Supreme Court of India
OMA @ OMPRAKASH AND ANR.versusSTATE OF TAMIL NADU
- Citation
- 2012 INSC 581
- Decided
- 11 December 2012
- Disposal
- Appeal(s) allowed
- Bench
- K S RADHAKRISHNAN
Holding
The Supreme Court acquitted A2, setting aside his conviction and life sentence because the prosecution did not prove his guilt beyond reasonable doubt.
Summary
The appellants were convicted under IPC sections 395, 396 and 397 for a burglary‑murder that occurred in 1995. Both were arrested ten years later; an identification parade was held only for A1, who later died, while no parade was conducted for A2. The trial court sentenced both to death under section 396, which the High Court later reduced to life imprisonment. The Supreme Court held that the prosecution failed to prove A2's guilt beyond reasonable doubt because the witnesses had never seen him before and no test identification parade was held, and the recovered iron rod could not be linked to the crime. Consequently, the conviction and sentence of A2 were set aside and he was ordered to be released. The Court also criticised the trial court’s improper reliance on non‑binding opinions and the improper application of the "rarest of rare" test for death penalty.
Issues considered
- The adequacy of identification evidence for A2, specifically the absence of a test identification parade.
- Whether the prosecution established a nexus between the recovered iron rod and the alleged murder.
- The applicability of the "rarest of rare" doctrine and the propriety of the death sentence awarded.
Legislation cited
- Code of Criminal Procedure, 1973s. 354(3)
- Indian Evidence Act, 1872s. 27, s. 9
- Indian Penal Code, 1860s. 395, s. 396, s. 397
Subjects
identification paradedeath penaltyrarest of rareIPC 395IPC 396IPC 397evidentiary standardsconvictionsentencingSupreme Courtcriminal law
Judgment
[2012] 13 S.C.R. 740
A OMA @ OMPRAKASH AND ANR.
v.
STATE OF TAMIL NADU
(Criminal Appeal No.143 of 2007)
DECEMBER 11, 2012
B
[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]
Penal Code, 1860 - ss. 395, 396 and 397 - Prosecution
under - Offences committed by the two appellants-accused
c with the nine absconding accused - Arrest of the appellants
(A 1 and A2) after 10 years in some other case - Conviction
by trial court and award of death sentence - High Court upheld
conviction, but altered the sentence to life imprisonment - The
appeal to this Court abated against A 1 due to his rJeath -
D Held: Prosecution failed to prove its case beyond reasonable
doubt so far as A2 is concerned - No Tl Parade was conducted
in respect of A2 and the witnesses could not properly identify
him in the court - The recovery of the weapon stated to be at
the instance of A2 cannot be connected to the crime - Hence
E his conviction and sentence not correct.
Sentence/Sentencing - Award of death sentence -
Propriety of - Held: Clear reasoning and analysis are the
basic requirements in a judicial decision - Criminal courts to
decide the cases, examining the relevant facts and evidence
F placed before them, applying binding precedents - Opinions
of Judges or academicians, predilection, fondness,
inclination, proclivity on any subject, however eminent they
are, shall not influence a decision making process - The
manner in which death sentence was awarded in the instant
G case, is in complete disregard of the tests laid down by
Supreme Court in awarding death sentence - The special
reasons which weighed with the trial court to award the death
sentence exposes the ignorance of the trial Judge of the
criminal jurisprudence of India - He needs fine tuning and
H 740
OMA @ OMPRAKASH AND ANR. v. STATE OF 741
TAMIL NADU
proper training - National Judicial Academy and State Judicial A
Academies should educate the judicial officers in this regard
so that they do not commit such serious e"ors in future -
Judgment.
The prosecution case was that the appellants and 8
nine other absconding accused entered the house of PW
2, armed with iron rods, with the intention of committing
burglary. In the process of burglary, they killed husband
of PW2, by strangulating him with a rope and also
assaulted PW2, PWS, PW6 and PW1 with iron rod. C
Appellants (A1 and A2) were apprehended after a period
of ten years, in connection with some other case and
nine other accused persons are still absconding. An
identification parade was conducted in respect of A1, but
not in respect of A-2. Pursuant to a disclosure made by
A-2, the iron rod used 1O years back, was recovered. The D
trial court found them guilty u/ss. 395, 396 and 397 IPC
and sentenced them to death for offences committed u/
s. 396 IPC. The High Court confirmed the conviction but
modified the sentence u/s. 396 IPC to that of life
imprisonment. During pendency of the appeal before this E
Court, A-1 died and the appeal against him abated.
Allowing the appeal, the Court
HELD:
F
Per K.S. Radhakrishnan:
1.1 The prosecution could not establish the guilt of
the second accused beyond reasonable doubt. The High
Court, therefore, committed a gross error in awarding life G
sentence to A2. The conviction and sentence awarded
to A-2 is set aside. [Paras 38 and 39) [764-E-F]
1.2 In the instant case, FIR was registered against
unknown persons. A2 was arrested after ten years in
H
742 SUPREME COURT REPORTS [2012] 13 S.C.R.
A connection with some other crime. PW1 and PW2 could
not have identified A2 in the court at that distance of time.
They were guided by the photographs repeatedly shown
by the police. Evidently, the witnesses did not know the
accused earlier, hence the accused could be identified
B only through a test identification parade which was not
done in this case, so far as A-2 is concerned. A-2 was not
named in the FIR, nor any identification parade was
conducted to identify him by the witnesses. It is rather
impossible to identify the accused person when he is
c produced for the first time in the court i.e. after ten years
since he was unknown to the witnesses. It is a glaring
defect which goes to the root of the case since none of
the witnesses had properly identified the accused. [Paras
30, 31 and 35] [761-F-H; 763-D-E]
D Mohd. Iqbal M. Shaikh v. State of Maharashtra (1998) 4
SCC 494: 1998 (2) SCR 734; Ravindra Alias Ravi Bansi
Gohar v. State of Maharashtra and Ors. (1998) 6 SCC 609:
1998 (3) SCR 978; Ravi alias Ravichandran v. State
represented by Inspector of Police (2007) 15 SCC 372: 2007
E (5) SCR 766 - relied on.
