AMRUTLAL SOMESHWAR JOSHI A v.

STATE OF MAHARASHTRA

SEPTEMBER 1, 1994

[M.M. PUNCHHI AND K. JAYACHANDRA REDDY, JJ.] B

Indian Penal Code, 1860: Section 302.

Murder-Death Penalty-Award of-Age as mitigating factor-Held there is no inflexible rule that accused aged 17 or 18 should never be awarded C death sentence-Age of accused on date of occu"ence-Accused giving vague and differing statements as .to his age at various stages of case-Age as per school leaving certificate relied on by Trial Courl-{]pheld.

The petitioner, who killed three pe£"sons including a child aged about D three years in a brutal and diabolical manner with a view to committing robbery, was convicted by the Trial Court under section 302 of the Indian Penal Code and sentenced to death. The conviction and sentence was confirmed by the High Court. By its judgment dated 10.8.94, this Court also dismissed the petitioner's appeal and confirmed the judgments of the courts below awarding death sentence to him holding that his case fell E within the category of 'rarest of the rare case'. The petitioner filed a review petition in this court and relying upon the judgments of this court in Hamam v. State of U.P., (1976) 1 S.C.C. 163 and Raisul v. State of U.P.,

[1976) 4 S.C.C. 301 it was contended on his behalf that the age of the accused is one of the mitigating circumstances in awarding the death F sentence; since on the date of occurrence i.e. 4.8.87 he was only 17 years old, death sentence should not have been awarded to him. However, the age given by the accused and his advocate at various stages of the case differed. in a separate review petition sent from jail, the accused gave his age as 25 years; during his examination under section 313 Cr, P.C. on . 26.8.92 the accused gave his age to be about 22 years. On being examined G on the point of sentence after the conclustion of the trial the accused gave a vague statement of his age and placing reliance on a true copy of the school leaving certificate, the authenticity of which was not questioned, of the accused in which his date of birth was mentioned as 1.S.67, the tril judge held that the accused was not of 17 years of age. Before the High H 23

A Court, on question of sentence, the counsel for accused urged that the accused was a young man of 20 years. In appeal to this Court on 27.1.94, his age was given as 20 years.

Dismissing the petitions, this Court

B HELD : 1. There are no grounds to reduce the sentence to imprisonment for life on the grounds urged by the petitioner. [29-F]

2. There is no inflexible rule that a criminal aged about 17 or 18 years should never be sentenced to death irrespective of other circumstances, C however, aggravating they may be. [27-H]

3. The age given by the accused or by his advocates at various stages differently is of no consequence and cannot be given any weight. Consequently the statment of the accused regarding his age cannot be the criteria to conclude that he was below 18 years of age on the date of commission D. of the offence. The authenticity of the petitioner's school leaving certificate bas never been in doubt. The date of birth given in the said certificate is 1.5.67 and the petitioner was aged more than 20 years on the date of commission of the offence. Therefore, bis case does not come within the principle laid down in Hamam's case which bas been followed inRaisul's case. [29-B-F] E

Hamam v. State of U.P., [1976) 1 S.C.C. 163 and Raisul v. State of U.P., [1976) 4 S.C.C. 301, held inapplicable.

Bachan Singh v. State of Punjab etc. etc., [1980) 2 S.C.C. 20; Shankar @ Gaud Shankar and Ors. v. State of Tamil Nadu, JT (1994) 3 S.C. 54; Machhi Singh & Ors. v. State of Punjab, [1980) 3 S.C.C. 470 andAllauddin Mian and Ors. v. State of Bihar, A.1.R. (1989) S.C. 1456, referred to.

CRIMINAL APPELLATE JURISDICTION: Review Petition No. 999of1994.

Criminal Appeal No. 87 of 1994.

From the Judgment and Order dated 25/26.10.93 of the Bombay H High Court in Crl. A. No. 655/92 & Confirmation Case No. 3 of 1992. -

AS. JOSHI. v. STATE OF MAHARASHTRA [K.J. REDDY, J.] 25

R.K. Jain, K. V. Viswanathan and K.V. Venkataraman for the Ap- A pellant.

S.M. Jadhav and AS. Bhasme for the Respondent.

