gregg v. Georgia [ 428 U.S. 153
(1976)], the court laid down the concern expressed in Furman.
In the United States, some States have done away with death
sentence as well. The judges’ inclination to bring in alleged
system of lynching to India and to show it as special reason is
unfortunate and shows lack of exposure to criminal laws of this
country. Learned trial judge while showing special reasons
referred to law prevailing in Arab countries, like imposing
sentence of ‘slashning’ beheading, taking organ for organ like
“eye for eye”, “tooth for tooth” and says those are the
developments of criminal jurisprudence. Learned judge then says
that the accused persons in the present case also deserve death
sentence. Learned judge lost sight of the fact that the Criminal
Jurisprudence of this country or our society does not recognize
those types of barbaric sentences. We are surprised to see how
those factors have gone into one’s mind in awarding death
sentence.
Page 14
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17. We are also not concerned with the question whether the
criminals have come from 20 km away or 2000 km away.
Learned judge says that they have come to “our state”, forgetting
the fact that there is nothing like ‘our state’ or ‘your state’. Such
parochial attitude shall not influence or sway a judicial mind.
Learned judge has further stated, since the accused persons had
come from a far away state, about 2000 km to “our state” for
committing robbery and murder, death sentence would be
imposed on them. Learned judge has adopted a very strange
reasoning, needs fine tuning and proper training..
18. Learned trial judge in para 36(f) has also referred to a
judgment of the High Court rendered by a learned Judge of the
High Court on “rowdy panchayat system”. Learned trial judge has
stated that he has taken into consideration that judgment also in
reaching the conclusion that death sentence be awarded. We are
not in a position to know how that judgment is relevant or
applicable in awarding death sentence. Learned trial judge has
also not given the citation of that judgment or has given any
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15
explanation, as to how that judgment is applicable to the case on
hand.
19. Learned trial judge has also opined that the imposition of
death sentence under Section 396 of the IPC is the only weapon
in the hands of judiciary under the prevailing law to help to
eliminate the crime. Judiciary has neither any weapon in its
hands nor uses it to eliminate crimes. Duty of the judge is to
decide cases which come before him in accordance with the
constitution and laws, following the settled judicial precedents. A
Judge is also part of the society where he lives and also conscious
of what is going on in the society. Judge has no weapon or sword.
Judge’s greatest strength is the trust and confidence of the
people, whom he serves. We may point out that clear reasoning
and analysis are the basic requirements in a judicial decision.
Judicial decision is being perceived by the parties and by the
society in general as being the result of a correct application of
the legal rules, proper evaluation of facts based on settled judicial
precedents and judge shall not do anything which will undermine
the faith of the people.
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20. We also fail to see how the reasons stated in para 36(f) be a
guiding factor to award death sentence. One of the Code of
Conduct recognized at the Bangalore Conference of the year 2001
reads as follows:
“A judge shall exercise the judicial function
independently on the basis of the judge’s assessment
of the facts and in accordance with a conscientious
understanding of the law, free of any extraneous
influences, inducement, pressures, threats or
interference, direct or indirect, from any quarter or for
any reason.”
21. Criminal Court while deciding criminal cases shall not be
guided or influenced by the views or opinions expressed by
Judges on a private platform. The views or opinions expressed by
the Judges, jurists, academicians, law teachers may be food for
thought. Even the discussions or deliberations made on the State
Judicial Academies or National Judicial Academy at Bhopal, only
update or open new vistas of knowledge of judicial officers.
Criminal Courts have to decide the cases before them examining
the relevant facts and evidence placed before them, applying
binding precedents. Judges or academicians opinions,
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predilection, fondness, inclination, proclivity on any subject,
however eminent they are, shall not influence a decision making
process, especially when judges are called upon to decide a
criminal case which rests only on the evidence adduced by the
prosecution as well as by the defence and guided by settled
judicial precedents. National Judicial Academy and State Judicial
Academies should educate our judicial officers in this regard so
that they will not commit such serious errors in future.
22. The High Court of Madras heard the Criminal Appeal No.
566/2006 filed by the accused Nos. 1 and 2, along with Referred
Trial 1 of 2006. The High Court, however, did not confirm the
death sentence awarded by the trial Court, but awarded life
sentence to both the accused persons. As already indicated, we
are, in this case, concerned only with the conviction and sentence
awarded on the 2nd accused, since 1st accused is no more.
