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PENAL CODE, 1860: ss.326, 436 and 302 r/w s.34 - Murder - 30-35 members in a group set on fire a number of houses in a village - Shot dead 15 persons and seriously injured 4 persons - 11 persons charge sheeted for the offences u/ss. 326, 436 and 302 r/w s. 34 - But charges framed only against 5 persons - Out of them, 3 accused acquitted for want of evidence and two accused including appellant held guilty of charged offences - Conviction and death sentence of appellant - On appeal, held: Courts below appreciated the evidence of PWs regarding involvement of appellant in the incident, including the fact that he had fired at various people, which led to the killing of relatives of PW10 and PW13 - The brother of PW-10 had died on the spot with bullet injuries - His version that he had seen the appellant firing from his fire arm remained wholly unshaken - The fact that the fire arms were used in commission of the crime was fully corroborated by medical evidence - PW1 and PW13 identified the appellant in open Court and such identification was not shaken or contradicted - Since the appellant was known to the witnesses and was identified by face, the fact that no Test Identification Parade was conducted at the time of investigation was of no consequence - The answers given by appellant while examining him u/s.313, fully corroborated the evidence of PW10 and PW13 and, therefore, the offences levelled against the appellant stood proved and the courts below rightly found him guilty - Regarding sentence, courts below put the entire elements of crime on the appellant and treated those elements as aggravating circumstances so as to award death sentence - The crime perpetrated by a group of people in an extremely brutal, grotesque and dastardly manner, could not be thrown upon the appellant alone - Appellant was a tribal, stated to be a member of the extremist group raging war against the minority settlers, apprehending perhaps they might snatch away their livelihood and encroach upon their properties, and possibly such frustration and neglect led them to take arms - Viewed in that perspective, it is not a rarest of rare case for awarding death sentence - Considering the gravity of the crime and the factors like extreme social indignation, death sentence is altered to that of imprisonment for life and the term of imprisonment as 20 years is fixed without remission, over and above the period of sentence already undergone. ARMS ACT, 1959: s.27(3) - Held: Was declared unconstitutional in *State of Punjab v. Dalbir Singh. Code of Criminal Procedure, 1973: Test identification parade: Object of - Discussed. s.161 - Statements made to the police during investigation are not substantive piece of evidence and the statements recorded u/s.161 CrPC can be used only for the purpose of contradiction and not for corroboration - If the evidence tendered by the witness in the witness box is creditworthy and reliable, that evidence cannot be rejected merely because a particular statement made by the witness before the Court does not find a place in the statement recorded u/s.161 CrPC. s.313 - Object of- Discussed. CRIMINAL LAW: Reasonable doubt - Held: An accused has a profound right not to be convicted of an offence which is not established by the evidential standard of proof "beyond reasonable doubt" - Law cannot afford any favourite other than truth and to constitute reasonable doubt, it must be free from an overemotional response - Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions - Criminal Courts, while examining whether any doubt is beyond reasonable doubt, may carry in their mind, some "residual doubt", even though the Courts are convinced of the accused persons' guilt beyond reasonable doubt. EVIDENCE ACT, 1872: s.138 - Held: s.138 specifically states that witness shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. Consequently, there is no scope u/s. 138 to start with cross-examination of a witness, who has not been examined-in-chief, an error committed by the trial Court. SENTENCE/SENTENCING: Death sentence - Mitigating circumstances - Counsel's ineffectiveness - Held: Right to get proper and competent assistance is the facet of fair trial - It is a constitutional guarantee conferred on the accused persons under Article 22(1) of the Constitution - When an accused challenges a death sentence on the ground of prejudicially ineffective representation of the counsel, the question is whether there is a reasonable probability that, absent the errors, the Court independently reweighs the evidence, would have concluded that the balance of aggravating and .mitigating circumstances did not warrant the death sentence - Applying the test to the facts of this case, it cannot be said that the accused was not given proper legal assistance by the counsel appeared before the trial Court as well as before the High Court. Death sentence - Proportionality of sentence - Three tests laid down are crime test, criminal test and RR test, not the "balancing test", while deciding the proportionality of the sentence - To award death sentence, crime test has to be fully satisfied and there should be no mitigating circumstance favouring the accused, over and above the RR test. |
