Supreme Court of India
AMRUTLAL SOMESHWAR JOSHIversusSTATE OF MAHARASHTRA
- Citation
- 1994 INSC 346
- Decided
- 1 September 1994
- Disposal
- Dismissed
- Bench
- M M PUNCHHI
Holding
There is no inflexible rule that a person under 18 cannot be sentenced to death; the accused was over 20 years old at the time of the offence, so the death sentence stands.
Summary
Amrutlal Someshwar Joshi was convicted of murdering three persons, including a three‑year‑old child, during a robbery and was sentenced to death under IPC 302. He appealed, arguing that he was only 17 years old at the time of the offence and that age should be a mitigating factor, citing Hamam and Raisul as precedents. The trial court, high court and Supreme Court examined his varying statements about his age and relied on a school‑leaving certificate showing a birth date of 1 May 1967, establishing that he was over 20 when the crime occurred. The Court held that there is no inflexible rule barring the death penalty for offenders aged 17‑18 and that the certificate, whose authenticity was unchallenged, was the proper evidence of age. Consequently, the Court found the crime fell within the "rarest of rare" category and dismissed the review petition, upholding the death sentence.
Issues considered
- Whether an accused who was 17 or 18 years old at the time of committing murder is entitled to a mandatory mitigation from death penalty.
- Whether the school‑leaving certificate is admissible and conclusive evidence of the accused's age.
- Whether the death sentence should be reduced to life imprisonment on the ground of the accused's age.
Legislation cited
Subjects
death penaltymitigating factorage of accusedrarest of rareIPC 302sentencingreview petitioncriminal law
Judgment
AMRUTLAL SOMESHWAR JOSHI A
v.
STATE OF MAHARASHTRA
SEPTEMBER 1, 1994
B
[M.M. PUNCHHI AND K. JAYACHANDRA REDDY, JJ.]
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 tri~l
judge held that the accused was not of 17 years of age. Before the High H
23
24 ·SUPREME COURT REPORTS [1994] SUPP. 3 S.C.R.
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 imprison-
ment 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. Conse-
quently 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;
F 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.
G
In
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 per-
sons 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
26 SUPREME COURT REPORTS [1994] SUPP. 3 S.C.R.
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
B 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
c 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 cir-
cumstances and age of the accused was mentioned to be one such mitigat-
ing 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 ob-
viously 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 ques-
tions may be asked and answered:
B
(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 offender? ·
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 circumstan-
ces, however aggravating they may be. H
28 SUPREME COURT REPORTS [1994) SUPP. 3 S.C.R.
A 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
B
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
certificate. The learned Trial Judge after elaborate discussion on the
F 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 Superin-
tendent, 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 different-
B
ly 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 c
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, how-
ever, 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. F
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.
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