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2016 DIGILAW 436 (ALL)

SANTOSH RAI v. STATE OF U. P.

2016-02-04

ARVIND KUMAR MISHRA I, ARVIND KUMAR TRIPATHI

body2016
JUDGMENT Hon’ble Arvind Kumar Tripathi, J.—The instant appeals have been preferred challenging the judgement and order of conviction dated 5.6.1999 passed by Additional Sessions Judge-VII, Azamgarh in Session Trial No. 322 of 1998 arising out of Case Crime No. 44 of 1998, under Sections 302, 201, 316 I.P.C., P.S. Jahanaganj, District Azamgarh, convicting and sentencing the accused-appellants under Section 302 read with Section 34 I.P.C. for life imprisonment and penalty, a sum of Rs. 10,000/- each, in default one year rigorous imprisonment, under Section 376 I.P.C. 10 year rigorous imprisonment and fine for a some of Rs. 5,000/- each in default, six months rigorous imprisonment and under Section 201 I.P.C., they were acquitted and further directed to run the sentences concurrently. 2. All the above noted Criminal Appeal Nos. 1475 of 1999 on behalf of appellants Santosh Rai and Ganesh Rai, 1514 of 1999 on behalf of appellant Kamla Kant Rai @ Babloo Rai, Criminal Appeal Defective No. 125 of 1999 on behalf of Santosh Tiwari and Government Appeal Defective No. 130 of 1999 have been preferred against same judgement and order passed in Session Trial No. 322 of 1998, hence all appeal were heard and the same are being decided jointly by common order. 3. Mr. Anoop Trivedi, learned Advocate appeared on behalf of appellant Kamla Kant Rai @ Babloo Rai; Mr. Kamal Krishna, Senior Advocate assisted by Mr. Hemant Kumar Singh, learned Advocate appeared and argued on behalf of appellant Ganesh Rai; Mr. Manendra Narayana Pathak, learned Advocate appeared on behalf of appellant Santosh Tiwari. As far as appellant Santosh Rai is concerned, he was reported to be dead, hence, appeal in respect of appellant Santosh Rai stands abated. 4. The appeal was heard on 2/3/4/10/11.12.2015 thereafter on 5.1.2016 and on 6.1.2016 the judgement was reserved. 5. Prosecution case in brief is that First Information Report was lodged and registered as Case Crime No. 44 of 1998, under Sections 302/201/316 I.P.C., P.S. Jahanaganj, District Azamgarh on 9.3.1998 at 08:05 a.m. on written complaint lodged by informant Ram Palat Rai. As per F.I.R. on 8.3.1998 at about 06:00 p.m. one Shivasna D/o Suresh Rai (neighbour) came and called Reena Rai and taken to her house. As per F.I.R. on 8.3.1998 at about 06:00 p.m. one Shivasna D/o Suresh Rai (neighbour) came and called Reena Rai and taken to her house. After sometime for preparation of meals, family members started searching her and when went to ask at the house of Mangla Rai then it was informed by Mangla Rai S/o Dal Sigar Rai that immediately she returned. Thereafter informant with family members started searching her nearby place and also enquired at the house of neighbour but she was not traceable. Informant (PW1) alongwith Girish Chandra S/o Jag Jeevan (PW2), Shyamker Rai S/o Seeta Ram Rai, Prashant S/o Mundrika, Ramvriksh S/o Lurkhur, Ram Janam S/o Shri Nath, Prabhu Nath S/o Sant Rai and other villagers started searching and went at the tubewell of Mangla Rai and came alongwith Mangla Rai at his house. It was found that Kamla Kant Rai @ Babloo Rai S/o Kamlesh Rai, grandson of Mangla Rai and his three friends/relative who were staying there at his house were also not present, hence, due to this reason there was some apprehension in the mind regarding untoward incident. Thereafter they started searching at Pokhari and Jungle bush. When they went outside the village besides semarhiya pond and flashed torch in the bush they saw those four persons carrying the dead-body and after seeing them they threw the dead-body, then raising voice they were chased, the other villagers also reached on the spot. Kamla Kant Rai @ Babloo Rai S/o Kamlesh Rai was caught hold and his three relative/friends were also caught hold by the villagers. Villagers were angry hence, they were beaten. Babloo was also beaten to disclose the name of three relatives and friends. When he was beaten then subsequently he disclosed the names of his three relatives/friends namely, (1) Santosh Tiwari S/o Ram Surat Tiwari, R/o Mamarkhapur, P.S. Sidhari, District Azamgarh, (2) Santosh Rai S/o Uday Narayana Rai, R/o Sakinan Feti, P.S. Bardah, District Azamgarh and (3) Ganesh Rai S/o Ramanand Rai, R/o Sakinan Feti, P.S. Bardah, District Azamgarh. Due to that incident terror was created in the village. The girls of the village were under fear to come out of their house and aged women were saying how bad was the time and it was very difficult to save the daughter-in-laws and daughters. Due to that incident terror was created in the village. The girls of the village were under fear to come out of their house and aged women were saying how bad was the time and it was very difficult to save the daughter-in-laws and daughters. Further there was suspicion that rape was also committed with the daughter of informant and the request was made to lodge the F.I.R. The First Information Report is Exhibit Ka.17. F.I.R. was lodged against all four accused-appellants. 