Santosh Kumar Satishbhushan Bariyar vs State Of Maharashtra

BACKGROUND FACTS The facts in brief are that the accused were said to have hatched a conspiracy to abduct either one Abhijeet Kothari or one Kartikraj (the deceased) and to demand a ransom of Rs. 10 lacs from the victim's family. Kartikraj was the one who was eventually kidnapped. He was working as a junior clerk in Central Railways at Pune. Ramraj, his father (PW-49) was, at the relevant time, working as Manager in NABARD, Hyderabad. Santosh 2 Ramraj (PW-50), the younger brother of the deceased was staying with his father.

Santosh Ramraj received a phone call on 8th August, 2001 at his residential telephone number disclosed by the caller, that his brother Kartikraj was in his custody. Ransom for a sum of Rs. 10 lacs was allegedly demanded. He was threatened that if the said amount was not paid within 24 hours then Kartikraj would be killed. The family of the deceased is said to have received some more threatening calls thereafter. Ramraj (PW-49), the father of the deceased also talked to the caller and asked him to give them time till the next day morning so that he could make arrangements for the money.

Ramraj (PW-49) thereafter talked to his friend Dattatraya Bhandange (PW-2) who, at the relevant time, was working as Manger in NABARD, Pune. Bhandange (PW-2) did his best to trace out Kartikraj but failed in his attempts.

A draft of the First Information Report was faxed by Ramraj to Bhandange's (PW-2)'s Pune office, requesting him to lodge the same at the concerned Police Station. A photograph of Kartikraj was also sent along. 3 Pursuant thereto, a First Information Report was lodged for offences punishable under Sections 363 and 387 of the Indian Penal Code. The investigation was handed over to the Crime Branch. Santoshraj (PW-2) informed the Investigating Officer, API Lotlikar on telephone that he had again received a phone call from the kidnappers, asking him to come to Bombay with Rs.10 lacs and a mobile phone. To this API Lotlikar asked him to inform the caller that instead of going himself, he would be sending a friend of his to Bombay with the money. He told him to tell to the caller that the friend's name was Sham Naidu and that his mobile number was 9822******. Santoshraj acted accordingly. Kidnappers thereafter started calling API Lotlikar on his mobile phone thinking him to be Sham Naidu. Thus, keeping the kidnappers engaged in one conversation or the other, a trap was laid for them at Juhu on 12th August, 2001. Pursuant thereto Kumar Gaurav (PW-1), the approver and Accused Nos.2 and 3, Sanjeevkumar Mahendraprasad Roy and Sanothskumar Shrijailal Roy were arrested. Accused No.1, Santosh Kumar Satishbhushan Bariyar, was arrested at Andheri Railway Station. Whereabouts of Kartikraj was, however, not disclosed. The accused were thereafter produced before the Police Inspector, Dilip Bhaskar Shinde (PW-53) on 13th August,2001 in his office at Pune and were subsequently arrested.

4 One of the accused Kumar Gaurav, who has since been granted pardon, addressed a letter to the Commissioner of Police, Pune City on or about 29th October, 2001 stating that Kartikraj had been murdered by the accused on 8th August, 2001. He expressed his repentance. He also expressed his desire to make a confession. He was produced before J.M.F.C., Pune at 2.00 p.m. on 31st October, 2001. He was produced again on 1st November, 2001 when he made a statement under Section 164 of the Code of Criminal Procedure, which was recorded.

Upon completion of investigation, a chargesheet was filed whereupon cognizance of the offence was taken. The case was ultimately committed to the Court of Sessions by the learned Magistrate by an order dated 3rd January, 2002.

Before the learned Sessions Judge, Police Inspector Dilip Bhaskar Shinde (PW-53) made an application purported to be under Section 307 of the Code of Criminal Procedure on or about 21st March, 2002 praying for grant of pardon to Kumar Gaurav (PW-1). The learned Sessions Judge passed an order on 3rd April, 2002 granting pardon to him. 5 PROSECUTION CASE As per the statement of the Kumar Gaurav (PW-1) on which the prosecution principally relies upon, he himself, Santosh Kumar Roy (A3) and Sanjeeb Kumar Roy (A2) were in search of better career prospects and all three of them decided to try their luck in the city of Bombay. Since they had no place to stay, Sanjeeb Kumar Roy (A2) contacted the appellant who was, at the relevant time, living in Pune. He was able to arrange a temporary accommodation for all of them at Kudale Patil Aangan Society in Pune.

As per Kumar Gaurav (PW-1), they hatched a plan to earn around 10 to 15 lacs by kidnapping two Santosh Kumar Bariyar's (A1's) friends by demanding ransom from their families. Appellant is said to be the master mind behind the entire plan; it was he who had floated the idea of kidnapping. According to him, he had two friends of his in mind, namely Abhijeet Kothari, whose father was a doctor, and Kartikraj, (the deceased) whose father was the Manager in NABARD. Both the families, as per the appellant, being rich, it was expected that they would be able to get a hefty sum of money as ransom upon kidnapping either of them. As per his plan if any difficulties arose they would kill the victim. He told them that they would cut the body into pieces and throw them at some place after putting 6 them in different bags. He asked all three, whether they were ready for such a plan. All of them consented.

