Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Reference No. 01 of 2011 tate of Uttarakhand ...…………. Applicant / Appellant S versus Imtiyaz alias Raj Singh alias Rahul Verma & others ...…………. Convicts / Respondents Mr. Amit Bhatt, Addl. Govt. Advocate, for the applicant / State. Mr. L.K. Tiwari, Amicus Curiae for the convicts / respondents Kailash Singh and Rajendra Singh. along with Criminal Reference No. 02 of 2011 S tate of Uttarakhand ...…………. Applicant / Appellant versus Harish Singh ...…………. Convict / Respondent Mr. Amit Bhatt, Addl. Govt. Advocate for the applicant / State. Mr. L.K. Tiwari, Amicus Curiae for convict / respondent Harish Singh. and 2 Criminal Appeal No. 75 of 2011 Is rael alias Gudda. ...………… Appellant (in jail) versus State of Uttarakhand ...…………. Respondent Mr. M.K. Agarwal, Advocate for the appellant. Mr. Amit Bhatt, Addl. Govt. Advocate for respondent State. and Criminal Appeal No. 76 of 2011 Is rael alias Gudda. ...………… Appellant (in jail) versus State of Uttarakhand ...…………. Respondent Mr. M.K. Agarwal, Advocate for the appellant. Mr. Amit Bhatt, Addl. Govt. Advocate for respondent State. and Criminal Appeal No. 80 of 2011 aushad @ Rinku @ Rohit N ...………… Appellant (in jail) versus State of Uttarakhand ...…………. Respondent 3 Mrs. Nishat Intezar and Mr. Ahrar Baig, Advocates for the appellant. Mr. Amit Bhatt, Addl. Govt. Advocate for respondent State. and Criminal Appeal No. 81 of 2011 aushad @ Rinku @ Rohit N ...………… Appellant (in jail) versus State of Uttarakhand ...…………. Respondent Mrs. Nishat Intezar and Mr. Ahrar Baig, Advocates for the appellant. Mr. Amit Bhatt, Addl. Govt. Advocate for respondent State. and Criminal Appeal No. 82 of 2011 aushad @ Rinku @ Rohit N ...………… Appellant (in jail) versus State of Uttarakhand ...…………. Respondent Mrs. Nishat Intezar and Mr. Ahrar Baig, Advocates for the appellant. Mr. Amit Bhatt, Addl. Govt. Advocate for respondent State. and Criminal Jail Appeal No. 27 of 2011 tiyaaz Khan @ Raj Singh @ Rahul Verma Im ...………… Appellant (in jail) versus State of Uttarakhand ...…………. Respondent 4 Mr. Rajeev Sharma, Amicus Curiae for the appellant. Mr. Amit Bhatt, Addl. Govt. Advocate for respondent State. and Criminal Appeal No. 88 of 2011 H arish Singh ...………… Appellant (in jail) versus State of Uttarakhand ...…………. Respondent Mr. Prabhakar Joshi, Advocate for the appellant. Mr. Amit Bhatt, Addl. Govt. Advocate for respondent State. and Criminal Appeal No. 89 of 2011 H arish Singh ...………… Appellant (in jail) versus State of Uttarakhand ...…………. Respondent Mr. Prabhakar Joshi, Advocate for the appellant. Mr. Amit Bhatt, Addl. Govt. Advocate for respondent State. and Criminal Appeal No. 90 of 2011 H arish Singh ...………… Appellant (in jail) versus State of Uttarakhand ...…………. Respondent 5 Mr. Prabhakar Joshi, Advocate for the appellant. Mr. Amit Bhatt, Addl. Govt. Advocate for respondent State. and Criminal Jail Appeal No. 19 of 2011 H arish Singh ...………… Appellant (in jail) versus State of Uttarakhand ...…………. Respondent Mr. L.K. Tiwari, Amicus Curiae for the appellant. Mr. Amit Bhatt, Addl. Govt. Advocate for respondent State. JUDGMENT Coram : Hon’ble Barin Ghosh, C.J. Hon’ble U.C. Dhyani, J. Per: U.C. Dhyani, J. These two references have been made under Section 366 of the Code of Criminal Procedure, 1973 by the Sessions Judge, Almora, for affirmation of the sentence of death awarded by said court against the convicts / appellants Imtiyaz, Rajendra Singh, Kailash Singh and Harish Singh under Section 302 read with Section 120-B of the Indian Penal Code, 1860. Aforesaid convicts / appellants along with Naushad and Israel have been further convicted under Section 394 of I.P.C. and sentenced to rigorous imprisonment for a period of seven years and also directed to pay fine of ` 5,000/- each. Convicts / appellants Imtiyaz, Rajendra 6 Singh, Naushad and Harish Singh are also convicted under Section 25 of the Arms Act and sentenced to rigorous imprisonment for a period of three months and directed to pay fine of ` 1,000/- each. Convicts / appellants Imtiyaz, Rajendra Singh, Kailash Singh, Harish Singh, Naushad and Israel are further convicted under Section 224 of I.P.C. and sentenced to rigorous imprisonment for a period of one year. All the six have also been convicted under Section 225 of I.P.C. and sentenced to rigorous imprisonment for a period of five years and directed to pay fine of ` 5,000/- each. They have been further convicted under Section 225-B of I.P.C. and sentenced to rigorous imprisonment for a period of three months vide impugned judgment and order dated 31.03.2011, passed by Sessions Judge, Almora, in Sessions Trial No. 33 of 2005. All the sentences are directed to run concurrently by the trial court. Against said order, appeals have also been filed by the convicts. 