6. After the accused were handed over to the police, torch was also shown to the police, recovery memo was prepared and thereafter the same was handed over in custody of witnesses with the instruction to produce before the Court concerned if and when required. The sample of earth and husk were also taken by the Investigating Officer. The chappal of the deceased was also taken into custody on 9.3.1998. Subsequently, Section 376 I.P.C. was also added. According to the public analysis report, the human blood was found on salvar, sameej and chaddi of the deceased. Post-mortem examination of the body of Reena Rai was conducted on 9.3.1998 at 02:25 p.m. which was carried and handed over by the Constable Hari Singh and Constable Parmeshwar Yadav. According to post-mortem report cause of death is asphyxia due to strangulation; sign of rape was also found; blood clot was present over vaginal orifice. 7. All the accused-appellants were also medically examined on 9.3.1998 by the doctor at Primary Health Centre, Jahanaganj, District Azamgarh and injuries were found on their persons. Site plan was prepared by the Investigating Officer on 9.3.1998; panchnama was prepared. After completing investigation and the formalities, charge-sheet was submitted by the Investigating Officer. The charge was framed on 9.9.1998 under Sections 376 read with Section 34, 302 read with Section 34 I.P.C. and under Section 201 read with Section 34 I.P.C. against all the four accused-appellants. The appellants denied the charges and pleaded to the trial. 8. After completing investigation and the formalities, charge-sheet was submitted by the Investigating Officer. The charge was framed on 9.9.1998 under Sections 376 read with Section 34, 302 read with Section 34 I.P.C. and under Section 201 read with Section 34 I.P.C. against all the four accused-appellants. The appellants denied the charges and pleaded to the trial. 8. The prosecution to prove its case examined as many as eight witnesses Ram Palat Rai (father of the deceased Reena Rai) was examined as PW1, Girish Chandra witness of fact was examined as PW2, Surendra Nath Rai also witness of fact was examined as PW3, S.I. Hari Charan Prasad who prepared panchayat nama of the dead-body of deceased Reena Rai was examined as PW2, S.I. R.N. Singh Station Officer, Kopaganj, District Mau who was investigating officer was examined as PW5, Dr. L.J. Yadav who conducted post-mortem of the dead-body of the deceased Reena Rai was examined as PW6, Constable Mahendra Yadav was examined as PW7 who prepared chik F.I.R. and made G.D. Entry of 9.3.1998 and proved the same, Pharmacist Rakesh Kumar to prove the injury report was examined as PW8. All the appellants Santosh Tiwari, Kamla Kant Rai @ Babloo Rai, Santosh Rai and Ganesh Rai who were examined by Dr. Ashok Kumar was examined as CW1 who examined the injury of accused-appellants. After evidence of the prosecution was closed the statement of accused-appellants were recorded under Section 313 Cr.P.C. who denied the allegation but no evidence is adduced in defence. after hearing counsel for the parties, the appellants were held guilty of committing offence under Section 302 read with Section 34 I.P.C. and Section 376 I.P.C., their counsel were heard on point of sentence, thereafter they were sentenced to life imprisonment under Section 302 read with Section 34 I.P.C. with a fine for a sum of Rs. 10,000/- each, falling to undergo one year rigorous imprisonment, under Section 376 I.P.C. sentenced to ten years rigorous imprisonment with fine of sum of Rs. 5,000/- each and falling to deposit the fine to serve a further period of six months additional rigorous imprisonment with direction that both sentences should run concurrently. However, all the appellants were acquitted under Section 201 I.P.C. 9. 5,000/- each and falling to deposit the fine to serve a further period of six months additional rigorous imprisonment with direction that both sentences should run concurrently. However, all the appellants were acquitted under Section 201 I.P.C. 9. Learned counsel for the appellants challenged the impugned judgement of conviction and sentence on the ground that language of First Information Report shows that it was written on behest of police and not by Ram Palat Rai informant himself. The alleged confession regarding commission of offence has not been mentioned in the F.I.R. The scribe of the F.I.R., Kamlesh Rai was not examined and even his name has not been shown in the written report. The all four accused-appellants were shown to have been arrested with dead-body, however, according to prosecution case itself that except appellant Kamla Kant Rai @ Babloo Rai, all other three accused-appellants were not known but in the F.I.R. not only their names have been mentioned but even parentage have also been shown. The instant incident alleged to have taken place in the intervening night of 8/9.3.1998 and F.I.R. was lodged at Police Station Jahanaganj on 9.3.1998 at 08:05 a.m. There is no evidence of last seen except the fact that dead-body was seen when all the accused-appellants were carrying the same to dispose off (the same). It is a case of circumstantial evidence so there is no direct evidence of murder and rape and even there is no evidence of last scene. Even there is no evidence that deceased reached at the house of appellant Kamla Kant Rai but merely there is hearsay evidence that deceased Reena Rai D/o of informant Ram Palat Rai was called by Shivasna D/o Suresh Rai but neither ladies of the house including Shivasna nor any person were examined who have seen Reena Rai at the house of appellant Kamla Kant Rai @ Babloo Rai. It was also submitted