1.3 It is the case of prosecution that one rod was also
used for the murder of the deceased persons in this case,
but that rod was not recovered. One rod stated to have
F been recovered at the instance of A2 could not be
connected with the crime. PW 5 in his examination-in-chief
had stated that the accused had attacked him with a similar
rod that was being shown to him which would indicate
that the witness could not conclusively connect the rod
G which was used for committing the crime. Further, the
rod was recovered after a period of ten years of the
incident and it is highly doubtful, whether it was used for
the commission of the offence. Further, the prosecution
case is that a rope was used for the strangulation of the
H deceased, but the rope was not recovered. It is for the
OMA@ OMPRAKASH AND ANR. v. STATE OF 743
TAMIL NADU
prosecution to prove that the object recovered has nexus A
with the crime. In the instant case, the prosecution could
not prove that the rod recovered had any nexus with the
crime alleged to have been committed by A-2. [Paras 36,
37 and 38] [763-F-H; 764-A-E]
Dwarkadas Gehanmal v. State of Gujarat (1999) 1 SCC B
57; Mustkeem alias Sirajudeen v. State of Rajasthan (2011)
11 SCC 724: 2011 (9) SCR 101 • relied on.
2.1 The manner in which Sessions Court has
awarded death sentence in the instant case, is in C
complete disregard of the tests laid down by this Court
for determining the rarest of rare cases. The Sessions
Court had gone astray in referring to the views expressed
by the then Chief Justice of Madras High Court in a
lecture, which advice according to the Sessions Judge o
was taken note of by another Judge in delivering a
judgment in 'rowdy panchayat system'. The trial Judge
has not given the citation of that judgment nor has he
given any explanation, as to how that judgment is
applicable to the instant case. Thus the Court is not in a E
position to know how that judgment is relevant or
applicable in awarding death sentence. The casual
approach made by the Sessions Court in awarding the
death sentence is disturbing. The special reasons which
weighed with the Sessions Judge to award the death
F
sentence exposes the ignorance of the Judge of the
criminal jurisprudence of this country. The 'special
reasons' was only predilection or inclination of the trial
Judge to award death sentence, thus purely judge-
centric. He has not discussed the aggravating or
mitigating circumstances of this case, the approach was G
purely 'crime-centric'. The trial Judge while importing the
criminal jurisprudence of America or the Arab countries
lost sight of the fact that the Criminal Jurisprudence of
India or Indian society does not recognize those types
H
744 SUPREME COURT REPORTS (2012] 13 S.C.R.
A of barbaric sentences. The trial Judge has adopted a
very strange reasoning by saying that since the accused
persons had come from a far-away State, about 2000 km
to "our state" for committing robbery and murder, death
sentence would be imposed on them. He needs fine
B tuning and proper training. The trial Judge is also not
correct in opining that the imposition of death sentence
u/s. 396 IPC is the only weapon in the hands of judiciary
under the prevailing law to help to eliminate the crime.
Judiciary has neither any weapon in its hands nor uses
C it to eliminate crimes. Duty of the Judge is to decide
cases which come before him in accordance with the
Constitution and laws, following the settled judicial
precedents. A Judge is also part of the society where he
lives and also conscious of what is going on in the
society. Judge has no weapon or sword. Judge's
D greatest strength is the trust and confidence of the
people, whom he serves. [Paras 12, 13, 14, 15, 16, 17, 18
and 19] [753-H, 754-A-C; 756-G-H; 757-A-F; 758-0-F]
Bachan Singh v. State of Punjab (1980) 2 SCC 684;
E Machhi Singh and Ors. v. State of Punjab (1983) 3 SCC 470:
1983 (3) SCR 413; Jagmohan Singh v. State of U.P. (1973)
1 SCC 20: 1973 (2) SCR 541; Rona/ James v. State of
Maharashtra (1998) 3 SCC 625: 1998 (2) SCR 162;
Allauddin Mian v. State of Bihar (1989) 3 SCC 5: 1989 (2)
F SCR 498; Naresh Giri v. State of M.P. (2001) 9 SCC 615:
2001 (4) Suppl. SCR 298- relied on.
William Henry Furman v. State of Georgia 408 U.S. 238
(1972); Gregg v. Georgia 428 U.S. 153 (1976) - referred to.
G 2.2 Clear reasoning and analysis are the basic
requirements in a judicial decision. Judicial decision is
being perceived by the parties and by the society in
general as being the result of a correct application of the
legal rules, proper evaluation of facts based on settled
H
OMA@ OMPRAKASH AND ANR. v. STATE OF 745
TAMIL NADU
judicial precedents and judge shall not do anything which A
will undermine the faith of the people. [Para 19) [758-F-G]
2.3 Criminal Court while deciding criminal cases shall
not be guided or influenced by the views or opinions
expressed by Judges on a private platform. The views 8
or opinions expressed by the Judges, jurists,
academicians, law teachers may be food for thought.
Even the discussions or deliberations made on the State
Judicial Academies or National Judicial Academy, only
update or open new vistas of knowledge of judicial
officers. Criminal Courts have to decide the cases before C
them, examining the relevant facts and evidence placed
before them, applying binding precedents. Judges or
academicians opinions, predilection, fondness,
inclination, proclivity on any subject, however eminent
they are, shall not influence a decision making process, D
especially when judges are called upon to decide a
criminal case which rests only on the evidence adduced
by the prosecution as well as by the defence and guided .
by settled judicial precedents. National Judicial Academy
and State Judicial Academies should educate the judicial E
officers in this regard so that they will not commit such
serious errors in future. [Para 21) [759-B-E]
Per Dipak Misra: (Concurring):
F
1. This Court, on number of occasions, has dealt
with under what circumstances death penalty could be
imposed and what are the mitigating factors not to
impose such punishment. Article 141 of the Constitution
of India stipulates that the law declared by the Supreme
Court shall be binding on all Courts within the territory G
of India. The reasons ascribed by the trial Judge are
required to be tested on the bedrock of precedents in their
conceptual and perceptual eventuality. [Paras 2 and 15]
[765-B; 772-E]
H
746 SUPREME COURT REPORTS [2012] 13 S.C.R.
A Bachan Singh v. State of Punjab (1980) 2 SCC 684;
Jagmohan Singh v. State of U.P. (1973) 1 SCC 20: 1973 (2)
SCR 541; Gurbaksh Singh Sibbia v. State of Punjab (1980)
2 sec 565: 1980 (3) SCR 383- followed.