23. We may indicate at the outset that the accused persons
were apprehended after a period of ten years from the date of the
incident and nine other accused persons are still absconding. The
incident had taken place on 07.06.1995 and the accused persons
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were arrested on 26.02.2005 from Rajasthan in connection with
some other case ie. Cr. No. 59 of 1996. The prosecution version
that A-2 finger prints tallied with ones lifted from the place of
occurrence in Cr. No. 59 of 1996. Further, it is also the
prosecution case that A2 made a disclosure and pursuant to that
iron rod (M.O. No.1) used 10 years back was recovered. An
identification parade was conducted so far as A1 is concerned on
20.10.2005, who is now no more. However, no identification
parade was conducted so far as A-2 is concerned. It has come out
in evidence that the photographs of A-2 was shown to PW 1 by
the police on 30.10.2005 and asked him to identify the accused
and on identification by PW 1, the accused was interrogated by
the police. In cross-examination, PW1 has stated as follows:
“Accused No.2 attacked me before I could see him
and make any enquiry. He assaulted me with a rod.
I could not see with which hand he assaulted me. It
is incorrect to suggest that the accused did not
assault me as stated by me.”
24. PW 1 also further stated in cross-examination as follows:
“There was light only after the neighbors switched on
the light. It was dark earlier. It is incorrect to suggest
that it is not possible to see the accused in the
darkness.”
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25. PW 2 – Lakshmi, wife of the deceased in her examination-inchief
stated as follows:
“I opened my eyes and saw. When I saw, accused
Nos. 1 and 2 were present amongst the persons. I
fainted immediately. There was commotion in my
house.”
26. In cross-examination, she has stated as follows:
“In the police interrogation, I did not tell that the
accused Nos. 1 and 2 were present in the incident
that took place in my house.”
27. PW 5, brother of PW 1, in his examination-in-chief has stated
as follows:
“At that time accused Nos. 1 and 2 attacked me with
the rod. I fell down and fainted. When I regained
consciousness I was in the room of my father. My
father, my mother and younger brother sustained
injuries. I asked my mother to wake up my father.
Myself and my mother tried to wake up my father.
After that neighbors admitted us in the hospital. I
remember it was in the C.M.C. hospital. The accused
attacked me similar rod that is being showed to me by
you. Material object No. 1 is the rod.”
28. In cross-examination, PW 5 stated as follows:
“In the police enquiry I told that I did not know what
happened as I was sleeping. I do not remember
whether I told the doctor in the hospital at Valajah that
I was assaulted by unknown persons……………….In the
police interrogation, I did not tell that I had seen the
accused No. 1 and 2…………….”
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29. The investigation officer stated that he did not receive any
documents about the arrest of the appellant (A2) and he had not
mentioned in the final report about the crimes that had taken
place in other States.
30. We may indicate that in the instant case, FIR was registered
against unknown persons. A2, as already stated, was arrested
after ten years on 26.02.2005 in connection with some other
crime. We fail to see how PW1 and PW2 could identify A2 in the
court at this distance of time. They were guided by the
photographs repeatedly shown by the police.
31. Evidently, the witnesses did not know the accused earlier,
hence the accused could be identified only through a test
identification parade which was not done in this case, so far as A-
2 is concerned. In this connection, we may refer to the
judgment of this court in Mohd. Iqbal M. Shaikh v. State of
Maharashtra (1998) 4 SCC 494 wherein this Court held that:
“If the witness did not know the accused persons by
name but could only identify from their appearance
then a test identification parade was necessary, so
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21
that, the substantive evidence in court about the
identification, which is held after fairly a long period
could get corroboration from the identification
parade. But unfortunately the prosecution did not
take any steps in that regard and no test
identification parade had been held.”
32. This Court in Ravindra Alias Ravi Bansi Gohar v. State
of Maharashtra and Others (1998) 6 SCC 609 deprecated the
practice of showing the photographs for indentifying the culprits
and held as follows:
“The identification parade belongs to the
investigation stage and they serve to provide the
investigating authority with materials to assure
themselves if the investigation is proceeding on the
right lines. In other words, it is through these
identification parades that the investigating agency
is required to ascertain whether the persons whom
they suspect to have committed the offence were the
real culprits – and not by showing the suspects or
their photographs. Such being the purpose of
identification parades, the investigating agency, by
showing the photographs of the suspects whom they
intended to place in the TI parade, made it farcical.