2. Heard learned counsel for the parties and perused the lower court record. 3. It is a case of murder of three police constables. Prosecution story, in brief, is that convicts / appellants Rajendra Singh and Harish Singh were lodged in District Jail, Almora. On 15.01.2005, the two were on transit remand in connection with their date fixed in the court of Judicial Magistrate, Ranikhet and were being 7 escorted by Constables Girish Chandra, Mahesh Singh, Sanjay Kumar and Paras Singh. The three constables were having two service rifles, two handcuffs, one rope and a stick with them. As Constable Paras Singh was not feeling well, he alighted from the vehicle before they could reach the court. After returning from the court, they hired a taxi, two other persons who were known to convict Rajendra Singh also boarded the same taxi and they proceeded for Almora. Inside the taxi, in the first seat driver and 2-3 other passengers were there, in the middle seat the three constables boarded, and in the back seat, convict / appellants Rajendra Singh, Harish Singh and two other persons were sitting. On his way to Almora, near Kosi at Querali, four persons who were sitting on the rear seat fired shots on the constables. Two of the constables got injuries. When the third constable noticed shots being fired, he tried to apprehend them, but he too received gunshot injuries in said incident. In the meantime, the driver stopped the vehicle. In the scuffle the pistol of one of the accused fell down in the vehicle. The accused threatened the driver and forced him to search for the missing pistol. While he was searching for the pistol, the accused picked up the keys of the vehicle along with two rifles, and fled from the scene of occurrence boarding another vehicle which was following the hired taxi. Driver of the taxi immediately took the vehicle to the Base Hospital at Almora, where two of the constables were declared brought dead, and the third breathed his last in 8 the hospital. On receiving the information, Station House Officer, Almora rushed to the hospital and took the vehicle in his possession. P.W. 15 Sr. Sub Inspector Rami Ram prepared the inquest report and recovered one 9 m.m. pistol from underneath the seat. He also prepared the recovery memo in this regard. Driver of the vehicle Devendra Singh lodged the FIR of said incident on the very day i.e. 15.01.2005. In the FIR, he stated that he is driver of Tata Sumo bearing Registration No. U.P. 28-01 / 790. On 15.01.2005, when he was standing on Ranikhet Taxi Stand, waiting for the passengers to be ferried from Ranikhet to Almora, three police constables carrying two rifles, and two persons in private dress came there. The two were introduced as accused. Meanwhile, two other persons came there and boarded the vehicle. The three police constables boarded in the middle seat. Accused and two other persons boarded on the back seat. Three passengers along with driver boarded the front seat. At about 02:00 P.M., 4 kms. ahead of Querali towards Kosi, he heard sound of shots being fired in the vehicle. He immediately stopped the vehicle and saw two constables in pool of blood. The persons sitting on back seat were trying to snatch the rifles of the constables and the third constable was jostling with them. In the scuffle, pistol from the hands of a person whom the others were addressing as Rajendra, fell down. Meanwhile, the third constable was also shot at by them. They also took the driver on gunpoint and 9 asked him to search for the missing pistol. At the time of alighting from the vehicle, they took the service rifles of the constables with them along with keys of the vehicle. According to the driver he immediately took the vehicle to base hospital, where two constables were declared brought dead and the third was on deathbed. The scribe of the FIR has stated that he can recognize the persons who fired at the police constables, as he has seen them. The pistol was also recovered on his disclosure underneath the seat of the vehicle. On the basis of said report, Patwari of patwari circle Querali, initially registered Crime No. Nil of 2005, relating to offences punishable under Section 302, 307 and 394 of I.P.C. on 15.01.2005 against Rajendra and three unknown person. A separate Crime was also registered by Patwari Querali, relating to offences punishable under Section 224, 225, 225-B of I.P.C., on 15.01.2005, against Rajendra Singh, Harish Singh and others. The investigation of the case also proceeded. The police took the dead bodies of the three constables in their possession, and prepared inquest reports of Girish Chandra, Mahesh Singh and Sanjay Kumar Ext. Ka-16, Ext. Ka-21 and Ext. Ka-25 respectively. The