8
Machhi Singh and Others v. State of Punjab (1983) 3
SCC 470: 1983 (3) SCR 413; Lehna v. State of Haryana
(2002) 3 SCC 76: 2002 (1) SCR 377; Haresh Mohandas
Rajput v State of Maharshtra (2011) 12 SCC 56: 2011 (14)
SCR 921 ; Sham Alias Kishore Bhaskarrao Matkari v. State
C of Maharashtra (2011) 10 SCC 389: 2011 (11) SCR 744;
Mohammed Ajma/ Mohammad Amir Kasab alias Abu
Mujahid v. State of Maharashtra (2012) 9 SCC 1· relied on.
C. Muniappan v. State of T.N. (2010) 9 SCC 567: 2010
(10) SCR 262 Dara Singh v. Republic of India (2011) 2 SCC
D 490: 2011 (1) SCR 929; Surendra Kofi v. State of U.P. (2011)
4 SCC 80: 2011 (2) SCR 939; Mohd. Mannan v. State of
Bihar (2011) 5 SCC 509: 2011 (7) SCR 354; Sudam v. State
of Maharashtra (2011) 7 SCC 125: 2011 (6) SCR 1104 •
referred to.
E
2. In the instant case, the trial Judge referred to the
prevalence of death sentence In certain countries and
observed that in certain countries where law provides
"slashing", "beheading", "taking the organ for organ"
F like 'eye for eye', 'tooth for tooth' to the accused, It shows
the growth of criminal jurisprudence. That apart, he had
referred to the speech of the then Chief Justice of the
High Court, and It Is clearly demonstrable that the same
has Influenced his appreciation, analysis and perception.
Being Influenced by the erroneous notions of law and
G speech of the Chief Justice, may be understanding It
totally out of context, his passion and prejudices have
dominated over his reasoning faculties and the result, Is
devastating. [Para 16] [772-F-H; 773-A]
H 3. A Judge presiding over a criminal trial has the
OMA@ OMPRAKASH AND ANR. v. STATE OF 747
TAMIL NADU
sacrosanct duty to demonstrate that he applies the A
correct principles of law to the facts regard being had to
the precedents in the field. A Judge trying a criminal case
has a sacred duty to appreciate the evidence in a seemly
manner and is not to be governed by any kind of
individual philosophy, abstract concepts, conjectures B
and surmises and should never be influenced by some
observations or speeches made in certain quarters of the
society but not in binding judicial precedents. He should
entirely ostracise prejudice and bias. The bias need not
be personal but may be an opinionated bias. It is his c
obligation to understand and appreciate the case of the
prosecution and the plea of the defense In proper
perspective, address to the points Involved for
determination and consider the material and evidence
brought on record to substantiate the allegations and 0
record his reasons with sobriety sans emotion. He must
constantly keep in mind that every citizen of this country
Is entitled to a fair trial and further If a conviction Is
recorded It has to be based on the guided parameters of
law. [Paras 17 and 18) [773-e-G]
E
Hindustan Times Ltd. v. Union of India and Ors. (1998)
2 sec 242: 1998 (1) SeR 4; State of W. B. Ors. v. Shivanand
Pathak and Ors. (1998) 5 sec 513: 1998 (1) SeR 811 -
relied on.
F
4. When sentence Is Imposed, It has to be based on
sound legal principles, regard being had to the command
of the statute, nature of the offence, collective cry and
anguish of the victims and, above all, the "collectlve
conscience" and doctrine of proportionality. Neither the G
vanity of tho Judge, nor his pride of learning In other
flelds should Influence his decision or Imposition of
sentence. He must practise the conscience of lntellectunl
honesty and deal with the matter with all the experience
and humility at his command. He should remind himself H
748 SUPREME COURT REPORTS [2012] 13 S.C.R.
A that some learning does not educate a man and definitely
not a Judge. The learning has to be applied with
conviction which is based on proper rationale and
without forgetting that human nature has imperfect
expression when founded bereft of legal principle. He
B should not usher in his individual satisfaction but
adjudge on objective parameters failing which the whole
exercise is likely to be named "monstrous legalism". He
should not be swayed away with any kind of sensational
aspect and individual predilections. If it is done, the same
c would tantamount to entering into an area of emotional
labyrinth or arena of mercurial syllogism. [Paras 18 and
19) [774-A-D; 775-0)
5. In a criminal trial, while recording the sentence, he
should have been guided and governed by established .
D principles and not by personal notions or even ideas of
eminent personalities Binding judgments should be the
Bible of a Judge and there should not be any deviation.
The trial court judges should refrain themselves from
engaging in innovative creativity or "borrowed creativity"
E which has no sanction in Law. [Para 20) [775-H; 776-A-B]
Case Law Reference:
In the judgment of K.S. Radhakrishnan, J.:
F (1980) 2 sec 684 relied on Para 12
1983 (3) SCR 413 relied on Para 12
1973 (2) SCR 541 relied on Para 12
1998 (2) SCR 162 relied on Para 14
G
1989 (2) SCR 498 relied on Para 14
2001 (4) Suppl. SCR 298 relied on Para 14
408 U.S. 238 (1972) referred to Para 16
H 428 U.S. 153 (1976) referred to Para 16
OMA @ OMPRAKASH AND ANR. v. STATE OF 749
TAMIL NADU
1998 (2) SCR 734 relied on Para 31 A
1998 (3) SCR 978 relied on Para 32
2007 (5) SCR 766 relied on Para 33
(1999) 1 sec 57 relied on Para 36 B
2011 (9) SCR 101 relied on Para 36
In the judgment of Dipak Misra, J. :
(1980) 2 sec 684 followed Para 3
c
1973 (2) SCR 541 followed Para 3
1980 (3) SCR 383 followed Para 5
1983 (3) SCR 413 relied on Para 7
2002 (1) SCR 377 relied on Para 11 D
2011 (14) SCR 921 relied on Para 12
2011 (11) SCR 744 referred to Para 12
2010 (10) SCR 262 referred to Para 12 E
2011 (1) SCR 929 referred to Para 12
2011 (2 ) SCR 939 referred to Para 12
2011 (7) SCR 354 referred to Para 12
F
2011 (11) SCR 744 relied on Para 13
2011 (6) SCR 1104 relied on Para 14
1998 (1) SCR 4 relied on Para 17
G
1998 (1) SCR 811 relied on Para 19
CRIMINAL APPELLATE JURISDICTION : CRIMINAL
APPEAL NO. 143 OF 2007.