If really the investigating agency was satisfied that
PWs 2 and 12 did know the appellants from before
and they were in fact amongst the miscreants, the
question of holding the TI parade in respect of them
for their identification could not have arisen.”
33. In Ravi alias Ravichandran v. State represented by
Inspector of Police (2007) 15 SCC 372, this Court held that:
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22
“A judgment of conviction can be arrived at even if
no test identification parade has been held. But
when a first information report has been lodged
against unknown persons, a test identification
parade in terms of Section 9 of the Evidence Act, is
held for the purpose of testing the veracity of the
witness in regard to his capability of identifying
persons who were unknown to him.”
34. Further, it is also held that:
“It was incumbent upon the prosecution to arrange a
test identification parade. Such test identification
parade was required to be held as early as possible
so as to exclude the possibility of the accused being
identified either at the police station or at some other
place by the witnesses concerned or with reference
to the photographs published in the newspaper. A
conviction should not be based on a vague
identification.”
35. A-2, it may be noted, was not named in the FIR, nor any
identification parade was conducted to identify him by the
witnesses. It is rather impossible to identify the accused person
when he is produced for the first time in the court i.e. after ten
years since he was unknown to the witnesses. We are of the view
that it is a glaring defect which goes to the root of the case since
none of the witnesses had properly identified the accused.
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36. We may notice that it is the case of prosecution that one rod
was also used for the murder of the deceased persons in this
case, but that rod was not recovered. One rod stated to have
been recovered at the instance of A2 could not be connected with
the crime. PW 5 in his examination-in-chief had stated that the
accused had attacked him with a similar rod that was being
shown to him which would indicate that the witness could not
conclusively connect the rod which was used for committing the
crime. Further, the rod was recovered after a period of ten years
of the incident and it is highly doubtful, whether it was used for
the commission of the offence. Further, the prosecution case is
that a rope was used for the strangulation causing death to Dr.
Mohan Kumar, but the rope was not recovered.
37. In Dwarkadas Gehanmal v. State of Gujarat (1999) 1
SCC 57, this Court has held that it is for the prosecution to prove
that the object recovered has nexus with the crime. This Court in
Mustkeem alias Sirajudeen v. State of Rajasthan (2011) 11
SCC 724 held, “what is admissible under Section 27 of the Act is
Page 24
24
the information leading to discovery and not any opinion formed
on it by the prosecution.” This Court held as follows:
“With regard to Section 27 of the Act, what is
important is discovery of the material object at the
disclosure of the accused but such disclosure alone
would not automatically lead to the conclusion that
the offence was also committed by the accused. In
fact, thereafter, burden lies on the prosecution to
establish a close link between discovery of the
material object and its use in the commission of the
offence. What is admissible under Section 27 of the
Act is the information leading to discovery and not
any opinion formed on it by the prosecution.”
38. In this case, the prosecution could not prove that the rod
recovered has any nexus with the crime alleged to have been
committed by A-2. We are of the view that the prosecution,
therefore, could not establish the guilt of the second accused
beyond reasonable doubt. The High Court, therefore, committed
a gross error in awarding life sentence to A2.
39. This appeal is, therefore, allowed and the conviction and
sentence awarded to A-2 is set aside. We are informed that the
accused has already served the jail sentence for more than eight
years now. A-2 is, therefore, set at liberty, unless he is wanted in
any other case.
Page 25
25
…………………………………..J.
(K.S. Radhakrishnan)
…………………………………..J.
(Dipak Misra)
New Delhi,
December 11, 2012
Page 26
26
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 143 OF 2007
OMA @ Omprakash & Anr. ... Appellants
Versus
State of Tamil Nadu ...Respondent
J U D G M E N T
Dipak Misra, J.
I respectfully concur with the conclusion and views
expressed by my learned Brother Radhakrishnan, J. However,
with regard to the ratiocination made by the learned Sessions
Judge while imposing the death sentence, I propose to record my
Page 27
27
views in addition especially in the context of the reasons which
have already been reproduced by my learned brother.
2. Article 141 of the Constitution of India stipulates that the
law declared by the Supreme Court shall be binding on all Courts
within the territory of India. The reasons ascribed by the learned
trial Judge are required to be tested on the bedrock of precedents
in their conceptual and perceptual eventuality.