that the name of Surendra Rai does not figure in the F.I.R. in the list of witnesses, even his alleged statement was recorded after 17 days of the incident by investigating officer, the victim Reena Rai disappeared in the evening of 8.3.1998 from about 06:30 p.m. but the F.I.R. was lodged on next date of morning i.e. on 9.3.1998 at 08:05 a.m. though the distance of the police station was only 5 km. from place of incident Village Mittupur, Jahanaganj. from place of incident Village Mittupur, Jahanaganj. Mangla Rai had three sons namely Kamlesh Rai, Suresh Rai and Brijesh Rai, appellant Kamla Kant Rai @ Babloo Rai is son of Kamlesh Rai and Shivasna who alleged to have called deceased Reena Rai, is the daughter of Suresh Rai. The case is of circumstantial evidence. In fact the dead-body was not seen in the possession of the appellants but they were arrested from other of places, the appellant Kamla Kant Rai @ Babloo Rai was arrested from his house. Subsequently they were seriously beaten, which is clear from injury reports and it was alleged that they confessed their guilt and appellant Kamla Kant Rai @ Babloo Rai disclose the name of his friends/companions accused-appellants Santosh Tiwari, Santosh Rai and Ganesh Rai. It was also contended that the F.I.R. which was alleged to have been lodged after apprehending the appellants but in the F.I.R. the alleged confession regarding rape was also not mentioned. The injuries of accused-appellants were examined by the doctor, however, there is no medical examination report of their private parts which would have been material evidence to prove their guilt or their innocence. Subsequently there is improvement in the statements to the effect that there was confession with regard to the rape and murder. In fact they were implicated on the basis of suspicion. In the F.I.R. it has not been mentioned at what time the informant and the alleged witnesses saw the appellants with dead-body, even in the statements there is a contradiction and improvement whether they saw at about 02:30 p.m. in the night or in the morning because on the statement it was also stated that they saw and apprehended the appellants in the early morning with dead-body. 10. Learned counsel for the appellants also submitted that instead of communicating to the police, informant himself started conducting enquiry and investigation and on the basis of alleged pointing out of the accused-appellants they inspected the place of occurrence in the room where husk of Kamla Kant Rai (BHUSA) was dupe kept. There was no door to close the room, hence, any person could have visited that place to search if there was suspicion. There was no door to close the room, hence, any person could have visited that place to search if there was suspicion. When informant and other witnesses came to know that even appellants were not present at the house and they were missing but no one tried to search at the places belonging to family of one of the accused-appellant Kamla Kant Rai. There is no evidence except the alleged confessional statements of the accused-appellants when they were apprehended and beaten. With regard to the commission of offence, whether the all four accused-appellants committed rape or murder or any one of them or nobody committed offence and only they were trying to dispose of the dead-body. 11. It was further contended by learned counsel for the appellants that though the prosecution evidence is not reliable however, even if it is believed then no offence is made out except under Section 201 I.P.C., as the dead-body was seen in the possession of accused-appellants. It was contended that the appellants were released on bail and they are on bail. It was also contended that according to the prosecution case deceased girl was missing after 06:30 p.m. and dead-body was seen in possession of the appellants at about 04:30 a.m. It was unnatural that the appellants were either roaming with the dead-body or keeping the same for a such long time and they also took the dead-body through the path way from where other villagers were passing and they were searching the deceased and appellants. Hence, it is clear that purposely Km. Shivasna D/o of Suresh Rai and other family members or witnesses who saw the deceased visiting house of one of the appellant were not examined, hence, best witnesses of circumstantial evidence were withheld. It was also contended that it is a case of circumstantial evidence and chain of link to show the involvement of the appellants for rape and murder was not complete. Hence, the prosecution failed to prove the case beyond reasonable doubt and the appellants are entitled to be acquitted. 12. Learned counsel for the appellants relied the judgement of the Hon’ble Apex Court in Hanumant v. State of Madhya Pradesh, AIR 1952 SC 343 ; Sharad Birdhichand Sard v. State of Maharashtra, AIR (SC)-1984-0-1622 Para 67 and 68 and Shankarala Gyarilal Dixit v. State of Maharashtra. 12. Learned counsel for the appellants relied the judgement of the Hon’ble Apex Court in Hanumant v. State of Madhya Pradesh, AIR 1952 SC 343 ; Sharad Birdhichand Sard v. State of Maharashtra, AIR (SC)-1984-0-1622 Para 67 and 68 and Shankarala Gyarilal Dixit v. State of Maharashtra. It was again submitted that alternative argument would be that offence would not travel beyond Section 201 I.P.C. and during trial all appellants, almost remain for more than four years in judicial custody before they were released on bail. Hence, even if any case is made out against them they are entitled for concession by convicting under Section 201 I.P.C. for a period already gone. If the defence could not prove regarding the presence of the appellants somewhere else and the fact how they get the dead-body then merely on that ground, the prosecution cannot be discharged with the liabilities to establish the case beyond doubt. 