From the Judgment and Order dated 27.07.2006 of the
H
750 SUPREME COURT REPORTS [2012] 13 S.C.R.
A High Court of Judicature at Madras in Criminal Appeal No. 566
of 2006.
Sanjay Jain, Sudhakar Kulwant, Rachna Golcha, Afshan
Pracha for the Appellants.
8 C. Paramasivam, M. Yogesh Kanna (for B. Balaji) for the
Respondent.
The Judgments of the Court was delivered by
K.S. RADHAKRISHNAN, J. 1. Appellants, herein, were
awarded death sentence by the trial court after having found
C them guilty under Sections 395, 396 and 397 of Indian Penal
Code (for short 'IPC'). They were sentenced to death by
hanging under subsection 5 of Section 354 of Criminal
Procedure Code for offences committed under Section 396
IPC. The trial court after noticing that, the accused persons
D came from a State about 2000 k.m. away from Tamil Nadu, held
as follows:
"In this case, the accused came from a state about 2000
k.m. from our state and they did not think that the victims
E were also human like them but they thought only about the
well being of their family and their own life and committed
the fear of death amongst the common public of our state
by committing robbery and murder for about 11 years.
Therefore, this court is of the opinion that the death
sentence that would be imposed on them would create a
F fear amongst the criminals who commit such crime and
further this case is a rarest of rare case that calls for the
imposition of death sentence."
2. We have noticed that the trial Court, among other
G grounds, was also influenced by a speech made by the then
Chief Justice of Tamil Nadu as well as a judgment delivered
by another learned Judge of Madras High Court on rowdy
panchayat system. Following that judgment and the provision
under Section 396 IPC, the trial court held that the accused
H deserves no sympathy and he be sent to the gallows.
OMA @ OMPRAKASH AND ANR. v. STATE OF 751
TAMIL NADU [K.S. RADHAKRISHNAN, J.]
3. The trial court then placed the matter before the Madras A
High Court for confirmation of the death sentence awarded to
the accused persons. Meanwhile, the accused persons also
preferred criminal appeal No. 566 of 2006 against the award
of death sentence. The appeal was partly allowed and
conviction against Accused Nos. 1 and 2 under Sections 395, B
396 and 397 IPC were confirmed but the sentence under
Section 396 IPC was modified to that of life imprisonment
instead of death sentence. Against which, accused Nos. 1 and
2 came up with this appeal. While this appeal was pending,
the first appellant (A 1) died and the second appellant (A2) has c
prosecuted this appeal.
4. The prosecution case is as follows:
The appellants and nine other absconding accused
persons entered the house of one Lakshmi (PW 2) at 1
O' clock in the night of 07 .06.1995 with the intention of D
committing burglary with iron rods in their hands and
burgled 17 tolas of gold and Rs.5,000/- in cash. In that
process, it was alleged that they had strangulated Doctor
Mohan Kumar, husband of PW 2 with a rope and thereby
killed him. It was alleged that the accused assaulted PW E
2, her son Sudhakar (PW 5) and other son Sakthivel (PW
6). While escaping, they had also attacked Bormin
Varghese (PW 1) with iron rod. FIR Cr. No. 403of1995
under Sections 396, 397 IPC was registered at 5.30 am
on 07.06.1995 at Police Station Walajapet on the F
statement of one Patrick Varghese recorded by PW 7.
Post Mortem of the deceased was conducted at 2.30 p.m.
on 07.06.1995.
5. The prosecution could not nab the accused persons for
over ten years. A2 was arrested on 26.02.2005 in connection G
with some other case in Cr. No. 59 of 1996. It is the
prosecution case that his finger prints tallied with the ones lifted
from the place of occurrence in that other case. Further, it was
also stated, as per the investigation, A2 made a disclosure and
pursuant to that the iron rod (M.O. 1) used 10 years back was H
752 SUPREME COURT REPORTS [2012] 13 S.C.R.
A recovered.
6. A 1 was arrested on 21.09.2005 by the special team in
connection with some other case in Cr. No. 352 of 2004 of Sri
Perumbatoor Police Station. An identification parade was
conducted so far as A1 is concerned on 20.10.2005 in which
B PW 10, Karthik an Auto Driver said to have identified A 1.
Later, the charge-sheet was filed by PW 15 on 23.12.2005 and
charges under Sections 395, 396 and 397 IPC were framed
against the accused persons on 24.03.2006.
C 7. The prosecution examined 15 witnesses to prove the
case against the accused persons. Statements of the accused
persons were recorded under Section 313 Cr.P .C. on
17.04.2006.
8. The trial court, as already indicated, convicted both the
o accused persons on 21.04.2006 for the offences under
Sections 395, 396 and 397 IPC. The trial court granted life
imprisonment under Section 395 and fine of Rs.1,000/- and
they were sentenced to death for the offence under Section 396
IPC. They were also sentenced for RI for 7 years under Section
E 397 IPC.
9. The High Court, as already indicated, vide judgment
dated 27.07.2006 converted the sentence of death to life
imprisonment under Section 396 IPC and rest of the sentence
on other heads were confirmed.
F 10. Shri Sanjay Jain, learned counsel appearing for the
appellant (A2) submitted that the trial court and the High Court
had committed a grave error in convicting the accused persons.
Learned counsel challenged his conviction mainly on two
grounds: one on the ground of non-conducting the identification
G parade so far as accused No.2 is concerned and other on the
ground of recovery of alleged iron rod. Learned counsel
submitted that A2 was arrested after ten years of incident and
was not properly identified by any of the witnesses. Learned
counsel also highlighted the contradictions in the evidence of
H PW1, PW2 and PW15 and brought out the lacuna in the
OMA @ OMPRAKASH AND ANR. v. STATE OF 753
TAMIL NADU [K.S. RADHAKRISHNAN, J.]
