PAPPU versus THE STATE OF UTTAR PRADESH
[2022] 2 S.C.R. 13, Supreme Court of India, 2022
Outcome: Case Partly allowed (Granted)
Segment: Facts
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40.13. The case of Dhananjoy Chatterjee (supra), decided on
11.01.1994, had been that of rape and murder of a young girl about 18
years of age; and this Court found it justified to confirm the death sentence
for a cold-blooded and pre-planned murder after committing rape. Therein,
this Court essentially referred to the atrocity of the crime on the
defenceless and unprotected state of the victim; and observed that
imposition of appropriate punishment is the manner in which the Courts
respond to the society’s cry for justice against the criminals. This Court,
inter alia, observed as under: -
“15. In our opinion, the measure of punishment in a given case
must depend upon the atrocity of the crime; the conduct of the
criminal and the defenceless and unprotected state of the victim.
Imposition of appropriate punishment is the manner in which the
courts respond to the society’s cry for justice against the criminals.
Justice demands that courts should impose punishment befitting
the crime so that the courts reflect public abhorrence of the crime.
The courts must not only keep in view the rights of the criminal
but also the rights of the victim of crime and the society at large
while considering imposition of appropriate punishment.”
40.14. The case of Laxman Naik (supra), decided on 22.02.1994,
was that of offence of rape and murder of a 7-year-old girl by her own
uncle. This Court analysed the fact situation and said as under: -
“27. The hard facts of the
present case are that the appellant
Laxman is the uncle of the deceased and almost occupied the
status and position that of a guardian. Consequently the victim
who was aged about 7 years must have reposed complete
confidence in the appellant and while reposing such faith and
confidence in the appellant must have believed in his bona fides
and it was on account of such a faith and belief that she acted
upon the command of the appellant in accompanying him under
the impression that she was being taken to her village unmindful
of the preplanned unholy designs of the appellant. The victim was
a totally helpless child there being no one to protect her in the
desert where she was taken by the appellant misusing her
confidence to fulfil his lust. It appears that the appellant had
preplanned to commit the crime by resorting to diabolical methods
and it was with that object that he took the girl to a lonely place to
execute his dastardly act.”
PAPPU v. THE STATE OF UTTAR PRADESH
[DINESH MAHESHWARI, J.]
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SUPREME COURT REPORTS
[2022] 2 S.C.R.
40.15. Kamta Tiwari (supra), decided on 04.09.1996, was again
a case of rape followed by murder of a 7-year-old girl by a person who
was close to the family of the deceased and the deceased used to call
him “Tiwari uncle”. The girl was kidnapped by the accused and was
subjected to rape and then was strangulated to death and later, the dead
body was thrown into the well. The enormity of crime coupled with the
misuse of trust seem to have weighed with this Court in confirming the
death sentence.
41. It could readily be seen that while this Court has found it
justified to have capital punishment on the statute to serve as deterrent
as also in due response to the society’s call for appropriate punishment
in appropriate cases but at the same time, the principles of penology
have evolved to balance the other obligations of the society, i.e., of
preserving the human life, be it of accused, unless termination thereof is
inevitable and is to serve the other societal causes and collective
conscience of society. This has led to the evolution of ‘rarest of rare
test’ and then, its appropriate operation with reference to ‘crime test’
and ‘criminal test’. The delicate balance expected of the judicial process
has also led to another mid-way approach, in curtailing the rights of
remission or premature release while awarding imprisonment for life,
particularly when dealing with crimes of heinous nature like the present
one.
41.1. We
may proceed to deal with the question of sentence in
the present case while keeping in view the principles so evolved and
applied by this Court.
42. It could at once be noticed that both the Trial Court as also the
High Court have taken the abhorrent nature of crime alone to be the
decisive factor for awarding death sentence in the present case. As
noticed, the Trial Court convicted the appellant on 07.12.2016 and on the
next day, proceeded to award the sentence. The impugned sentencing
order of the Trial Court does not indicate if the appellant was extended
reasonable opportunity to make out a case of mitigating circumstances
by bringing relevant material on record. The sentencing order also fails
to satisfy if the Trial Court consciously pondered over the mitigating
factors before finding it to be a ‘rarest of rare’ case. The approach of
the Trial Court had been that the accused-appellant was about 33-34
years of age at the time of occurrence and was supposed to be sensible.
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The Trial Court would observe that ‘if such heinous crime is committed
by him, it is not justifiable to show any sort of mercy in the
punishment.’ The High Court though has made rather intense comments
on the menace of rape and brutal murder of children as also on the
society’s abhorrence of such crime12 but has, thereafter, proceeded to
confirm the death sentence with a cursory observation that there were
no substantial mitigating factors and the aggravating circumstances were
aplenty.
