YOGENDRA @ JOGENDRA SINGH versus THE STATE OF MADHYA PRADESH

[2019] 1 S.C.R.

YOGENDRA @ JOGENDRA SINGH

THE STATE OF MADHYA PRADESH

(Criminal Appeal Nos. 84-85 of 2019)

BJANUARY 17, 2019

[S. A. BOBDE, L. NAGESWARA RAO ANDR. SUBHASH REDDY, JJ.]

Penal Code, 1860 – ss.302, 326(A) and 460 – Murder –Conviction and death sentence – High Court affirmed convictionCand sentence – Prosecution case was that the appellant threw acidon the victim-deceased which resulted in her death – In the incident,grandmother, nephew and brother of the deceased also receivedacid burn injuries – Dying declaration was recorded by the Tehsildar– Deceased in her dying declaration stated that the appellant hadDburnt her by pouring acid on her and that he used to harass herand abuse her on phone –Trial court held appellant guilty for murderand disfiguring and injuring these people by throwing acid – HighCourt confirmed the conviction and sentence – On appeal, held:Appellant was rightly convicted for causing the death of deceased– All the circumstances of the case and particularly the dyingEdeclaration of victim unerringly pointed to the appellant as the onewho caused her death beyond any reasonable doubt – The DyingDeclaration of the deceased can be given highest probative valueand offered strong foundation for the conviction of the appellant– Crime against women.

FSentence/Sentencing – Death sentence – Appellant threw acidon the victim-deceased which resulted in her death – Whether therewere special reasons to award death sentence to the appellant –Held: The term ‘special reasons’ undoubtedly means reasons thatare one of special kind and not general reasons – In the instantcase, appellant committed this crime when he was out on bail inGanother case in which he was convicted for murder and his sentencewas upheld – The earlier incident was totally unrelated to thecircumstance of this case and took place almost ten years beforethis incident – This case was related to the appellant beingdisappointed in his relation with the deceased who he believed

deserted him – The circumstance of the case and particularly thechoice of acid did not disclose cold-blooded plan to murder thedeceased – It is possible that what was premeditated was an injuryand not death – There was no particular depravity or brutality inthe acts of the appellant that warranted classification of this caseas ‘rarest of the rare’ – Therefore, the sentence of death imposed bythe High Court is set aside and instead the appellant is awardedlife imprisonment – Penal Code, 1860 – ss.302, 326(A) and 460.

Allowing the appeals, the Court

HELD: 1. All the witnesses deposed that the appellant threwacid on them as well. In fact the acid disfigured the face of PW-4.PW 8, the father of the deceased deposed that as soon as hecame out from his room on hearing the cries of the deceased hesaw the appellant running away from the place. The said evidenceamply justified the conviction of the accused beyond anyreasonable doubt. The rest of the evidence is consistent, cogentand reliable. The appellant committed this crime when he wasout on bail in another case wherein he has been convicted formurder and his sentence has been upheld. The earlier incidentwas totally unrelated to the circumstance of this case. The saidincident took place almost ten years before the present incident.In the instant case, the incident is related to the appellant beingdisappointed in his relation with the deceased who he believeddeserted him. The circumstance of the case and particularly thechoice of acid did not disclose cold-blooded plan to murder thedeceased. Like in many cases the intention seems to have beento severely injure or disfigure the deceased; in this case theintention resulted into an attack more severe than planned whichthen resulted in the death of the deceased. There was noparticular depravity or brutality in the acts of the Appellant thatwarrants classification of this case as ‘rarest of the rare’.Therefore, the sentence of death imposed by the High Court isset aside and instead the appellant is directed undergoimprisonment for life. [Paras 7, 8, 9, 11 and 12][252-F-G; 253-A,C-E; 254-G-H; 255-A]

Bachan Singh v. State of Punjab (1980) 2 SCC 684;Machhi Singh v. State of Punjab (1983) 3 SCC 470 :[1983] 3 SCR 413 – followed.

ACase Law Reference

(1980) 2 SCC 684followedPara 10 [1983] 3 SCR 413followedPara 10

CRIMINAL APPELLATE JURISDICTION: Criminal AppealBNos. 84-85 of 2019.

From the Judgment and Order dated 12.12.2014 of the High Courtof Madhya Pradesh, Bench at Gwalior in Criminal Ref. Capital No. 1 of2014 and Criminal Appeal No. 883 of 2014.

A. Sirajudeen, Sr. Adv., Ms. Minakshi Vij, Ms. Sudesh Kumari,CAdvs. for the Appellant.

Ms. Vanshaja Shukla, Arjun Garg, Advs. for the Respondent.