13. Learned counsel for the appellants further contended that it appears that it was a case of honour killing and subsequently appellants were caught hold and implicated in the present case with false allegation that they were seen while carrying the dead-body. 14. Learned A.G.A. vehemently raised the objection against the argument advanced on behalf of the appellants. He submitted that though there is no last scene evidence in company of the appellants but prosecution proved the case beyond doubt that deceased Reena Rai was called by Shivasna D/o Suresh Rai (cousin of the Kamla Kant Rai), she went his house alongwith Shivasna subsequently when enquiry was made as she was required to prepare meals then the information was given that she had already returned and went to her house. Thereafter informant and other family members started searching her but she was not traceable and even appellant Kamla Kant Rai and their friends who were staying at the house of Kamla Kant Rai were also missing. Subsequently they were seen and apprehended by the informant and other villagers. When they saw them while carrying the dead-body and after seeing the witnesses they threw the dead-body and tried to run away but they chased and caught hold them. After they were beaten Kamla Kant Rai disclosed the name of other three companions/accused-appellants out of which one of the appellant Santosh Rai is died in respect of him appeal stand abated. 15. After they were beaten Kamla Kant Rai disclosed the name of other three companions/accused-appellants out of which one of the appellant Santosh Rai is died in respect of him appeal stand abated. 15. We considered the submissions of learned counsel for the parties and perused the record. When Shivasna came and called deceased Reena Rai informant was present at his house so he has proved this fact before the trial Court that deceased Reena Rai was called by Shivasna, she went alongwith her to the house of one of the appellant Kamla Kant Rai. Shivasna is cousin of Kamla Kant Rai when Reena Rai did not return to her house and ladies searched her for preparation of the meal then quarry was made, then it was informed by the family members of appellant Kamla Kant Rai that she had already returned to her house. Subsequently, it was also found and informed by her family members that Kamla Kant Rai and his friends had also gone somewhere else so it is clear in view of the evidence that deceased Reena Rai went to the house of appellant Kamla Kant Rai and he and his three friends were not present at the house of appellant Kamla Kant Rai. There is no explanation and evidence to show that they were not present in the village. If they were not present in the house then where they had gone after 06:00 p.m. on the date of incident, there is no explanation. There was no enmity in between the informant and Kamla Kant Rai i.e. why when she was called, she was allowed to go alongwith Shivasna D/o Suresh Rai. 16. Had it been a case of honour killing and appellants were implicated in the present case then the F.I.R. might have been lodged by the family members naming the informant and other family members. PW1 Ram Palat Rai (father of the deceased), PW2 Girish Chandra, PW3 Surendra Nath Rai have proved that they were searching deceased Reena Rai D/o informant and during that period they saw that appellants were carrying the dead-body and after seeing the villagers they threw the dead-body and thereafter they were chased and caught hold. It was also proved by witnesses when enquiry was made at the house of Mangla Rai (grandfather of appellant Kamla Kant Rai). It was also proved by witnesses when enquiry was made at the house of Mangla Rai (grandfather of appellant Kamla Kant Rai). It was informed by the family members that Reena Rai had already gone to her house. This clearly shows that she was called and visited the house of appellant Kamla Kant Rai and initially they were searching Reena Rai hence in the night they could not inform to the police and by the time information could be given to the police on next date in the morning, while searching they found the appellants with dead-body. Considering the relationship in between two families of informant and Mangla Rai there was no reason of false implication. As far as examination of scribe Kamlesh Rai (not grandfather of the appellant Kamla Kant Rai but different person) is concerned that will not effect the prosecution case, as by examining the informant and the constable who prepared chick report, the filing of the F.I.R. is proved. 