42.1. In other words, the impugned orders awarding and confirming
death sentence could only be said to be of assumptive conclusions, where
it has been assumed that death sentence has to be awarded because of
the ghastly crime and its abhorrent nature. The tests and the norms laid
down in the relevant decisions commencing from those in Bachan Singh
(supra) seem not to have acquired the requisite attention of the Trial
Court and the High Court. It would have been immensely useful and
pertinent if the High Court, while taking up the question of confirmation
of death sentence and making several comments in regard to the abhorrent
nature of crime and its repulsive impact on society, would have also
given due consideration to the equally relevant aspect pertaining to
mitigating factors before arriving at a conclusion that option of any other
punishment than the capital one was foreclosed. The approach of the
Trial Court and the High Court in this matter while awarding sentence
could only be disapproved; and we do so in no uncertain terms.
43. What has been observed and held hereinabove leaves us with
the question as to whether in the present case, capital punishment is
called for or it should be substituted by any other sentence.
43.1. The heinous nature of crime like that of present one, in
brutal rape and murder of a seven-year-old girl child, definitely discloses
aggravating circumstances, particularly when the manner of its
commission shows depravity and shocks the conscience. But, at the
same time, it is noticeable that the appellant has no criminal antecedents,
comes from a very poor socio-economic background, has a family
comprising of wife, children and aged father, and has unblemished jail
12 In the words of the High Court, ‘beastly act of the accused person- appellant Pappu
shakes the confidence of society and tears to shreds the warp and woof of the social
fabric’
PAPPU v. THE STATE OF UTTAR PRADESH
[DINESH MAHESHWARI, J.]
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[2022] 2 S.C.R.
conduct. When all these factors are added together and it is also visualised
that there is nothing on record to rule out the probability of reformation
and rehabilitation of the appellant, in our view, it would be unsafe to treat
this case as falling in ‘rarest of rare’ category. Putting it differently,
when the appellant is not shown to be a person having criminal antecedents
and is not a hardened criminal, it cannot be said that there is no probability
of him being reformed and rehabilitated. His unblemished jail conduct
and having a family of wife, children and aged father would also indicate
towards the probability of his reformation.
43.2. Having said so, we may observe that so far as the other
arguments on behalf of the appellant, with reference to the theory of
‘residual doubt’, are concerned, in the later 3-Judge Bench decision of
this Court in Shatrughna Baban Meshram (supra), it was observed
that the said theory, developed as a result of peculiarity in the process
adopted in U.S. jurisdictions, has not found favour even by the U.S.
Supreme Court. We need not dilate on this aspect any further in the
present case for the simple reason that the strong mitigating factor of
probability of reformation and rehabilitation, particularly with reference
to the antecedents and background of the appellant coupled with his
satisfactory jail conduct, make out a case for communing death sentence
into that of imprisonment
for life.
44. However, and even when the present case is taken to be not
falling in the category of ‘rarest of rare’ so as to require termination of
the life of the appellant yet, the impact of the offences in question on the
conscience of the society as a whole cannot be ignored. Thus, it appears
just and proper to apply the course adopted in various cases involving
the crimes of similar nature where, even while commuting capital
punishment, this Court has provided for life imprisonment without
application of the provisions of premature release/remission before
mandatory actual imprisonment for a substantial length of time.
45. The appellant was about 33-34 years of age at the time of
commission of crime in the year 2015. Looking to the overall facts and
circumstances, in our view, it would be just and proper to award the
punishment of imprisonment for life to the appellant for the offence under
Section 302 IPC while providing for actual imprisonment for a minimum
period of 30 years. Having regard to the circumstances of this case and
other punishments awarded to the appellant, it is also just and proper to
provide that all the substantive sentences shall run concurrently.
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Conclusion
46. Accordingly, these appeals are partly allowed in the following
manner: -
(i) The conviction of the appellant of offences under Sections
376, 302, 201 IPC and Section 5/6 POCSO is upheld and the sentences
awarded to him are confirmed except the death sentence for the offence
under Section 302 IPC.
(ii) The death sentence awarded to the appellant for the offence
under Section 302 IPC is commuted into that of imprisonment for life,
with the stipulation that the appellant shall not be entitled to premature
release or remission before undergoing actual imprisonment for a period
of 30 (thirty) years.
(iii) The other terms of sentences awarded to the appellant,
including the amount of fine and default stipulations, are also confirmed.
The direction for payment of half of the amount of fine to the mother of
the deceased girl is also confirmed.
(iv) All the substantive sentences awarded to the appellant shall
run concurrently.
47. These appeals and the pending applications stand disposed of
accordingly.
Devika Gujral
Appeals partly allowed.
PAPPU v. THE STATE OF UTTAR PRADESH
[DINESH MAHESHWARI, J.]