SC Converts Sentence of Death into Life Imprisonment : case of kidnapping & murder of 8 year child

The SC on April 24, 2020 {ARVIND SINGH v. THE STATE OF MAHARASHTRA} converted the death sentence imposed by the Trial Court, confirmed by the High Court, into the life imprisonment. It was further observed and directed that the life means till the end of the life with the further observation and direction that there shall not be any remission till the accused completes 25 years of imprisonment. 

It was held by the SC Bench, comprising of Justice UDAY UMESH LALIT, Justice INDU MALHOTRA & Justice HEMANT GUPTA, that where the statement of prosecution witnesses cannot be doubted on the basis of the touchstone of truthfulness, contradictions and inconsistencies, and the accused wants to assert any particular fact which cannot be made out from the prosecution evidence, it is incumbent upon the accused to cross examine the relevant witnesses to that extent. It was held that the witness, in order to impeach the truthfulness of his statement, must be cross-examined to seek any explanation in respect of a version, which accused wants to rely upon rather to raise an argument at the trial or appellate stage to infer a fact when the opportunity given was not availed of as part of fair play while appreciating the statement of the witnesses. Thus, it was held that a party intending to bring evidence to impeach or contradict the testimony of a witness must give an opportunity to explain or answer when the witness is in the witness box.

It was observed that the opinion of the expert can only suggest the time range, and not the precise time of death. It was held that the fact is that victim is proved to be in custody of A-1 and A-2 till 18:00 hrs. or so and, thus, in terms of provisions of Section 106 of the Evidence Act, it is for the accused to explain what happened to the victim before he was done to death. It was held that since the victim was in custody of A-1 and A-2 and there is no evidence of any intervening factor to doubt that there could be a possibility of third person, it is for them to discharge the burden of such fact which is within their knowledge. 

It was further held that the dead body was recovered on the basis of disclosure statement of A-1. It was held that the body was lying concealed under a bridge constructed over a Rivulet. The body could not be visible to any person passing through that road. It was observed that the photograph (Ex. Art./6) produced by the prosecution shows that the compartment under the bridge was more than 6 feet of diameter in which, one person could stand erect. It was held that since the body was recovered from a concealed area covered by leaves and sand, it is the A-1 alone who could point out the concealment of dead body.

It was further held that, in this case, A-1 and A-2 under Sec 313 Cr.P.C. have not taken any defense except the statement that they have been implicated falsely. A-1 has been put as many as 848 questions whereas A-2 has been put as many as 754 questions but the accused have not taken any other stand except of denial of material facts.

It was observed that an accused is required to cross-examine the prosecution witnesses to give him an opportunity to make any explanation which is open to him. It is a rule of professional practice in the conduct of a case. It was observed, however, in the absence of any cross-examination of the prosecution witnesses, an argument cannot be built, in the absence of any evidence to that effect.

It was concluded that in the present case, there is overwhelming evidence that shows the victim to be in company of the accused at five different places from 16:00 hrs. to 17:30 hrs – 18.00 hrs. Thereafter, the burden shifts to the accused to explain the circumstances which occurred thereafter till the time of the recovery of dead body. It was held that there is no evidence to create a doubt on the prosecution version that somebody else had access to the victim before he died. It was held that the fact that the child was carried on shoulder by A-1 shows that the child was not in a position to move and was done to death in that condition which is corroborated by medical evidence of injuries being perimortem. 

It was held that the kidnapping of an 8-year-old child was unequivocally for ransom. It was observed that the kidnapping of a victim of such a tender age for ransom has inherent threat to cause death as that alone will force the relatives of such victim to pay ransom. It was held that since the act of kidnapping of a child for ransom has inherent threat to cause death, therefore, the accused have been rightly been convicted for an offence under Section 364A read with Section 34 IPC.  

Sentence Awarded

It was held by the SC that it does not find any merit in the argument that being young or having no criminal antecedents are mitigating circumstances. It was held that what is required to be examined is whether there is a possibility of rehabilitation and whether it is the rarest of the rare case where the collective conscience of the community is so shocked that it will expect the holders of judicial power to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. It was observed that the manner of commission of murder when committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner are aggravating factors.

It was held that in present case, the motive of the accused to take life was to become rich by not doing hard work but by demanding ransom after kidnapping a young, innocent boy of 8 years. Thus, having considered all the circumstances and facts on record, it was held that the present case falls short of the “rarest of rare” cases where a death sentence alone deserves to be awarded to the appellants. It was held that it appears to SC in light of all cumulative circumstances that the cause of justice will be effectively served by invoking the concept of special sentencing as evolved earlier by it in the case of Union of India v. V. Sriharan & Ors. {(2016) 7 SCC 1}. 

The present appeals before the SC were directed against the judgment and order passed by the High Court of Judicature at Bombay (Nagpur Bench) whereby the appeals filed by the appellants Rajesh Daware and Arvind Singh against their conviction for offences punishable under Section 364A read with Section 34 of the Indian Penal Code, 1860 and Section 302 read with Section 34 IPC was dismissed by confirming the death sentence imposed upon them by the learned Sessions Judge, Nagpur.

Resultantly, before the SC, the present appeals succeeded in part as far as conversion of death sentence into life imprisonment, as aforesaid. However, the Judgment and Order passed by the learned Trial Court and confirmed by the High Court convicting the accused for the offences punishable under Sections 302 and 364A read with Section 34 IPC was  confirmed by the SC in toto.