17. It is a case of circumstantial evidence. According to prosecution case, which was proved by the witnesses, the appellants as well as deceased Reena Rai were missing after 06:30 p.m., on 8.3.1998 and they were apprehended while they tried to run away after throwing the dead-body of Reena Rai which they were carrying. It is natural conduct of the informant and villagers that after seeing the dead-body of Reena Rai they beaten them, thereafter they confessed their guilt of committing rape and murder and they have also shown the place of occurrence. Though at the place of occurrence subsequently no blood was found as according to informant some drop of blood were seen on husk (BHUSA) when he reached there on pointing out of accused-appellants. After getting information regarding recovery of the dead-body the villagers collected there and the appellants were beaten. Had they been taken out from house of Kamlesh Rai then atleast objection should have been raised by the villagers or atleast by appellants and Kamla Kant Rai and his family members, for false implication and beating them as they were badly beaten. After getting information regarding recovery of the dead-body the villagers collected there and the appellants were beaten. Had they been taken out from house of Kamlesh Rai then atleast objection should have been raised by the villagers or atleast by appellants and Kamla Kant Rai and his family members, for false implication and beating them as they were badly beaten. However, neither any objection was raised by any of the family members nor any complaint was made to the police or higher authority nor any complaint was made before the Court nor any evidence was produced to show that the appellants were not present at the place of incident rather they were present at their house or some where else. All were present in the house of one of the appellant Kamla Kant Rai on the fateful day of incident. Hence, these circumstances show that victim and appellants were missing after 06:30 p.m. nobody has seen them in between 06:30 p.m. and the time when the appellants were apprehended in the early morning after seeing them with the dead-body. These facts and circumstances clearly shows that neither there was any reason why the informant and his family and villagers falsely implicated the appellant Kamla Kant Rai and other appellants, who were friends of Kamla Kant Rai. When the witnesses saw them with dead-body, they were beaten but no objection was raised by any villagers or family members and no complaint was made at any stage. There is no reason to disbelieve the statement of PW1, 2 and 3, there was no such animosity with the appellants. 18. As far as medical examination and medical examination of private part of the appellants are concerned, according to the medical report and statement of Doctor, blood clot was present over vaginal orifice and public hairs. Ante-mortem injuries noted on the body are as follows; 1. Contusion 7cm x 3cm on left side neck, 2cm below the left mandible and 7cm above the middle of left clavicle on cut, Ecehymosis present in the neck muscle and subcutaneous tissues. On opening, the trachea, it is congested and blood clots present. 2. Abrasion of ½cm x 0.3cm over left tragus external surface. 3. Linear abrasion of 1cm x 0.2cm backside left, the left iliae spine 6cm above and 6cm lateral to vertical spine. 4. On opening, the trachea, it is congested and blood clots present. 2. Abrasion of ½cm x 0.3cm over left tragus external surface. 3. Linear abrasion of 1cm x 0.2cm backside left, the left iliae spine 6cm above and 6cm lateral to vertical spine. 4. Linear abrasion 11cm x 2cm left buttock swelling lebia and contusion abrasion in mazora, hymen found torn and bruised cause of death was asphyxia due to strangulation. 19. According to CW1 Dr. Ashok Kumar, he has examined private parts of the accused-appellants while examining the external injuries but he has not written regarding the same in the report. Hence, either it was carelessness of the doctor or purposely the same was not noted. Hence, due to mistake of the Doctor or Investigating Officer the witnesses who are reliable, and trust worthy cannot be disbelieved. When witnesses were searching the deceased Reena Rai they saw the appellants while carrying the dead-body however, seeing the witnesses they threw the body and tried to run away. It is clear in the present case that when appellants were seen by the witnesses while they were carrying the dead-body of Reena Rai but they failed to prove or inform from where they get the dead-body if they had not committed rape and murder. 20. The conduct of the doctor is also doubtful it appears that just to favour the accused-appellants, he did not mention the result of medical examination of private parts because when he get information from Court to appear as witness then instead of directly coming to the Court firstly he went to the counsel of the accused-appellants and thereafter, he was sent to the Court for recording his statement. The person who met him was Rajiv Rai brother of accused-appellant Ganesh Rai. Instead of directly going to the Court or visiting office of Government Advocate he went to the seat of counsel for the appellants alongwith brother of accused-appellant Ganesh Rai. 21. In view of the aforesaid facts and circumstances, missing of the deceased Reena Rai and appellants, the appellants were seen while carrying the dead-body of Reena Rai, they confessed their guilt, shown the place of occurrence hence there was no reason to disbelieve the witnesses and since the appellants failed to disclose this fact which was exclusively in their knowledge that from where get the dead-body, slightly they were held guilty. Hence, contention of learned counsel for the appellants cannot be accepted that if even prosecution