police further got prepared other necessary papers and sent the three dead bodies for postmortem examination. After recovery of a 9 m.m. pistol with magazine and six live cartridges with three empty cartridges from the vehicle, recovery memo in this regard was prepared on 15.01.2005. On the same day i.e. 15.01.2005, the 10 service rifle 303 bore No. Z04065 was recovered by Inspector K.S. Hyanki from the possession of driver of taxi No. U.P. 01 / 4302, and recovery memo of the same was prepared on the same day. The other rifle No. 09264 butt No. 173 was recovered from the possession of Patwari circle Querali. The accused namely Kailash Singh, Naushad, Imtiyaz, Israel, Rajendra Singh were arrested separately from different places. A country made revolver 315 bore with two cartridges of 315 bore were recovered from the possession of accused Naushad. From accused Imtiyaz one pistol, two magazine automatic with 20 cartridges were recovered. Total 26 cartridges were recovered from his possession. Accused Israel was arrested in connection with Crime No. 707 of 2004 under Section 394/395/397/120-B and 216-A of I.P.C. by Jabalpur police. During his arrest at Jabalpur he confessed before police about crime committed by him at Almora with the help of his associates. On receiving said information from Jabalpur police he was brought to Almora to face trial. Accused Harish Singh was arrested by Delhi police. He made a confessional statement before the Delhi police about crime committed by him at Almora along with other accused. On his disclosure statement on 18.02.2005, Delhi police recovered two pistols with magazines and a third pistol, all from two different places. According to his disclosure statement, the pistols have been used in the crime of murder. The Delhi police handed accused 11 Harish Singh to the Uttarakhand police. On 28.02.2005 on his disclosure handcuffs, cotton rope and blade were also recovered. After getting forensic report, and on completion of investigation, prosecution submitted charge sheet relating to offences punishable under Section 302/120-B and 394 of I.P.C. A separate charge sheet was filed relating to offences punishable under Section 224/225 and 225-B of I.P.C. Also, a separate charge sheet was filed in respect of offence punishable under Section 25 of Arms Act. The accused Kailash Singh, Naushad, Imtiyaz, Israel and Rajendra Singh were charged for the offences punishable under Section 302/120-B/394/224/225/225-B of I.P.C. Accused Rajendra Singh, Imtiyaz, Naushad were further charged for the offence punishable under Section 25 of the Arms act. All of them pleaded not guilty and claimed to be tried. After completion of investigation, prosecution submitted charge sheet relating to offences punishable under Section 302/120-B and 394 of I.P.C. against accused Harish Singh. A separate charge sheet was filed relating to offences punishable under Section 224/225 and 225-B of I.P.C. against him. Also, a separate charge sheet was also filed in respect of offence punishable under Section 25 of Arms Act against accused Harish Singh. Accused Harish Singh was charged for the offences punishable under Section 302/120-B/394/224/225/225-B of I.P.C. He was further charged for the offence punishable under Section 25 of 12 the Arms act. He also pleaded not guilty and claimed to be tried. 4. When proceedings of trial started, evidence were recorded in Sessions Trial No. 33 of 2005 State vs Harish Singh. He was granted pardon and he accepted to be an approver in the case, but when he resiled from the conditions laid down in his pardon, his file was separated and file of other accused Rajendra Singh, Naushad, Imtiyaz and Kailash Singh was consolidated and evidence was recorded in Sessions Trail No. 36 of 2005, while the evidence against accused Harish Singh was recorded in Sessions Trial No. 33 of 2005 after separation of his trial. In the file of Sessions Trial No. 33 of 2005, when accused Harish Singh was examined as approver, his evidence was recorded as P.W.2, but when he resiled his evidence was excluded. 