evidence of those witnesses. It was pointed out that the A
identification parade was conducted only in respect of A 1 who
is no more and so far as A2 is concerned, no identification
parade was conducted. Further, it was pointed out that the
photograph of the appellant was shown to PW 1 which was
marked with the objection of the accused. Further, learned B
counsel pointed out that none of the witnesses in their
deposition had stated that they could identify A2. Learned
counsel pointed out that it was the prosecution case that a rod
was used for committing the crime but was not recovered and
the one alleged to have recovered had nothing to do with the c
crime. Learned counsel submitted that the prosecution
miserably failed to prove the case against the appellant beyond
reasonable doubt and that this is a fit case where this Court
should have given the benefit of doubt and the accused be
acquitted. D
11. Shri C. Paramasivam, learned counsel appearing for
the State submitted that the High Court has rightly confirmed
the conviction of the appellant and reduced the sentence to life
imprisonment. Learned counsel submitted that there is no fixed
rule with regard to the period within which test identification E
parade be held. Further, it was pointed out that no motive was
alleged against the prosecution for the delay in conducting test
identification parade. Learned counsel also submitted that
even in the absence of test identification parade, the
identification of accused persons by the witnesses in court is F
a substantive piece of evidence. Further, it was also pointed
out that the gang of dacoits from Haryana and Rajasthan States
used to come down to state of Tamil Nadu and commits
heinous crimes like dacoity and murder and after arrest of those
accused persons, several undetected cases could be detected G
and few of the accused persons have been convicted. Learned
counsel submitted that the trial court and the High Court have
rightly convicted the accused persons relying on the evidence
of PW 1, PW 2, PW 5 and PW 10.
12. We are unhappy in the manner in which Sessions Court H
754 SUPREME COURT REPORTS [2012] 13 S.C.R.
A has awarded death sentence in the instant case. The tests laid
down by this Court for determining the rarest of rare cases in
Bachan Singh v. State of Punjab (1980) 2 SCC 684 and
Machhi Singh & Ors. v. State of Punjab (1983) 3 SCC 470
and other related decisions like Jagmohan Singh v. State of
B U.P. (1973) 1 sec 20, were completely overlooked by the
Sessions Court. The Sessions Court had gone astray in
referring to the views expressed by the then Chief Justice of
Madras in a lecture delivered at Madurai, which advice
according to the Sessions Judge was taken note of by another
c learned Judge in delivering a judgment in rowdy panchayat
system. Sessions Judge has stated that he took into
consideration that judgment and the provision in Section 396
1
of the Indian Penal Code to hold that the accused had
committed the murder and deserved death sentence. Further,
the trial court had also opined that the imposition of death
0
sentence under Section 396 IPC is the only weapon in the
hands of the judiciary under the prevailing law to help to
eliminate the crime and the judgment of the trial court should
be on that ground.
E 13. It is apposite to refer to the special reasons which
weighed with the Sessions Judge to award the death sentence
which reads as follows:
"36. In this case, it has been decided by this court to
impose the maximum sentence of death to be imposed
F on the accused No. 1 and 2, under Section 396 of the
Indian Penal Code, under Section 354(3) of the Criminal
Procedure Code, the special reasons for awarding such
sentence to be given show that the case is a case of rarest
of rare cases. Therefore, this court gives the following
G reasons:
(a) xxx xxx xxx
(b) Before the enactment of Criminal Procedure
Code, many years ago, civilization has come into
H existence. From the rule of Kingdom to the rule of people
OMA @ OMPRAKASH AND ANR. v. STATE OF 755
TAMIL NADU [K.S. RADHAKRISHNAN, J.]
and the democracy and constitution came into existence A
in many countries. In these circumstances, the death
sentence is prevailing in all the countries in different from
and that sentence is imposed on such criminal who
deserves for the same. We all know that more particularly
in the court in like America, the sentence like 'lynching' has B
attained the legal form and given to the deserving criminals
and in Arab countries the law provide for imposing
sentence like 'slashing', 'beheading' taking the organ for
organ like 'eye for eye', 'tooth for tooth'. The above
mentioned facts are the development of criminal c
jurisprudence. Therefore, this court is of the opinion that
it is proper to impose death sentence to the accused in
this case.
(c) xxx xxx xxx
(d) xxx xxx xxx D
(e) In this case, the accused came from a State
about 2000 k.m. from our State and they did not think that
the victims were also human like them but they thought only
about the wellbeing of their family and their own life and E
committed the fear of death amongst the common public
of our State by committing robbery and murder for about
11 years. Therefore, this court is of the opinion that the
death sentence that would be imposed on them would
create a fear amongst the criminals who commit such F
crime and further this case is a rarest of rare cases that
call for the imposition of death sentence.
(f) The honorable Chief Justice of High Court of
Madras, Justice A. P. Shah while delivering a lecture at
Madurai said strict laws should be enacted as regard to G
Child abuse and the persons committing the crime should
be punished accordingly. This advise was taken note of
the honorable Justice Karpagavinayagm while delivering
a judgment on rowdy panchayat system. He ordered that
the government should enact suitable law to eliminate this H
756 SUPREME COURT REPORTS [2012] 13 S.C.R.
A menace. Taking this judgment into consideration and that
there is a provision in Section 396 of the Indian Penal
Code that the people involved in dacoity can be imposed
with death sentence, the accused who have committed the
murder without any pity deserve to be imposed with the
B death sentence. This court is also of the opinion that the
imposition of death sentence under Section 396 of the
Indian Penal Code is the only weapon in the hands of the
judiciary under the prevailing law to help to eliminate the
crime. Accordingly this judgment should be. Therefore,
c this court is of the view that the death sentence should be
imposed on the accused."
(emphasis added)
14. We cannot countenance any of the reasons which
. weighed with the Sessions Judge in awarding the death
0 sentence. Reasons stated in para 36(b) and (e) in awarding
death sentence in this case exposes the ignorance of the
learned judge of the criminal jurisprudence of this country.
15. Section 354(3) of the Code states whenever a Court
E awards death sentence, it shall record special reasons. Going
by the current penological thought, imprisonment of life is the
rule and death sentence is an exception. The legislator's intent
behind enacting Section 354(3) clearly demonstrates the
concern of the legislature. This principle has been highlighted
F in several judgments of this Court apart from the judgments
already referred to. Reference may also be made to few of
the judgments of this Court, such as Rona/ James v. State of
Maharashtra, (1998) 3 SCC 625; Allauddin Mian v. State of
Bihar, (1989) 3 SCC 5; Naresh Giri v. State of M.P., (2001) 9
sec 615 etc. We are disturbed by the casual approach made
G by the Sessions Court in awarding the death sentence. The
'special reasons' weighed with the trial judge to say the least,
was only one's predilection or inclination to award death
sentence, purely judge-centric. Learned judge has not
discussed the aggravating or mitigating circumstances of this
H case, the approach was purely 'crime-centric'.