case is proved they would be guilty and liable to be punished only under Section 201 I.P.C. 22. In case of Shankarala Gyarasilal Dixit (Supra) there was no evidence that the appellants were present in the house at the time when dead-body of Reena Rai was discovered, hence, the Hon’ble Supreme Court held that it was impossible to hold that the appellants plea was false showing total ignorance of the incident. It was also held that the falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstances, if other circumstances point unfailingly to the guilt of the accused. So in view of the fact of that case, decision of above noted case is not applicable in the present case, rather the observation is in favour of the prosecution. Hence, when appellants failed to disclose this fact from where and how they get the dead-body it will be the additional ground to corroborate the evidence adduced by the prosecution and as such in view of the facts, the circumstances clearly shows that they were involved in the crime of rape and murder of deceased Reena Rai. 23. In the present case the same principle of last seen evidence is applicable, as in case of last seen evidence soon before the incident if not explained properly shows involvement of the offender in the crime. In the present case deceased was not seen in company of appellants before the rape and murder but it is well established on the evidence adduced by the prosecution that deceased visited at the house of one of the appellant Kamla Kant Rai @ Babloo Rai and other appellants visited his house but after 06:00 p.m. on fateful day, the deceased, appellant and all four appellants were found missing and subsequently appellants were seen with the dead-body of Km. Reena Rai and after seen the dead-body, they threw and tried to escape the place but chase and apprehended by the witnesses. Reena Rai and after seen the dead-body, they threw and tried to escape the place but chase and apprehended by the witnesses. There is no evidence to show that they were present in their house or all of the them were present in the house of appellant Kamla Kant Rai @ Babloo Rai or at some other place and the evidence and circumstances in the present case clearly shows that the prosecution succeeded to prove the case beyond reasonable doubt and there was no reason of false implication. 24. In case of Sevaka Perumal and another v. State of Tamil Nadu, (1991) 3 SCC 471 . The Hon’ble Supreme Court while considering the matter of awarding proper sentence as consumed the Court as under; “Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society cannot long endure under serious threats. If the Courts do not protect the injured, the injured would then resort to private vengeance. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed etc.” 25. According to the judgement of Hon’ble Apex Court in case of Gopal Singh v. State of Uttarakhand, (2013) 7 SCC 545 , it was held by Apex Court; “Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence.” 26. In the present case, apart from the confession of guilt by the accused-appellants, there is no direct evidence whether all the accused-appellants committed rape and murder or any of one or two committed rape and thereafter all or any of them committed murder, but evidence and circumstances shows the common intention so they are liable to be punished, they have rightly been convicted under Section 302 read with Section 34 I.P.C. and further considering the facts and circumstances of the circumstantial evidence, the sentence for life imprisonment, the penalty would be sufficient met the end of justice. However, in view of the medical and evidence report it appears that the rape was committed by all the appellants and all were involved in committing murder. 27. In case of Bachan Singh v. State of Panjab (supra) it was held that considering the imposition of death penalty the standards and norms restricting the area of imposition of death penalty indicated by the Apex Court as aggravating and mitigating circumstances are quoted hereinbelow;- 202. Drawing upon the penal statutes of the States in U.S.A. framed after Furman v. Georgia, in general, and Clauses 2(a), (b), (c) and (d) of the Indian Penal Code (Amendment) Bill passed in 1978 by the Rajya Sabha, in particular, Dr. Chitale has suggested these “aggravating circumstances”: “Aggravating circumstances : A Court may, however, in the following cases impose the penalty of death in its discretion: (a) if the murder has been committed after previous planning and involves extreme brutality; or (b) if the murder involves exceptional depravity; or (c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed - (i) while such member or public servant was on duty; or (ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or (d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code. 203. Stated broadly, there can be no objection to the acceptance of these indicators but as we have indicated already, we would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other, 204. 