The Judgment of the Court was delivered by B K. JAYACHANDRA REDDY, J. Amrutal Someshwar Joshi, the petitioner in this review petition is the appellant in Criminal Appeal No. 87/94 which has been dismissed by us on 10.8.94. The appellant has been convicted by the trial court under section 302 l.P.C. and sentenced to death. The same has been confirmed by the High Court. We heard C Criminal Appeal No. 87/94 filed by him in this Court at length and ultimately dismissed the same holding that the appellant killed three persons including a child aged about three years in a brutal and diabolical manner with a view to commit robbery. We also held that the motive was henious and the crime committed was a cold-blooded, brutal and diabofa-al one and that his case fell within the category of 'rarest of rare rn~._ . .,'. D Accordingly we confirmed the judgments of the courts below awarding death sentence to the petitioner herein. Hence the present Review Petition has been filed seeking review of our judgment dated 10.8.94 in Criminal Appeal No. 87/94.

In the meanwhile a separate petition dated 22.8.94 to review the E judgment in Criminal Appeal No. 87/94 sent by the convicted accused from jail is received which is not separately numbered. In this review petition as well as the regular review petition filed through counsel, some points regarding appreciation of evidence by this.Court have been raised. We have examined these points and we see no merit in any of them. It may be F mentioned here that all the relevant evidence has been considered in detail and thereafter we reached the conclusion that the said items of evidence considered by us by themselves are sufficient to bring home the guilt to the accused and we accordingly confirmed the concurrent findings of the courts below. There is no need to consider each one of them again in these review petitions. We any incidentally mention here that in the petition sent G from jail the convicted accused has given his age as 25 years. He, however, has not raised may point regarding his age stating it should be taken as a mitigating circumstance. Learned counsel for the petitioner, however, mainly concentrated on the age of the convicted accused on the date of commission of the offence in support of his plea that the young age should H

A be treated as a mitigating circumstances in the matter of awarding death sentence.

Since this is a case of death sentence, we have heard the learned counsel for the petitioner as well as learned counsel for the State. Learned counsel for the petitioner submitted that the petitioner on the date of occurrence i.e. 4.8.87 was only 17 years old and therefore having regard to his age, death sentence ought not to have been awarded. ln support of this , submission strong reliance is placed on a judgment of this Court inHamam

v. State of U.P., [1976] 1 SCC 163 which was followed in Raisul v. State of U.P., [1976] 4 SCC 301. InHamam's case, Justice P.N. Bhagwati, as he then was, having held that the crime committed by the appellant was a most reprehensible and heinous disclosing brutality and callousness to human life, yet having noted that the appellant was of 16 years of age at the time of commission of crime, however, held that a murderer who is below 18 years of age at the time of commission of the offence should be considered D to be "too young" and that "he would be entitled to the clemency of penal justice and it would not be appropriate to impose the extreme penalty of death on him". In Raisul's case, Justice P.N. Bhagwati, who spoke for the Bench in a short judgment following the judgment in Hamam's case, again held that the appellant Raisul was below 18 years of age at the time of commission of the offence and therefore death sentence should not have E been imposed on him.

The learned counsel for the petitioner, in the instant case, submitted that the age of the accused is one of the mitigating circumstances and that . if. the accused is young he shall not be sentenced to death. In this context F the learned counsel also placed reliance on the judgments of this Court in Bachan Singh v. State of Punjab etc. etc., . [1980] 2 SCC 20 and Shankar @ Gauri Shankar and Others v. State of Tamil Nadu, JT (1994) 3 S.C. 54. It may be mentioned here that in Bachan Singh's case, a Constitution Bench of this Court mentioned some aggravating circumstances warranting the G imposition of death sentence and also mentioned some mitigating circumstances and age of the accused was mentioned to be one such mitigating circumstance. It was also observed by this Court that "There are numerous other circumstances justifying the passing of the lighter sentence as there are counterveiling circumstances of aggravation. We cannot obviously feed into a judicial computer all such situatio.ns, since they are H astrological imponderables in an imperfect and undulating society." In

. AS.JOSHl.v.STATEOFMAHARASHTRA(KJ.REDDY, J.) 27

Machhi Singh and others v. State of Punjab, (1980) 3 SCC 470, a Bench of A three Judges of this Court having noted the principles laid down in Bachan Singh's case observed thus:

"In order to apply these guidelines inter alia the following questions may be asked and answered:

(a) Is there something uncommQn about the crime which renders s-entence of imprisonment for life inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that there is no C alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the off ender? ·

If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into aci::ount D the answers to the questions posed hereinabove, the circwnst.ances of the case are such that death sentence is warranted, the court would proceed to do so."

In Allauddin Mian and others v. State of Bihar, AIR (1989) SC 1456 this E Court after referring to Bachan Singh's case observed thus :

"That is why this Court in Bachan Singh's case observed that when the question of choice of sentence is under consideration the Court must not only look to the crime and the victim but also the circumstances of the crimin~ and the impact of the crime on the F community".