OMA @ OMPRAKASH AND ANR. v. STATE OF 757
TAMIL NADU [K.S. RADHAKRISHNAN, J.]
16. We are really surprised to note the "special reasons" A
stated by the trial judge in para 36(b) of the judgment. We fail
to see why we import the criminal jurisprudence of America or
the Arab countries to our system. Learned trial judge speaks
of sentence like "lynching" and described that it has attained
legal form in America. Lynching means kill someone for an B
alleged offence without a legal trial, especially by hanging.
Learned judge failed to note that the constitutionality of death
sentence came up for consideration before the U.S. Supreme
Court in William Henry Furman v. State of Georgia 408 U.S.
238 (1972), which involved three persons under death c
sentence, more than 600 prisoners on death row. Five Judges
invalidated the death penalty, four dissented and the Court held
that death penalty to be cruel and unusual punishment in
violation of the 8th and 14th amendments. Later in Gregg v.
Georgia [ 428 U.S. 153 (1976)], the court laid down the concern 0
expressed in Furman. In the United States, some States have
done away with death sentence as well. The judges' inclination
to bring in alleged system of lynching to India and to show it as
special reason is unfortunate and shows lack of exposure to
criminal laws of this country. Learned trial judge while showing
E
special reasons referred to law prevailing in Arab countries,
like imposing sentence of 'slashning' beheading, taking organ
for organ like"eye for eye", "tooth for tooth" and says those are
the developments of criminal jurisprudence. Learned judge then
says that the accused persons in the present case also deserve
death sentence. Learned judge lost sight of the fact that the F
Criminal Jurisprudence of this country or our society does not
recognize those types of barbaric sentences. We are surprised
to see how those factors have gone into one's mind in awarding
death sentence.
G
17. We are also not concerned with the question whether
the criminals have come from 20 km away or 2000 km away.
Learned judge says that they have come to "our state", forgetting
the fact that there is nothing like 'our state' or 'your state'. Such
parochial attitude shall not influence or sway a judicial mind.
H
758 SUPREME COURT REPORTS [2012) 13 S.C.R.
A Learned judge has further stated, since the accused persons
had come from a far away state, about 2000 km to "our state"
for committing robbery and murder, death sentence would be
imposed on them. Learned judge has adopted a very strange
reasoning, needs fine tuning and proper training ..
B 18. Learned trial judge in para 36(f} has also referred to a
judgment of the High Court rendered by a learned Judge of the
High Court on "rowdy panchayat system". Learned trial judge
has stated that he has taken into consideration that judgment
also in reaching the conclusion that death senten'ce be
C awarded. We are not in a position to know how that judgment
is relevant or applicable in awarding death sentence. Learned
trial judge has also not given the citation of that judgment or
has given any explanation, as to how that judgment is applicable ·
to the case on hand.
D 19. Learned trial judge has also opined that the imposition
of death sentence under Section 396 of the IPC is the only
weapon in the hands of judiciary under the prevailing law to help
to eliminate the crime. Judiciary has neither any weapon in its
hands nor uses it to eliminate crimes. Duty of the judge is to
E decide cases which come before him in accordance with the
constitution and laws, following the settled judicial precedents.
A Judge is also part of the society where he lives and also
conscious of what is going on in the society. Judge has no
weapon or sword. Judge's greatest strength is the trust and
F confidence of the people, whom he serves. We may point out
that clear reasoning and analysis are the basic requirements
in a judicial decision. Judicial decision is being perceived by
the parties and by the society in general as being the result of
a correct application of the legal rules, proper evaluation of facts
G based on settled judicial precedents and judge shall not do
anything which will undermine the faith of the people.
20. We also fail to see how the reasons stated in para 36(f}
be a guiding factor to award death sentence. One of the Code
of Conduct recognized at the Bangalore Conference of the year
H 2001 reads as follows:
OMA @ OMPRAKASH AND ANR. v. STATE OF 759
TAMIL NADU [K.S. RADHAKRISHNAN, J.]
"A judge shall exercise the judicial function independently A
on the basis of the judge's assessment of the facts and in
accordance with a conscientious understanding of the law,
free of any extraneous influences, inducement, pressures,
threats or interference, direct or indirect, from any quarter
or for any reason." B
21. Criminal Court while deciding criminal cases shall not
be guided or influenced by the views or opinions expressed by
Judges on a private platform. The views or opinions expressed
by the Judges, jurists, academicians, law teachers may be food
for thought. Even the discussions or deliberations made on the C
State Judicial Academies or National Judicial Academy at
Bhopal, only update or open new vistas of knowledge of judicial
officers. Criminal Courts have to decide the cases before them
examining the relevant facts and evidence placed before them,
applying binding precedents. Judges or academicians opinions, D
predilection, fondness, inclination, proclivity on any subject,
however eminent they are, shall not influence a decision
making process, especially when judges are called upon to
decide a criminal case which rests only on the evidence
adduced by the prosecution as well as by the defence and E
guided by settled judicial precedents. National Judicial
Academy and State Judicial Academies should educate our
judicial officers in this regard so that they will not commit such
serious errors in future.
22. The High Court of Madras heard the Criminal Appeal F
No. 566/2006 filed by the accused Nos. 1 and 2, along with
Referred Trial 1 of 2006. The High Court, however, did not
confirm the death sentence awarded by the trial Court, but
awarded life sentence to both the accused persons. As already
indicated, we are, in this case, concerned only with the G
conviction and sentence awarded on the 2nd accused, since
1st accused is no more.
23. We may indicate at the outset that the accused
persons were apprehended after a period of ten years from the
date of the incident and nine other accused persons are still H
760 SUPREME COURT REPORTS [2012] 13 S.C.R.
A absconding. The incident had taken place on 07.06.1995 and
the accused persons were arrested on 26.02.2005 from
Rajasthan in connection with some other case ie. Cr. No. 59
of 1996. The prosecution version that A-2 finger prints tallied
with ones lifted from the place of occurrence in Cr. No. 59 of
s 1996. Further, it is also the prosecution case that A2 made a
disclosure and pursuant to that iron rod (M.O. No.1) used 10
years back was recovered. An identification parade was·
conducted so far as A 1 is concerned on 20.10.2005, who is
now no more. However, no identification parade was
c conducted so far as A-2 is concerned. It has come out in
evidence that the photographs of A-2 was shown to PW 1 by
the police on 30.10.2005 and asked him to identify the accused
and on identification by PW 1, the accused was interrogated
by the police. In cross-examination, PW1 has stated as follows:
D "Accused No.2 attacked me before I could see him and
make any enquiry. He assaulted me with a rod. I could
not see with which hand he assaulted me. It is incorrect
to suggest that the accused did not assault me as stated
by me."