3. In Bachan Singh v. State of Punjab1, the majority, after
deliberating many an aspect, came to hold that the provision
under Section 302 of the Indian Penal Code which provides for
imposition of death penalty neither violates the letter nor the
ethos and Article 19 of the Constitution. Testing the said
provision on the anvil of Articles 14 and 21 of the Constitution, it
reaffirmed the view taken by this Court in Jagmohan Singh v.
State of U.P.2 and held that death penalty does not violate
Articles 14, 19 and 21 of the Constitution.
4. The majority proceeded to answer the question whether the
Court can lay down standards or norms restricting the area of
imposition of death penalty to narrow the categories of murders
1 (1980) 2 SCC 684
2 (1973) 1 SCC 20
Page 28
28
and, in that context, it opined that standardisation of the
sentencing process would tend to sacrifice at the altar of blind
uniformity, in fact, indeed there is a real danger of such
mechanical standardisation degenerating into a bed of
procrustean cruelty. Thereafter, the Bench proceeded to state
thus:-
“As Judges, we have to resist the temptation to
substitute our own value-choices for the will of the
people. Since substituted judicial “made-to-order”
standards, howsoever painstakingly made, do not
bear the people's imprimatur, they may not have the
same authenticity and efficacy as the silent zones
and green belts designedly marked out and left open
by Parliament in its legislative planning for fair play
of judicial discretion to take care of the variable,
unpredictable circumstances of the individual cases,
relevant to individualised sentencing. When Judges,
acting individually or collectively, in their benign
anxiety to do what they think is morally good for the
people, take upon themselves the responsibility of
setting down social norms of conduct, there is every
danger, despite their effort to make a rational guess
of the notions of right and wrong prevailing in the
community at large and despite their intention to
abide by the dictates of mere reason, that they
might write their own peculiar view or personal
predilection into the law, sincerely mistaking that
changeling for what they perceive to be the
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community ethic. The perception of “community”
standards or ethics may vary from Judge to Judge.”
[Emphasis added]
5. The majority referred to the decision in Gurbaksh Singh
Sibbia v. State of Punjab3 and stated that the observations
made therein aptly applied to the desirability and feasibility of
laying down standards in the area of sentencing discretion. In the
case of Gurbaksh Singh (supra), the Constitution Bench had
observed thus:-
“Judges have to decide cases as they come before
them, mindful of the need to keep passions and
prejudices out of their decisions.”
6. After stating broad guidelines relating to the mitigating
circumstances, the majority ultimately ruled thus:-
“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
3 (1980) 2 SCC 565
Page 30
30
the onerous function with evermore scrupulous care
and humane concern, directed along the highroad of
legislative policy outlined in Section 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.”
7. In Machhi Singh and Others v. State of Punjab4, a
three-Judge Bench explained the concept of rarest of rare cases
by stating that the reasons why the community as a whole does
not endorse the humanistic approach reflected in “death
sentence-in-no-case” doctrine are not far to seek. In the first
place, the very humanistic edifice is constructed on the
foundation of “reverence for life” principle. When a member of
the community violates this very principle by killing another
member, the society may not feel itself bound by the shackles of
this doctrine. Secondly, it has to be realized that every member of
the community is able to live with safety without his or her own
life being endangered because of the protective arm of the
community and on account of the rule of law enforced by it. The
4 (1983) 3 SCC 470
Page 31
31
very existence of the rule of law and the fear of being brought to
book operates as a deterrent for those who have no scruples in
killing others if it suits their ends. Every member of the
community owes a debt to the community for this protection.
8. After stating about the feeling of the community and its
desire for self preservation, the Court observed that the
community may well withdraw the protection by sanctioning the
death penalty. Thereafter, it ruled thus:-
“But the community will not do so in every case. It
may do so “in rarest of rare cases” when its
collective conscience is so shocked that it will expect
the holders of the judicial power centre to inflict
death penalty irrespective of their personal opinion
as regards desirability or otherwise of retaining death
penalty.”
9. Emphasis was laid on certain aspects, namely, manner of
commission of murder, motive for commission of murder, anti
social or socially abhorrent nature of the crime, magnitude of
crime and personality of the victim of murder. After so stating,
the propositions emerged from Bachan Singh (supra) were
culled out which are as follows:-
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“(i) The extreme penalty of death need not be
inflicted except in gravest cases of extreme
culpability.