Neither in Bachan Singh's case decided by a Constit~:tion Bench nor in Machhi Singh's case nor in Allauddin Mian's case, which are later in point of time, there is any reference to Hamam's case or Raisul's case nor there is any indication in those three later cases that a person aged about G 18 years of age OIJ. the date of commission of the offence should under no circumstances be sentenced to death. We are only referring to this aspect to show that there is no inflexible rule that a criminal aged about 17 or 18 years should never be sentenced to death irrespective of other circumstances, however aggravating they may be.

Learned counsel for the petitioner, however, submitted that the view taken in Hamam's case or Raisul's case certainly comes to the rescue of the petitioner who was aged only about 17 years at the time of commission of the offence. Assuming for argument sake that this Court in these two cases has laid down that the accused who is under 18 years of age should not be sentenced to death, still the important question to be considered in this case is whether the petitioner was aged only 17 years on the date of commission of the offence as is being claimed. The date of the occurrence in this case was 4.8.87. The accused-petitioner when examined under Section 313 Cr.P.C. on 26.8.92 gave his aged to be about 22 years. Relying on this, the learned Counsel submitted that the age of the petitioner on C 4.8.87 i.e. the date of commission of the offence, was only about 17 years and therefore death sentence should not have been imposed. The trial court after having convicted the petitioner under Sections 302 and 394 l.P.C. examined the accused on the next day on the point of sentence after explaining the sum and substance of the reasoning of its judgment. The D accused stated that justice has not been done to him and that considering his young age, the court should show him the sympathy. The learned trial Judge also heard the advocate for the accused on the point of sentence who stated that when the offence was committed, the accused was of 17 years of age. The public prosecutor contended that the accused was not 17 E years of age at the time of commission of offence placing reliance on a true copy of the school leaving certificate of the accused in which his date of birth was mentioned as 1.5.67. The learned trial Judge held that the accused was not of 17 years of age relying on the said certificate. It is very pertinent to note that nobody questioned the authenticity of the said

F certificate. The learned Trial Judge after elaborate discussion on the question of sentence and also on thl question of age ultimately held that this is a case where death sentence alone would meet the ends of justice.

Before the High Court, on question of sentence, the learned counsel for accused urged that the accused was a young man of about 20 years of age.

The High Court, however, having taken all the circumstances and findings G of the court below into consideration, by its judgment dated 26.10.93 dismissed the appeal and confirmed the death sentence. We are unable to understand as to how the petitioner who gave his age as 22 years on 26.8.92 when examined under Section 313 Cr. P.C. could be of 20 years of age in the year 1993 when the High Court heard the appeal. Likewise in the H special leave petition filed in this Court on 27.1.94 the age of the petitioner

.....

A.S. JOSHI. v. STAIB OF MAHARASIITRA [K.J. REDDY, J.) 29

is given as 20 years. Strangely in the review petition dated 22.8.94 sent by A the convicted accused from jail, which is also attested by the Jail Superintendent, he has given his age as 25 years. If one goes by this age, then he would have almost completed 18 years on the date of commission of the offence. We are only pointing out these aspects only to show that the age as such given by the accused or by his advocates at various stages differently is of no consequence and cannot be given any weight. Even before the High Court, the authenticity of the date of birth of the appellant as given in the school leaving certificate has not been questioned. Consequently the statement of the accused regarding his age cannot be the criteria to hold that he was below 18 years of age on the date of commission of the offence.

Learned counsel for the petitioner, however, submitted that the accused has not been questioned separately with refernece to the date of birth given in the school leaving certificate and therefore that cannot be acted upon. We see no force in this submission. It is only after the conclusion of the trial and after rendering the judgment, the accused as per the provisions

of Cr.P.C. was questioned in the matter of awarding of sentence. When D there was a vague statement regarding age, the prosecution produced the school leaving certificate and the same was placed on record and the authenticity of the same has never been in doubt. Learned counsel, however, further submitted that the accused can be medically examined at this stage. Under the above circumstances, we do not think that this exercise E has to be undertaken by this Court at this stage when the authenticity of the school leaving certificate has never been in doubt. The date of birth given in the said certificate is 1.5.67 and the petitioner was aged more than 20 years on the date of commission of the offence. Therefore the petitioner's case does not come within the priciple laid down in Harnam's case which has been followed in Raisul's case.

Having given our earnest consideration to the questions raised, we see absolutely no grounds to reduce the sentence to imprisonment for life on the grounds urged by the learned counsel. Accordingly the Review Petitions are dismissed .

T.N.A.

Petition dismissed.