E 24. PW 1 also further stated in cross-examination as
follows:
"There was light only after the neighbors switched on the
light. It was dark earlier. It is incorrect to suggest that it is
not possible to see the accused in the darkness."
F
25. PW 2 - Lakshmi, wife of the deceased in her
examination-in-chief stated as follows:
"I opened my eyes and saw. When I saw, accused Nos.
1 and 2 were present amongst the persons. I fainted
G immediately. There was commotion in my house."
26. In cross-examination, she has stated as follows:
"In the police interrogation, I did not tell that the accused
Nos. 1 and 2 were present in the incident that took place
H in my house."
OMA @ OMPRAKASH AND ANR. v. STATE OF 761
TAMIL NADU [K.S. RADHAKRISHNAN, J.]
27. PW 5, brother of PW 1, in his examination-in-chief has A
stated as follows:
"At that time accused Nos. 1 and 2 attacked me with the
rod. I fell down and fainted. When I regained
consciousness I was in the room of my father. My father,
my mother and younger brother sustained injuries. I asked 8
my mother to wake up my father. Myself and my mother
tried to wake up my father. After that neighbors admitted
us in the hospital. I remember it was in the C.M.C.
hospital. The accused attacked me similar rod that is
being showed to me by you. Material object No. 1 is the C
rod."
28. In cross-examination, PW 5 stated as follows:
"In the police enquiry I told that I did not know what
happened as I was sleeping. I do not remember whether D
I told the doctor in the hospital at Valajah that I was
assaulted by unknown persons ................... In the police
interrogation, I did not tell that I ha.d seen the accused No.
1 and 2 ................ "
29. The investigation officer stated that he did not receive E
any documents about the arrest of the appellant (A2) and he
had not mentioned in the final report about the crimes that had
taken place in other States.
30. We may indicate that in the instant case, FIR was
F
registered against unknown persons. A2, as already stated,
was arrested after ten years on 26.02.2005 in connection with
some other crime. We fail to see how PW1 and PW2 could
identify A2 in the court at this distance of time. They were
guided by the photographs repeatedly shown by the police.
G
31. Evidently, the witnesses did not know the accused
earlier, hence the accused could be identified only through a
test identification parade which was not done in this case, so
far as A-2 is concerned. In this connection, we may refer to
the judgment of this court in Mohd. Iqbal M. Shaikh v. State of H
762 SUPREME COURT REPORTS [2012] 13 S.C.R.
A Maharashtra (1998) 4 SCC 494 wherein this Court held that:
"If the witness did not know the accused persons by name
but could only identify from their appearance then a test
identification parade was necessary, so that, the
substantive evidence in court about the identification, which
B is held after fairly a long period could get corroboration
from the identification parade. But unfortunately the
prosecution did not take any steps in that regard and no
test identification parade had been held." ·
C 32. This Court in Ravindra Alias Ravi Bansi Gohar v.
State of Maharashtra and Others (1998) 6 SCC 609
deprecated the practice of showing the photographs for
indentifying the culprits and held as follows:
"The identification parade belongs to the investigation
D stage and they serve to provide the investigating authority
with materials to assure themselves if the investigation is
proceeding on the right lines. In other words, it is through
these identification parades that the investigating agency
is required to ascertain whether the persons whom they
E suspect to have committed the offence were the real
culprits - and not by showing the suspects or their
photographs. Such being the purpose of identification
parades, the investigating agency, by showing the
photographs of the suspects whom they intended to place
in the Tl parade, made it farcical. If really the investigating
F
agency was satisfied that PWs 2 and 12 did know the
appellants from before and they were in fact amongst the
miscreants, the question of holding the Tl parade in
respect of them for their identification could not have
arisen."
G
33. In Ravi alias Ravichandran v. State represented by
Inspector of Police (2007) 15 SCC 372, this Court held that:
"A judgment of conviction can be arrived at even if no test
identification parade has been held. But when a first
H information report has been lodged against unknown
OMA @ OMPRAKASH AND ANR. v. STATE OF 763
TAMIL NADU [K.S. RADHAKRISHNAN, J.]
persons, a test identification parade in terms of Section 9 A
of the Evidence Act, is held for the purpose of testing the
veracity of the witness in regard to his capability of
identifying persons who were unknown to him."
34. Further, it is also held that:
B
"It was incumbent upon the prosecution to arrange a test
identification parade. Such test identification parade was
required to be held as early as possible so as to exclude
the possibility of the accused being identified either at the
police station or at some other place by the witnesses C
concerned or with reference to the photographs published
in the newspaper. A conviction should not be based on a
vague identification."
35. A-2, it may be noted, was not named in the FIR, nor
any identification parade was conducted to identify him by the o
witnesses. It is rather impossible to identify the accused person
when he is produced for the first time in the court i.e. after ten
years since he was unknown to the witnesses. We are of the
view that it is a glaring defect which goes to the root of the case
since none of the witnesses had properly identified the E
accused.
36. We may notice that it is the case of prosecution that
one rod was also used for the murder of the deceased persons
in this case, but that rod was not recovered. One rod stated to
have been recovered at the instance of A2 could not be F
connected with the crime. PW 5 in his examination-in-chief
had stated that the accused had attacked him with a similar
rod that was being shown to him which would indicate that the
witness could not conclusively connect the rod which was used
for committing the crime. Further, the rod was recovered after G
a period of ten years of the incident and it is highly doubtful,
whether it was used for the commission of the offence. Further,
the prosecution case is that a rope was used for the
strangulation causing death to Dr. Mohan Kumar, but the rope
was not recovered. H
764 SUPREME COURT REPORTS [2012] 13 S.C.R.
A 37. In Dwarkadas Gehanmal v. State of Gujarat (1999) 1
SCC 57, this Court has held that it is for the prosecution to
prove that the object recovered has nexus with the crime. This
Court in Mustkeem alias Sirajudeen v. State of Rajasthan
(2011) 11 SCC 724 held, ''what is admissible under Section
B 27 of the Act is the information leading to discovery and not
any opinion formed on it by the prosecution." This Court held
as follows:
"With regard to Section 27 of the Act, what is important is
discovery of the material object at the disclosure of the
C accused but such disclosure alone would not automatically
lead to the conclusion that the offence was also committed
by the accused. In fact, thereafter, burden lies on the
prosecution to establish a close link between discovery of
the material object and its use in the commission of the
D offence. What is admissible under Section 27 of the Act
is the information leading to discovery and not any opinion
formed on it by the prosecution."