Next day, i.e., on the 7th August, Santosh Kumar Bariyar (A1) contacted Kartikraj (the deceased) and convinced him to come to his place. In the night he brought Kartikraj to his Apartment. Kartikraj, believing that he had been invited to celebrate his friends' marriage watched movies with them till almost midnight. Around midnight the appellant gave a purported signal to Sanjeeb Kumar Roy (A2) to execute the plan. Appellant then went behind the deceased and placed a sickle on his neck. There after both the hands of the deceased were tied with a rope and his mouth with a napkin. The deceased was then dragged to the toilet where he was assaulted with kicks and blows. All this went on for two hours. Then the accused called up the family of the deceased and asked them to pay a ransom of Rs. 10 lacs if they wanted to see Kartikraj alive again.

8 However the life of the deceased could have been saved had the landlord of the apartment who had come to check up on his flat the next morning suspected anything foul in the house, but unfortunately he did not. Apprehending that they might be caught, Santosh Kumar Bariyar (A1) and Kumar Gaurav (PW1) decided that it would no longer be safe to keep the deceased alive and that it was in their best interest to kill him. To end his life the appellant and Sanjeeb Kumar Roy (A2) tied a rope around his neck and pulled at it from both ends. The deceased tried to struggle but his movement stopped after sometime. His dead body was then dragged to the toilet. Santosh Kumar Bariyar (A1) then separated the head of the deceased with the hacksaw blade and a sickle. He then kept the head in a polythene bag. Thereafter he separated both the hands of the deceased. The hands too were kept in polythene bags. He then asked Sanjeeb Kumar Roy (A2) to cut the legs of the deceased, which he did. Kumar Gaurav (PW-1) and Sanjeeb Kumar Roy (A2) packed the legs into separate bags.

Approximately two hours were spent in cutting the body of the deceased. They then disposed of these bags containing the body parts of the deceased at different places. They also disposed of the belongings of the deceased in a similar fashion. They thereafter also cleared off all the items from the flat.

An inherent problem with consideration of public opinion is its inarticulate state. Bachan Singh (supra) noted that judges are ill-equipped to capture public opinion:

Capital sentencing is one such field where the safeguards continuously take strength from the Constitution, and on that end we are of the view that public opinion does not have any role to play. In fact, the case where there is overwhelming public opinion favouring death penalty would be an acid test of the constitutional propriety of capital sentencing process. 51

Sentencing discretion is also a kind of discretion and is shall be exercised judicially in light of the precedents.

35. These are some of the larger issues that make us feel reluctant in confirming the death sentence of the appellant.

Equal protection clause ingrained under Article 14 applies to the judicial process at the sentencing stage. We share the court's unease and sense of disquiet in Swamy Shraddananda case and agree that a capital sentencing system which results in differential treatment of similarly situated capital convicts effectively classify similar convict differently with respect to their right to life under Article 21. Therefore, an equal protection analysis of this problem is appropriate.

3. THE "RAREST" OF "RARE CASES"

There is a difference between encroaching upon rights for the purpose of punishment and destroying them altogether. It is that difference with which we are concerned in the present case."

The fact that capital sentence is a live penalty in India; we should strive to tune the practice to the evolving standards of a maturing society. The normative thresholds attached thereto and evolving constitutional sensibilities shall continue to throw fresh challenges. We have not fully resolved the dilemma arising from the fact that the Constitution prohibits excessive punishment borne out of undue process, but also permits, and contemplates that there will be capital punishment arising out of an exercise of extremely wide discretion. This dilemma is inherently difficult to resolve. And we should refrain from enforcing any artificial peace on this landscape.

wide Perspective, Oxford, Clarendon Press, third edition, 2002, p. 230] [See also Kennedy v. Lousiana (128 S. Ct. 2641)] MITIGATING CIRCUMSTANCES Determination, as to what would be the rarest of rare cases, is a difficult task having regard to different legal principles involved in respect 94 thereof. With the aforementioned backdrop, we may notice the circumstances which, in our opinion, should weigh with us for not imposing the extreme penalty.

It must be noted that the discretion given to the court in such cases assumes onerous importance and its exercise becomes extremely difficult because of the irrevocable character of death penalty. One of the principles which we think is clear is that the case is such where two views ordinarily could be taken, imposition of death sentence would not be appropriate, but where there is no other option and it is shown that reformation is not possible, death sentence may be imposed.

Section 354(3) of the Code of Criminal Procedure requires that when the conviction is for an offence punishable with death or in the alternative with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and in the case of sentence of death, the special reasons thereof.

We do not think that the reasons assigned by the courts below disclose any special reason to uphold the death penalty. The discretion granted to the courts must be exercised very cautiously especially because of 97 the irrevocable character to death penalty. Requirements of law to assign special reasons should not be construed to be an empty formality.

We have previously noted that the judicial principles for imposition of death penalty are far from being uniform. Without going into the merits and demerits of such discretion and subjectivity, we must nevertheless reiterate the basic principle, stated repeatedly by this Court, that life imprisonment is the rule and death penalty an exception. Each case must therefore be analyzed and the appropriateness of punishment determined on a case-by- case basis with death sentence not to be awarded save in the `rarest of rare' case where reform is not possible. Keeping in mind at least this principle we do not think that any of the factors in the present case discussed above warrants the award of the death penalty. There are no special reasons to record the death penalty and the mitigating factors in the present case, discussed previously, are, in our opinion, sufficient to place it out of the "rarest of rare" category.

For the reasons aforementioned, we are of the opinion that this is not a case where death penalty should be imposed. The appellant, therefore, instead of being awarded death penalty, is sentenced to undergo rigorous imprisonment for life. Subject to the modification in the sentence of 98 appellant (A1) mentioned hereinbefore, both the appeals of the appellant as also that of the State are dismissed.

May 13, 2009 99