5. To prove its case, prosecution got examined P.W. 1 Rajendra Singh (examined as P.W.4 in S.T. No. 33 of 2005), P.W.2 Dr. Pradeep Kumar Upreti (examined as P.W.3 in S.T. No. 33 of 2005); P.W.3 Dhurav Prakash Tripathi (examined as P.W.1 in S.T. No. 33 of 2005); P.W.4 Vinod Vaishnav (examined as P.W.2 in S.T. No. 33 of 2005); P.W.5 S.I. Trilok Ram (in both S.T.); P.W.6 Amar Chand Sharma; P.W.7 Suresh Chandra; P.W.8 Chandra Singh Bisht; P.W.9 Suresh Chandra; P.W.10 Constable Dalip Kumar; P.W.11 S.I. Uttam Singh; P.W.12 Head Constable Tej 13 Singh (examined as P.W.8 in S.T. No. 33 of 2005); P.W.13 Constable Hem Chandra Tiwari (examined as P.W.9 in S.T. No. 33 of 2005); P.W.14 Devendra Singh (examined as P.W.10 in S.T. No. 33 of 2005); P.W.15 Rami Ram (examined as P.W.11 in S.T. No. 33 of 2005); P.W.16 Prakash Chandra; P.W.17 Devendra Prasad (examined as P.W.13 in S.T. No. 33 of 2005); P.W.18 S.I. Girish Chandra (examined as P.W. 14 in S.T. No. 33 of 2005); P.W.19 Constable Paras Singh (examined as P.W.15 in S.T. No. 33 of 2005); P.W.20 Amar Chandra Sharma; P.W.21 Kundan Ram; P.W.22 Prakash Chandra Tamta; P.W.23 Inspector Kishan Singh Hyanki (examined as P.W.13 in S.T. No. 33 of 2005); P.W.24 S.O. Rashid and P.W.25 Prakash Chandra Tamta. Besides this, in Sessions Trial No. 33 of 2005, prosecution also got examined P.W.6 Head Constable Jitendra Singh; P.W.7 Sushil Kumar; P.W.16 Naresh Kumar and P.W.17 Arvind Dangwal. 6. The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they alleged the same to be false and stated that they have been falsely implicated in the crime. They also denied the prosecution version relating to murder of three constables. About the evidence of approver Harish Singh, the accused told that they have no knowledge and his statement is not correct, and denied the allegations in the evidence of accused Harish Singh. Accused Harish Singh was also examined under 14 Section 313 of Cr.P.C. He admitted that pardon was granted to him on 15.04.2006. He accepted the entire prosecution story, but denied the recovery made on his behalf by Delhi police. However, he admitted that on his disclosure on 28.02.2005, handcuff, rope, blade and wrapper were recovered. Showing his innocence he stated that the other persons committed the offence and he was bound to run away with them. He also stated that Rajendra Singh, Kailash and Imtiyaz were the persons who committed murder. Narrating entire scene of occurrence he told which of the accused killed whom. However, no evidence in defence was adduced on behalf of the accused. The trial court, after hearing the parties, found that prosecution has successfully proved charges, as mentioned above, against the accused and after conviction, sentenced them accordingly. 7. Learned Sessions Judge, Almora has submitted these two references to this Court under Section 366 of the Cr.P.C. We have heard learned counsel for the convicts / appellants at length, and have gone through the entire evidence on record. At the very outset, we do not think that a fresh enquiry should be made into or additional evidence taken upon any point bearing upon the guilt or innocence of the convicts, as desired under Section 367(1) of Cr.P.C. 15 8. Proviso to Section 368 of Cr.P.C. stipulates that no order of confirmation shall be made under this Section until the period allowed for preferring an appeal has expired, or if an appeal is presented within such period, until such appeal is disposed of. 9. It may be noted here that no appeals have been preferred by the convicts Rajendra Singh and Kailash Singh, whereas appeals have been preferred by rest of the convicts. 10. Therefore, no order of confirmation should be made until the appeals are disposed of. We will be dealing with the appeals preferred by the convicts in the second part of the judgment. In this first part, we are confronted with the vital question whether it is one of the rarest of rare cases in which death penalty should be imposed? 11. We proceed on the premise as if Kailash Singh and Rajendra Singh have also preferred appeal. We have heard their learned counsel on REFERENCE made by learned Sessions Judge, Almora. 12. Whether death penalty should be imposed or imprisonment for life is an adequate sentence has triggered a debate throughout the globe all these years. Human Right Activists have been for imprisonment for life and abolition of death penalty, whereas the 16 protagonists of those who have lost their sole bread earners have been propagating and advocating for death penalty. These are two swings of the pendulum which are to be measured by the courts while imposing sentence. We have tried to encapsulate the decisions which have been rendered by the Supreme Court of India and Indian High Courts after independence in this regard. A summary of the same is being forwarded hereunder: An accused found guilty of murder can be punished only in one of two ways namely (i) by death, (ii) by imprisonment for life. Life imprisonment is the minimum substantive sentence and the peremptory provision of section 302 of I.P.C. cannot be disregarded. The question of punishment under this section is really not one of the adequacy of the punishment, but is one of alternative punishment. The normal rules of adequacy of sentence will not apply because there is no latitude given by this section in regard to adequacy of sentence. While murder in its aggravated form and in absence of any extenuating factors