(ii) Before opting for the death penalty the
circumstances of the ‘offender’ also require to be
taken into consideration along with the
circumstances of the ‘crime’.
(iii) Life imprisonment is the rule and death sentence
is an exception. In other words death sentence must
be imposed only when life imprisonment appears to
be an altogether inadequate punishment having
regard to the relevant circumstances of the crime,
and provided, and only provided, the option to
impose sentence of imprisonment for life cannot be
conscientiously exercised having regard to the
nature and circumstances of the crime and all the
relevant circumstances.
(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so
the mitigating circumstances have to be accorded
full weightage and a just balance has to be struck
between the aggravating and the mitigating
circumstances before the option is exercised.”
10. Thereafter, the Court stated that to apply the said
guidelines, the following questions are required to be asked and
answered:-
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33
“(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. In Lehna v. State of Haryana5 a three-Judge Bench, after
referring to the pronouncements in Bachan Singh (supra) and
Machhi Singh (supra), ruled under what circumstances the
collective conscience of the community is likely to be shocked.
We may fruitfully quota a passage from the same:-
“A convict hovers between life and death when the
question of gravity of the offence and award of
adequate sentence comes up for consideration.
Mankind has shifted from the state of nature towards
a civilized society and it is no longer the physical
opinion of the majority that takes away the liberty of
a citizen by convicting him and making him suffer a
sentence of imprisonment. Award of punishment
following conviction at a trial in a system wedded to
the rule of law is the outcome of cool deliberation in
the court room after adequate hearing is afforded to
the parties, accusations are brought against the
accused, the prosecuted is given an opportunity of
5 (2002) 3 SCC 76
Page 34
34
meeting the accusations by establishing his
innocence. It is the outcome of cool deliberations
and the screening of the material by the informed
man i.e. the Judge that leads to determination of the
lis.
The principle of proportion between crime and
punishment is a principle of just desert that serves as
the foundation of every criminal sentence that is
justifiable. As a principle of criminal justice it is
hardly less familiar or less important than the
principle that only the guilty ought to be punished.
Indeed, the requirement that punishment not be
disproportionately great, which is a corollary of just
desert, is dictated by the same principle that does
not allow punishment of the innocent, for any
punishment in excess of what is deserved for the
criminal conduct is punishment without guilt.”
[Emphasis added]
12. In Haresh Mohandas Rajput v State of Maharshtra6,
the Bench referred to the principles in Bachan Singh (supra) and
Machhi Singh (supra) and proceeded to state as follows:-
“The rarest of the rare case” comes when a convict
would be a menace and threat to the harmonious
and peaceful coexistence of the society. The crime
may be heinous or brutal but may not be in the
category of “the rarest of the rare case”. There must
be no reason to believe that the accused cannot be
reformed or rehabilitated and that he is likely to
6 (2011) 12 SCC 56
Page 35
35
continue criminal acts of violence as would constitute
a continuing threat to the society. The accused may
be a menace to the society and would continue to be
so, threatening its peaceful and harmonious
coexistence. The manner in which the crime is
committed must be such that it may result in intense
and extreme indignation of the community and shock
the collective conscience of the society. Where an
accused does not act on any spur-of-the-moment
provocation and indulges himself in a deliberately
planned crime and meticulously executes it, the
death sentence may be the most appropriate
punishment for such a ghastly crime. The death
sentence may be warranted where the victims are
innocent children and helpless women. Thus, in case
the crime is committed in a most cruel and inhuman
manner which is an extremely brutal, grotesque,
diabolical, revolting and dastardly manner, where his
act affects the entire moral fibre of the society e.g.
crime committed for power or political ambition or
indulging in organised criminal activities, death
sentence should be awarded. (See C. Muniappan v.
State of T.N.7, Dara Singh v. Republic of India8,
Surendra Koli v. State of U.P.9, Mohd. Mannan v.
State of Bihar10 and Sudam v. State of
Maharashtra11.)”