203. Stated broadly, there can be no objection to the acceptance of these indicators but as we have indicated already, we would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other, 204. In Rajendra Prasad, the majority said: “It is constitutionally permissible to swing a criminal out of corporeal existence only if the security of State and society, public order and the interests of the general public compel that course as provided in Article 19(2) to (6).” Our objection is only to the word “only”. While it may be conceded that a murder which directly threatens, or has an extreme potentiality to harm or endanger the security of State and society, public order and the interests of the general public, may provide “special reasons” to justify the imposition of the extreme penalty on the person convicted of such a heinous murder, it is not possible to agree that imposition of death penalty on murderers who do not fall within this narrow category is constitutionally impermissible. We have discussed and held above that the impugned provisions in Section 302, Penal Code, being reasonable and in the general public interest, do not offend Article 19, or its ‘ethos’; nor do they in any manner violate Articles 21 and 14. All the reasons given by us for upholding the validity of Section 302, Penal Code, fully apply to the case of Section 354(3), Code of Criminal Procedure, also. The same criticism applies to the view taken in Bishnu Deo Shaw v. State of West Bengal, which follows the dictum in Rajendra Prasad. 205. In several countries which have retained death penalty, pre-planned murder for monetary gain, or by an assassin hired for monetary reward is, also, considered a capital offence of the first degree which, in the absence of any ameliorating circumstances, is punishable with death. Such rigid categorisation would dangerously overlap the domain of legislative policy. It may necessitate, as it were, a redefinition of ‘murder’ or its further classification. Then, in some decisions, murder by fire-arm, or an automatic projectile or bomb, or like weapon, the use of which creates a high simultaneous risk of death or injury to more than one person, has also been treated as an aggravated type of offence. No exhaustive enumeration of aggravating circumstances is possible. Then, in some decisions, murder by fire-arm, or an automatic projectile or bomb, or like weapon, the use of which creates a high simultaneous risk of death or injury to more than one person, has also been treated as an aggravated type of offence. No exhaustive enumeration of aggravating circumstances is possible. But this much can be said that in order to qualify for inclusion in the category of “aggravating circumstances” which may form the basis of ‘special reasons’ in Section 354(3), circumstance found on the facts of a particular case, must evidence aggravation of an abnormal or special degree. 206. Dr. Chitaley has suggested these mitigating factors: Mitigating circumstances : In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances: (1) That the offence was committed under the influence of extreme mental or emotional disturbance. (2) The age of the accused. If the accused is young or old, he shall not be sentenced to death. (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above. (5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence. (6) That the accused acted under the duress or domination of another person. (7) That the condition of the accused showed that he was mentally defective and that the said defect unpaired his capacity to appreciate the criminality of his conduct.” 28. Considering the judgment of the Constitutional Bench holding the constitutionality of the death penalty contained under Section 302 IPC was considered subsequently followed by the Apex Court in the case of Mofil Khan v. State of Jharkhand (supra), which is quoted hereinbelow : “This Court in the aforesaid decisions has evolved the doctrine of “rarest of the rare” case and put it to test via the medium of charting out the aggravating and mitigating circumstance in a case and then balancing the two in the facts and circumstances of the case. As a norm, the most significant aspect of sentencing policy is independent consideration of each case by the Court and extricating a sentence which is the most appropriate and proportional to the culpability of the accused. It may not be apposite for the Court to decide the quantum of sentence with reference to one of the classes under any one of the head while completely ignoring classes under other head. That is to say, what is required is not just the balancing of these circumstance by placing them in separate compartments, but their cumulative effect which the Court is required to keep in its mind so as to better administer the criminal justice system and provide an effective and meaningful reasoning by the Court as contemplated under Section 354 (3) Code while sentencing. The following broad heads have been culled out by the successive judgments of this Court. “Aggravating Circumstances: 1. The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions. 2. The offences was committed while the offender was engaged in the commission of another serious offence. 3. The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person. 4. The offence of murder was committed for ransom or like offences to receive money or monetary benefits. 5. Hired Killings. 6. The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim. 7. The offence was committed by a person while in lawful custody. 8. The murder or the offence was committed, to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another, for instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 Code of Criminal Procedure. 9. When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community. 