connecting with crime, criminal or legal process, still is condignly visited with death penalty, a compassionate alternative of life imprisonment in all the other circumstances is gaining judicial ground. The proper exercise of the discretion in respect of the punishment, as in all cases of exercise of 17 discretion, be exercised judicially on a proper consideration of all the relevant facts and circumstances of the case keeping in view the broad objective of the sentence. A sentence of imprisonment for life can only be substituted if the facts justify the non-imposition of the extreme penalty of the law. The rule that normal sentence for the offence of murder is life imprisonment should be observed both in letter and spirit. Death sentence should be imposed in very extreme cases. Extreme Penalty of death sentence need not be inflicted except in grave or cases of extreme penalty. The Court is required to take notice of the manner, the nature of allegation and the magnitude of crime. Imposition of death penalty is exception rather than a rule, and further special reasons must be given. On the conviction with the help of Section 34 of I.P.C. for murder the liability being a constructive one, a sentence of death would not be appropriate. The extreme penalty of death is to be awarded to a convict only in those discerning few cases where the murder committed by him is shocking, brutal diabolical and revolting; the tremors of which are felt not only in the family of whose member is killed but are felt far and wide. The said murder should create not only a problem of law and order but a problem of public order where the even tempo of life is disturbed and the entire machinery of the society is thrown out of gear. 18 The sentence of death should be reserved for the rarest of rare cases after a due consideration of both mitigating and aggravating circumstances. What circumstances bring a particular case under the category of rarest of rare cases vary from case to case depending upon the nature of the crime, weapon used and the manner in which it is perpetrated etc. The number of persons murdered is a consideration but that is not the only consideration for imposing death penalty unless the case falls in the category of ‘rarest of the rare cases’. The courts must keep in view the nature of the crime, the brutality with which it was executed, the antecedents of the criminal, the weapons used etc. It is neither possible nor desirable to catalogue all such factors and they depend upon case to case. The murder of Smt. Indira Gandhi, the then Prime Minister, by Security Guards was a rarest of rare case and awarding of death sentence to assassin and his conspirator was found just and proper. 13. The following cases may also be cited for the purpose of elucidating whether a particular case falls under rarest of rare case so as to attract death penalty, or is it otherwise: a) Subhash Ram Kumar Bina alias Vakil vs State of Maharashtra, AIR 2003 SC 249. b) Kehar Singh vs Delhi Administration, AIR 1988 SC 1883. 19 c) State of Tamil Nadu, through Superintendent of Police (CBI / SIT) vs Nalani, AIR 1999 (5) SC 2640. 14. In the instant case no proper security was provided by the administration. On the fateful day, the police personnel took the accused persons for production before the court at Ranikhet in a private jeep, which was carrying persons from public also. Either a jail vehicle or a police van should have been provided to the police personnel or the police personnel should have hired a vehicle exclusively for them and the accused persons, who were required to be produced before the court at Ranikhet. Unfortunately, this was not done. Hence, we are of the considered opinion that the instant case does not fall under the category of rarest of rare cases, and therefore, the death sentence awarded to Imtiyaz, Rajendra Singh, Kailash Singh and Harish Singh should not be confirmed. Whether the prosecution has been able to prove the cases against the convicts / appellants under these sections, that aspect of the matter will be dealt with by this court in the following part of judgment. We have simply expressed our opinion on the point whether it is a fit case in which death sentence should be confirmed or not, in case the conviction against the convicts / appellants sustains. We, accordingly, refuse to confirm the death sentences under Section 368(a) of the Code of Criminal Procedure, 1973. 20 15. Appeals have been filed by the convicts Imtiyaz alias Raj Singh alias Rahul Verma, Harish Singh, Naushad alias Rinku alias Rohit and Israel alias Gudda. Convicts Rajendra Singh and Kailash Singh have not preferred any appeal till date. We have however perused the entire record and considered the arguments which have