13. In Sham Alias Kishore Bhaskarrao Matkari v. State of
Maharashtra12, while dealing with the justifiability of imposition
7 (2010) 9 SCC 567
8 (2011) 2 SCC 490
9 (2011) 4 SCC 80
10 (2011) 5 SCC 509
11 (2011) 7 SCC 125
12 (2011) 10 SCC 389
Page 36
36
of death penalty, the Court took note of the aggravating and
mitigating circumstances and eventually opined that though the
appellant therein caused death of three persons, he had no preplan
to do away with the family of his brother and the quarrel
started due to the land dispute and, in fact, on the fateful night,
he was sleeping with the other victims in the same house and in
those circumstances and other material placed clearly showed
that he had no pre-plan or predetermination to eliminate the
family of his brother. The Bench also took note of his antecedents
and did not agree with the view expressed by the High Court
which had enhanced the sentence from life to death on the
ground that it was a rarest of the rare case where extreme
penalty of death was called for.
14. Recently, in Mohammed Ajmal Mohammad Amir Kasab
alias Abu Mujahid v. State of Maharashtra13, the Court
referred to the earlier decisions and taking note of the terrorist
attack from across the border, the magnitude of unprecedented
enormity on all scales, the conspiracy behind the attack, the
preparation and training for the execution, and more importantly,
13 (2012) 9 SCC 1
Page 37
37
its traumatizing effect, opined that it was the rarest of rare case
to come before this Court since the birth of Republic. The Bench,
in that context, expressed thus:-
“Putting the matter once again quite simply, in this
country death as a penalty has been held to be
constitutionally valid, though it is indeed to be
awarded in the “rarest of rare cases when the
alternative option (of life sentence) is unquestionably
foreclosed”. Now, as long as the death penalty
remains on the statute book as punishment for
certain offences, including “waging war” and murder,
it logically follows that there must be some cases,
howsoever rare or one in a million, that would call for
inflicting that penalty. That being the position we fail
to see what case would attract the death penalty, if
not the case of the appellant. To hold back the death
penalty in this case would amount to obdurately
declaring that this Court rejects death as lawful
penalty even though it is on the statute book and
held valid by the Constitutional Benches of this
Court.”
15. We have referred to the aforesaid decisions to highlight that
this Court, on number of occasions, has dealt with under what
circumstances death penalty could be imposed and what are the
mitigating factors not to impose such punishment. Illustrative
guidelines have been provided, and, needless to say, it would
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38
depend upon the facts of each case. No strait-jacket scale can be
provided as has been said in number of pronouncements.
16. As is obvious from the reasoning of the learned Sessions
Judge, he has referred to the prevalence of death sentence in
certain countries and observed that in certain countries where law
provides “slashing”, “beheading”, “taking the organ for organ”
like ‘eye for eye’, ‘tooth for tooth’ to the accused, it shows the
growth of criminal jurisprudence. That apart, he had referred to
the speech of the then learned Chief Justice of the High Court, and
it is clearly demonstrable that the same has influenced his
appreciation, analysis and perception. Being influenced by the
erroneous notions of law and speech of the learned Chief Justice,
may be understanding it totally out of context, his passion and
prejudices have dominated over his reasoning faculties and the
result, as I perceive, is devastating.
17. In Hindustan Times Ltd. v. Union of India and Others14,
a two-Judge Bench of this Court referred to an article On Writing
Judgments, by Justice Michael Kirby of Australia15 wherein it has
been highlighted, apart from any facet that the legal profession is
14 (1998) 2 SCC 242
15 * [(1990) (Vol. 64. Australian Law Journal, p. 691)]
Page 39
39
entitled to have, it demonstrated that the Judge has the correct
principles in mind, has properly applied them and is entitled to
examine the body of the judgment for the learning and precedent
that they provide and further reassurance of the quality of the
judiciary which is the centre-piece of our administration of justice.
Thus, the fundamental requirement is that a Judge presiding over
a criminal trial has the sacrosanct duty to demonstrate that he
applies the correct principles of law to the facts regard being had
to the precedents in the field. A Judge trying a criminal case has
a sacred duty to appreciate the evidence in a seemly manner and
is not to be governed by any kind of individual philosophy,
abstract concepts, conjectures and surmises and should never be
influenced by some observations or speeches made in certain
quarters of the society but not in binding judicial precedents. He
should entirely ostracise prejudice and bias. The bias need not be
personal but may be an opinionated bias.
