Case: NAND KISHORE Vs. THE STATE OF MADHYA PRADESH

than 14 years and the other death, the Court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court i.e. the vast hiatus between 14 years imprisonment and death. It needs to be emphasised that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years imprisonment would amount to no punishment at all. In the case of Neel Kumar v. State of Haryana (2012) 5 SCC 766 which is a case of rape and murder of a minor, while confirming the conviction, this Court, on the facts and circumstances of the case and having regard to the evidence on record, has modified the death sentence with award of life imprisonment and directed that the accused must serve a minimum of 30 years of jail without remission. Paragraphs 37, 38 and 39 of the said judgment read as under : 37. A three-Judge Bench of this Court in Swamy Shraddananda (2) v. State of Karnataka (2008) 13 SCC 767 , considering the facts of the case, set aside the sentence of death penalty and awarded the life imprisonment but further explained that in order to serve the ends of justice, the appellant therein would not be released from prison till the end of his life. 38. Similarly, in Ramraj v. State of Chhattisgarh (2010) 1 SCC 573 , this Court while setting aside the death sentence made a direction that the appellant therein would serve minimum period of 20 years including remissions earned and would not be released on completion of 14 years imprisonment. 39. Thus, in the facts and circumstances of the case, we set aside the death sentence and award life imprisonment. The appellant must serve a minimum of 30 years in jail without remissions, before consideration of his case for premature release. In the case of Selvam v. State (2014) 12 SCC 274 which is a case involving murder and rape of a child aged about 9 years, without interferring with the finding of conviction, this Court, in the facts and circumstances of the case and considering the evidence on record, imposed a sentence of 30 years in jail without remission. In the case of Tattu Lodhi v. State of Madhya Pradesh (2016) 9 SCC 675 in a case involving kidnapping of minor girl aged about 7 years and attempt to rape and murder, in the facts of the case and the evidence on record, death sentence was modified to imprisonment for life with a direction not to release the accused from prison till he completes actual period of 25 years of imprisonment. Further, in the case of Raj Kumar v. State of Madhya Pradesh (2014) 5 SCC 353 in similar circumstances, this Court has modified death sentence and awarded life imprisonment and directed the appellant therein to serve a minimum of 35 years in jail without remission. Further, in the case of Anil v. State of Maharashtra (2014) 4 SCC 69 where in a case involving murder of a 10 year old boy who was subjected to carnal intercourse, this Court has held as under : 36. The legislative policy is discernible from Section 235(2) read with Section 354(3) CrPC, that when culpability assumes the proportions of depravity, the Court has to give special reasons within the meaning of Section 354(3) for imposition of death sentence. A legislative policy is that when special reasons do exist, as in the instant case, the Court has to discharge its constitutional obligations and honour the legislative policy by awarding appropriate sentence, that is, the will of the people. We are of the view that incarceration for a further period of thirty years, without remission, in addition to the sentence already undergone, will be an adequate punishment in the facts and circumstances of the case, rather than death sentence. Ordered accordingly. 14. The learned counsel appearing for the State has placed reliance on the judgment of this Court in the case Mukesh & Anr. v. State (NCT of Delhi) & Ors. (2017) 6 SCC 1 [known as Nirbhaya case] in support of her case and submitted that applying the ratio laid down in the aforesaid judgment, the case falls in the rarest of rare cases attracting death penalty. With reference to above said arguments of learned counsel for the State, it is to be noticed that the case of Mukesh (supra) is distinguishable on the facts from the case on hand. It is to be noticed that Mukesh (supra) is a case of gang-rape and murder of the victim and an attempt to murder of the male victim. It was the specific case of the prosecution that the crimes were carried out pursuant to a conspiracy and the accused were convicted under Section 120-B of the IPC apart from other offences. Further, as a fact, it was found in the aforesaid case that the accused-Mukesh had been involved in other criminal activity on the same night. Further, it is also to be noticed that in the aforesaid case, there was a dying declaration, eye witness to the incident etc. So far as the present case is concerned, it solely rests on circumstantial evidence. It is the specific case of the appellant that he was denied the proper legal assistance in the matter and he is a manhole worker. The appellant was aged about 50 years. Further, in this case there is no finding recorded by the courts below to the effect that there is no possibility of reformation of the appellant. We are of the view that the reasons assigned by the trial court as confirmed by the High Court, do not constitute special reasons within the meaning of Section 354(3) of the Cr.PC to impose death penalty on the accused.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]10. So far as the conviction is concerned, we are satisfied with the findings recorded by the trial court which are based on the appreciation of oral and documentary evidence on record.By applying the last seen theory to the facts of the case and further considering the forensic and medical evidence on record, trial court has rightly recorded guilt of the accused for the offences alleged. Even the High Court, referring to the relevant evidence on record, has rightly confirmed the conviction of the appellant for the charges levelled against him.13. A useful reference can be made to the judgment in this regard in the case of Swamy Shradhananda(2) v. State of Karnataka. In the aforesaid judgment, while confirming the(1980) 2 SCC 684 (2008) 13 SCC 767 conviction for offence under Section 302 of IPC, this Court, having regard to the facts and circumstances of the case and considering the evidence on record, has substituted the death sentence by imposing imprisonment for life with a specific direction that he shall not be released from the prison till the rest of his life.With reference to above said arguments of learned counsel for the State, it is to be noticed that the case of Mukesh (supra)(2017) 6 SCC 1 is distinguishable on the facts from the case on hand. It is to be noticed that Mukesh (supra) is a case of gang-rape and murder of the victim and an attempt to murder of the male victim. It was the specific case of the prosecution that the crimes were carried out pursuant to a conspiracy and the accused were convicted under Section 120-B of the IPC apart from other offences. Further, as a fact, it was found in the aforesaid case that the accused-Mukesh had been involved in other criminal activity on the same night. Further, it is also to be noticed that in the aforesaid case, there was a dying declaration, eye witness to the incident etc. So far as the present case is concerned, it solely rests on circumstantial evidence. It is the specific case of the appellant that he was denied the proper legal assistance in the matter and he is a manhole worker. The appellant was aged about 50 years. Further, in this case there is no finding recorded by the courts below to the effect that there is no possibility of reformation of the appellant. We are of the view that the reasons assigned by the trial court as confirmed by the High Court, do not constitute special reasons within the meaning of Section354(3) of the Cr.PC to impose death penalty on the accused.