10. 9. When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community. 10. When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person. 11. When murder is committed for a motive which evidences total depravity and meanness. 12. When there is a cold blooded murder without provocation. 13. The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society. Mitigating Circumstances: 1. The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course. 2. The age of the accused is a relevant consideration but not a determinative factor by itself. 3. The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated. 4. The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct. 5. The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence. 6. Where the Court upon proper appreciation of evidence is of the view that the crime was not committed in a pre-ordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime. 7. Where it is absolutely unsafe to rely upon the testimony of a sole eye-witness though prosecution has brought home the guilt of the accused. While determining the questions relatable to sentencing policy, the Court has to follow certain principles and those principles are the load star besides the above considerations in imposition or otherwise of the death sentence. Principles: 1. Where it is absolutely unsafe to rely upon the testimony of a sole eye-witness though prosecution has brought home the guilt of the accused. While determining the questions relatable to sentencing policy, the Court has to follow certain principles and those principles are the load star besides the above considerations in imposition or otherwise of the death sentence. Principles: 1. The Court has to apply the test to determine, if it was the ‘rarest of rare’ case for imposition of a death sentence. 2. In the opinion of the Court, imposition of any other punishment, i.e., life imprisonment would be completely inadequate and would not meet the ends of justice. 3. Life imprisonment is the rule and death sentence is an exception. 4. The opinion to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant circumstances. 5. The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime.” 19. We remind ourselves that the doctrine of “rarest of rare” does not classify murders into categories of heinous or less heinous. The difference between two is not in the identity of the principles, but lies in the realm of application thereof to individual fact situations. Sentences of severity are imposed to reflect the seriousness of the crime, to promote respect for the law, to provide just punishment for the offence, to afford adequate deterrent to criminal conduct and to protect the community from further similar conduct. It serves a three-fold purpose-punitive, deterrent and protective. 45. The crime test, criminal test and the “rarest of the rare” test are certain tests evolved by this Court. The tests basically examine whether the society adhors such crimes and whether such crimes shock the conscience of the society and attract intense and extreme indignation of the community. The cases exhibiting pre-meditation and meticulous execution of the plan to murder by leveling a calculated attack on the victim to annihilate him, have been held to be fit cases for imposing death penalty. The cases exhibiting pre-meditation and meticulous execution of the plan to murder by leveling a calculated attack on the victim to annihilate him, have been held to be fit cases for imposing death penalty. Where innocent minor children, unarmed persons, helpless women and old and infirm persons have been killed in a brutal manner by persons in dominating position, and where after ghastly murder displaying depraved mentality, the accused have shown no remorse, death penalty has been imposed. Where it is established that the accused is a hardened criminal and has committed murder in a diabolic manner and where it is felt that reformation and rehabilitation of such a person is impossible and if let free, he would be a menace to the society, this Court has not hesitated to confirm death sentence, many a time, in cases of brutal murder, exhibiting depravity and callousness, this Court has acknowledged the need to send a deterent message to those who may embark on such crimes in future. In some cases involving brutal murders, society’s cry for justice has been taken note of by this Court, amongst other relevant factors. While deciding whether death penalty should be awarded or not, this Court has in each case realizing the irreversible nature of the sentence, pondered over the issue many times over. This Court has always kept in mind the caution sounded by the Constitution Bench in Bachan Singh case (supra), that Judges should never be blood thirsty but wherever necessary in the interest of society identify the rarest of rare case and exercise the tougher option of death penalty. 29. In view of the aforesaid discussion, the Government Appeal on behalf of State to enhance the sentence from life imprisonment to death punishment is liable to be dismissed, accordingly all the above noted Criminal Appeal filed against the impugned judgement and order dated 5.6.1999 passed by Additional Sessions Judge-VII, Azamgarh in Session Trial No. 322 of 1998 arising out of Case Crime No. 44 of 1998, under Sections 302, 201, 316 I.P.C., P.S. Jahanaganj, District Azamgarh are hereby dismissed.