The Judgment of the Court was delivered by

S. A. BOBDE, J. 1. Leave granted.D

2. These appeals are filed against the Judgment of the High Courtof Madhya Pradesh, Gwalior Bench, dated 12.12.2014 confirming thedeath sentence awarded to the appellant by the Sessions Court, Ambah,District Morena (M.P.) vide its judgment in Sessions Trial No.388/2013dated 24.07.2014.The Appellant has been convicted under sectionsE302,326(A) and 460 of IPC and awarded capital punishment of deathsentence, life sentence on three counts and fine of Rs.25,000/-each, andten years’ R.I. and fine of Rs.5000/- with default stipulations, respectively.This death sentence has been confirmed by the High Court on referenceunder Section 366 of Cr.P.C.

FThe brief facts of the case are as follows: the Appellant has beenconvicted for the murder of one Smt. Ruby by pouring acid on her. TheSessions Court awarded death sentence under Section 302 of the IPC.In the incident the grandmother of the deceased Smt. Chandrakala (PW3) and one Raju - nephew (PW 7) of the deceased and Janu (PW 4)brother of the deceased were also injured. The Appellant has beenGconvicted for disfiguring and injuring these people by throwing acid underSection 326(A) of IPC.

3. The Sessions Court imposed fine on the Appellant payable toSmt. Chandrakala, Raju and Janu in the sum of Rs.10,000/- each. TheHigh Court has enhanced the compensation and held that Janu was

entitled to be compensated sum of Rs. 3 lac and Smt. Chandrakalaand Raju who were not so disfigured were held entitled to compensationof Rs. 1.5 lac each.

4. The deceased Ruby was married to one Mr. Sanjay Gupta andhad two issues from the wedlock. The Appellant coveted her and thehusband suspected an affair between his wife-the deceased and theAppellant and harassed her accusing her of the same. The deceasedthereafter came to live with her maternal uncle. The Appellant pressurizedthe deceased’s father (PW 8) for summoning her to Porsa and threatenedhim with dire consequences if his demand was not fulfilled.

On that ominous night in summer, the deceased and her familymembers went to their respective rooms and retired for the night. Thedoors were kept open since it was summer. There was light in the roomsand the courtyard from some bulbs. The Appellant snuck into the roomof the deceased and warned her “though she doesn’t want to live withhim he is not going to let her live with anybody else”. The father of thedeceased,

Dataram (PW 8) woke up on hearing this and saw the Appellantrunning away after throwing acid on his daughter. The deceased startedscreaming, whereupon other family members tried to save her, theAppellant then, threw acid on the other members of the family, burningand injuring all of them. In the attack, the deceased sustained burn injuriesto the extent of 90% all over her body while others also sustained burninjuries.

5. At this juncture, we would like to note that though we haveexamined the entire record in detail, we do not consider it necessary todeal with all the aspects of the evidence in this judgment. We are satisfiedthat the Appellant has been rightly convicted for causing the death of thedeceased Smt. Ruby. All the circumstances of the case and particularlythe dying declaration of Smt. Ruby, unerringly point, to the Appellant asthe one who caused her death. There is no conjecture, surmise orinference in the narration of the witnesses who saw the Appellant in theact and were themselves the victim of his acid attack.

6. The evidence, which commends itself as unimpeachable, is asfollows: the Appellant fled from the scene of the crime after committingthe crime at Porsa on 21.07.2013. He was arrested from MunchkundDholapur on 11.09.2013. The Investigating Officer has deposed that the

AAppellant lead to the recovery of beer bottle which is said to havebeen used for carrying the acid used in the attack. The InvestigatingOfficer further deposed that the fingerprints of the Appellant and thefingerprints found on the beer bottle matched. The expert reported thatthe fingerprints found on the bottle and the fingerprints of the Appellantare of one and the same person.

7. Mansingh Pawak (PW 10) was functioning as Tehsildar /Executive Magistrate at Porsa. He was called by the Station HouseOfficer, Porsa for recording the Dying Declaration of the deceased andthe injured Janu. He clearly stated that the deceased was in consciousstate of mind while giving her statement and also provided her thumbCimpression on the dying declaration. The deceased in her dying declarationstated that the appellant Jogendra Singh had burnt her by pouring acidon her, she further stated that the Appellant would harass her and abuseher on the phone. The statement of the injured Janu was recorded as aDying Declaration believing that Janu might not survive. Nonetheless,Dthe statement is on record and has been duly proved.We are satisfied that the Dying Declaration of the deceased canbe given highest probative value and offers strong foundation for theconviction of the Appellant. It is not necessary to decide whether Janu’sDying Declaration is admissible because he did not die. Since Janu hasEdeposed as PW4; we find that the evidence of Janu (PW4), Smt.Chandrakala (PW3) who is the grandmother of the deceased and whoalso has suffered injuries is consistent and reliable.