18. It is his obligation to understand and appreciate the case of
the prosecution and the plea of the defense in proper perspective,
address to the points involved for determination and consider the
material and evidence brought on record to substantiate the
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allegations and record his reasons with sobriety sans emotion. He
must constantly keep in mind that every citizen of this country is
entitled to a fair trial and further if a conviction is recorded it has
to be based on the guided parameters of law. And, more
importantly, when sentence is imposed, it has to be based on
sound legal principles, regard being had to the command of the
statute, nature of the offence, collective cry and anguish of the
victims and, above all, the “collective conscience” and doctrine of
proportionality. Neither his vanity nor his pride of learning in
other fields should influence his decision or imposition of
sentence. He must practise the conscience of intellectual honesty
and deal with the matter with all the experience and humility at
his command. He should remind himself that some learning does
not educate a man and definitely not a Judge. The learning has to
be applied with conviction which is based on proper rationale and
without forgetting that human nature has imperfect expression
when founded bereft of legal principle. He should not usher in his
individual satisfaction but adjudge on objective parameters failing
which the whole exercise is likely to be named “monstrous
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legalism”. In this context, I may profitably reproduce the
profound saying of Sir P. Sidney :-
“In forming a judgment, lay your hearts void of foretaken
opinions; else, whatsoever is done or said will
be measured by a wrong rule; like them who have
the jaundice, to whom everything appeareth
yellow.”
19. In this context, I may usefully refer to the pronouncement in
State of W. B. Others v. Shivanand Pathak and Others16,
wherein the High Court had affirmed the death sentence imposed
by the learned Sessions Judge. The High Court had commenced
the judgment with the expression that it was one of the most
sensational trials of the recent years and the murder is a
diabolical one because the innocent persons have been killed by
the police officers who were supposed to be the protectors of lawabiding
citizens. Commenting on the said expression, this Court
observed thus:-
“We are constrained to observe that the High Court
has not kept in view the several decisions of this
Court and has not examined the circumstances
proved while considering the question of sentence
but on the other hand, have been swayed away with
16 (1998) 5 SCC 513
Page 42
42
the fact that the trial is a sensational one, and
therefore, the officials must be awarded the extreme
penalty of death. We do not find that it is a correct
appreciation of the law on the subject dealing with
the award of death penalty, even if a conviction
under Sections 302/34 IPC is sustained. The learned
Sessions Judge also came to the conclusion that the
case can be treated to be the rarest of rare cases as
police officials on whose shoulders the safety of
citizens lies and being the protectors of the society
are accused for killing of three civilians without any
provocation and resistance.”
[Underlining is ours]
From the aforesaid, it is graphically clear that a judge, while
imposing sentence, should not be swayed away with any kind of
sensational aspect and individual predilections. If it is done, the
same would tantamount to entering into an area of emotional
labyrinth or arena of mercurial syllogism.
20. In the case at hand, as is perceptible, the learned trial Judge
has primarily been guided by some kind of notion and connected
them with civilized world and democracy which, in my considered
opinion, should not have been at all referred to. He should
remember the language of Article 302 of IPC and the precedents
that govern the field for imposition of death penalty. In that
event, the perception might have been wrong but it could not
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have been said that it is based on some kind of personal
philosophy. Thus, the view expressed does not sustain the
concept of law and rather, on the contrary, exhibits a sanctuary of
errors. Speeches or deliberations in any academic sphere are not
to be taken recourse to unless they are in consonance with
binding precedents. A speech sometimes may reflect a personal
expression, a desire and, where a view may not be appositely
governed by words, is likely to confuse the hearers. It is a matter
of great remorse that the learned trial Judge had ventured to
enter into such kind of adventure. It can be stated with certitude
that in a criminal trial, while recording the sentence, he should
have been guided and governed by established principles and not
by personal notions or even ideas of eminent personalities
Binding judgments should be the Bible of a Judge and there
should not be any deviation. I have said so, so that the trial Court
judges are appositely guided and refrain themselves from
engaging in innovative creativity or “borrowed creativity” which
has no sanction in Law.
21. Consequently, the appeal stands allowed, the judgment of
conviction and order of sentence are set aside and the appellant
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is directed to be set at liberty forthwith unless he is required to be
detained in any other case.
……………………………….J.
[Dipak Misra]
New Delhi;
December 11, 2012.

Source: Supreme Court of India