All the three witnesses have deposed that the appellant threwacid on them as well. In fact the acid disfigured the face of Janu.

PW8, Dataram the father of the deceased deposed that as soonas he came out from his room on hearing the cries of the deceased hesaw the appellant running away from the place. We find that the aboveevidence amply justifies the conviction of the accused beyond anyreasonable doubt. The rest of the evidence is consistent, cogent andreliable.G

8. However, the question that remains to be considered is whetherthere are special reasons as to why the appellant should be sentenced todeath. The term ‘special reasons’ undoubtedly means reasons that areone of special kind and not general reasons. In the present case thereis one factor, which might warrant the imposition of the death sentence,

as vehemently, urged by the learned counsel for the State. That reasonis that the Appellant committed this crime when he was out on bail inanother case wherein he has been convicted for murder and his sentencehas been upheld.

It is undoubtedly difficult to ignore this fact but we find that it issafer to consider the imposition of sentence based on the facts of thisparticular case. Unquestionably, if there is pattern discernible acrossboth the cases then second conviction for murder would warrant theimposition of death sentence. But that does not appear to be so in thepresent case. The earlier incident is totally unrelated to the circumstanceof this case. The appellant was charged along with co-accused oneKiran Nurse for committing the murder of one Laxminarayan aliasLaxman Singh in the intervening night of 27.07.1994 and 28.07.1994.The present incident took place on 21.07.2013 and the last one almostten years before the present incident.

9. In the case before us, the incident is related to the appellantbeing disappointed in his relation with the deceased who he believeddeserted him. The circumstance of the case and particularly the choiceof acid do not disclose cold-blooded plan to murder the deceased. Likein many cases the intention seems to have been to severely injure ordisfigure the deceased; in this case we think the intention resulted intoan attack more severe than planned which then resulted in the death ofthe deceased. It is possible that what was premeditated was an injuryand not death.

10. We have not made the above observation in any way to condonethe acts of the appellant but merely to hold that there appear to be nospecial reasons in the present case that warrants an imposition of adeath sentence on the Appellant. In Bachan Singh v. State of Punjab[1]this Court held as follows: -

“209. There are numerous other circumstances justifying thepassing of the lighter sentence; as there are countervailingcircumstances of aggravation. “We cannot obviously feed intoa judicial computer all such situations since they areastrological imponderables in an imperfect and undulatingsociety.” Nonetheless, it cannot be over-emphasised that thescope and concept of mitigating factors in the area of death

1 (1980) 2 SCC 684

Apenalty must receive liberal and expansive construction bythe courts in accord with the sentencing policy writ large inSection 354(3). Judges should never be bloodthirsty. Hangingof murderers has never been too good for them. Facts andFigures, albeit incomplete, furnished by the Union of India,show that in the past, courts have inflicted the extreme penaltyBwith extreme infrequency — fact which attests to the cautionand compassion which they have always brought to bear onthe exercise of their sentencing discretion in so grave matter.It is, therefore, imperative to voice the concern that courts,aided by the broad illustrative guide-lines indicated by us,Cwill discharge the onerous function with evermore scrupulouscare and humane concern, directed along the highroad oflegislative policy outlined in Section 354(3) viz. that forpersons convicted of murder, life imprisonment is the rule anddeath sentence an exception. real and abiding concern forthe dignity of human life postulates resistance to taking lifeDthrough law’s instrumentality. That ought not to be done savein the rarest of rare cases when the alternative option isunquestionably foreclosed.”

Following which, this Court in Machhi Singh v. State ofPunjab[2]classified instances of rarest of rare cases where death sentenceEcan be justifiably imposed. In para 39, this Court laid down the followingtests: -

“39. In order to apply these guidelines inter alia the followingquestions may be asked and answered:

F(a) Is there something uncommon about the crime whichrenders sentence of imprisonment for life inadequate and callsfor death sentence?

(b) Are the circumstances of the crime such that there is noalternative but to impose death sentence even after accordingGmaximum weightage to the mitigating circumstances whichspeak in favour of the offender?”

11. We find that there is no particular depravity or brutality in theacts of the Appellant that warrants classification of this case as ‘rarestof the rare’.

2 (1983) 3 SCC 470H

12. Therefore, the sentence of death imposed by the High Courtis set aside and instead the appellant shall undergo imprisonment for life.

13. The Appeals are accordingly allowed.

Devika Gujral

Appeals allowed.