38. In this case, the prosecution could not prove that the
rod recovered has any nexus with the crime alleged to have
E been committed by A-2. We are of the view that the
prosecution, therefore, could not establish the guilt of the second
accused beyond reasonable doubt. The High Court, therefore,
committed a gross error in awarding life sentence to A2.
39. This appeal is, therefore, allowed and the conviction
F and sentence awarded to A-2 is set aside. We are
informed that the accused has already served the jail
sentence for more than eight years now. A-2 is, therefore,
set at liberty, unless he is wanted in any other case.
G DIPAK MISRA, J. 1. I respectfully concur with the
conclusion and views expressed by my learned Brother
Radhakrishnan, J. However, with regard to the ratiocination
made by the learned Sessions Judge while imposing the death
sentence, I propose to record my views in addition especially
H
OMA @ OMPRAKASH AND ANR. v. STATE OF 765
TAMIL NADU [DIPAK MISRA, J.]
in the context of the reasons which have already been A
reproduced by my learned brother.
2. Article 141 of the Constitution of India stipulates that the
law declared by the Supreme Court shall be binding on all
Courts within the territory of India. The reasons ascribed by
the learned trial Judge are required to be tested on the bedrock B
of precedents in their conceptual and perceptual eventuality.
3. In Bachan Singh v. State of Punjab 1, the majority, after
deliberating many an aspect, came to hold that the provision
under Section 302 of the Indian Penal Code which provides for c
imposition of death penalty neither violates the letter nor the
ethos and Article 19 of the Constitution. Testing the said
provision on the anvil of Articles 14 and 21 of the Constitution,
it reaffirmed the view taken by this Court in Jagmohan Singh
v. State of U.P. 2 and held that death penalty does not violate
0
Articles 14, 19 and 21 of the Constitution.
4. The majority proceeded to answer the question whether
the Court can lay down standards or norms restricting the area
of imposition of death penalty to narrow the categories of
murders and, in that context, it opined that standardisation of E
the sentencing process would tend to sacrifice at the altar of
blind uniformity, in fact, indeed there is a real danger of such
mechanical standardisation degenerating into a bed of
procrustean cruelty. Thereafter, the Bench proceeded to state
thus:- F
"As Judges, we have to resist the temptation to substitute
our own value-choices for the will of the people. Since
substituted judicial "made-to-order'' standards, howsoever
painstakingly made, do not bear the people's imprimatur,
they may not have the same authenticity and efficacy as G
the silent zones and green belts designedly marked out
and left open by Parliament in its legislative planning for
fair play of judicial discretion to take care of the variable,
1. c1sao) 2 sec 684.
2. (1973) 1 sec 20. H
766 SUPREME COURT REPORTS [2012) 13 S.C.R.
A unpredictable circumstances of the individual cases,
relevant to individualised sentencing. When Judges, acting
individually or collectively, in their benign anxiety to do what
they think is morally good for the people, take upon
themselves the responsibility of setting down social norms
B of conduct, there is every danger, despite their effort to
make a rational guess of the notions of right and wrong
prevailing in the community at large and despite their
intention to abide by the dictates of mere reason, that they
might write their own peculiar view or personal predilection
c into the law, sincerely mistaking that changeling for what
they perceive to be the community ethic. The perception
of "community" standards or ethics may vary from Judge
to Judge."
[Emphasis added]
D 5. The majority referred to the decision in Gurbaksh Singh
Sibbia v. State of Punjab 3 and stated that the observations
made therein aptly applied to the desirability and feasibility of
laying down standards in the area of sentencing discretion. In
the case of Gurbaksh Singh (supra), the Constitution Bench
E had observed thus:-
"Judges have to decide cases as they come before them,
mindful of the need to keep passions and prejudices out
of their decisions."
F 6. After stating broad guidelines relating to the mitigating
circumstances, the majority ultimately ruled thus:-
" Judges should never be bloodthirsty. Hanging of
murderers has never been too good for them. Facts and
Figures, albeit incomplete, furnished by the Union of India,
G show that in the past, courts have inflicted the extreme
penalty with extreme infrequency - a fact which attests to
the caution and compassion which they have always
brought to bear on the exercise of their sentencing
H 3. (1980) 2 sec 565.
OMA @ OMPRAKASH AND ANR. v. STATE OF 767
TAMIL NADU [DIPAK MISRA, J.]
discretion in so grave a matter. It is, therefore, imperative A
to voice the concern that courts, aided by the broad
illustrative guide-lines indicated by us, will discharge the
onerous function with evermore scrupulous care and
humane concern, directed along the highroad of legislative
policy outlined in Section 354(3) viz. that for persons B
convicted of murder, life imprisonment is the rule and death
sentence an exception. A real and abiding concern for the
dignity of human life postulates resistance to taking a life
through law's instrumentality. That ought not to be done
save in the rarest of rare cases when the alternative option c
is unquestionably foreclosed."
7. In Machhi Singh and Others v. State of Punjab 4 , a
three-Judge Bench explained the concept of rarest of rare
cases by stating that the reasons why the community as a whole
does not endorse the humanistic approach reflected in "death D
sentence-in-no-case" doctrine are not far to seek. In the first
place, the very humanistic edifice is constructed on the
foundation of "reverence for life" principle. When a member of
the community violates this very principle by killing another
member, the society may not feel itself bound by the shackles E
of this doctrine. Secondly, it has to be realized that every
member of the community is able to live with safety without his
or her own life being endangered because of the protective arm
of the community and on account of the rule of law enforced by
it. The very existence of the rule of law and the fear of being F
brought to book operates as a deterrent for those who have
no scruples in killing others if it suits their ends. Every member
of the community owes a debt to the community for this
protection.
8. After stating about the feeling of the community and its G
desire (or self preservation, the Court observed that the
community may well withdraw the protection by sanctioning the
death penalty. Thereafter, it ruled thus:-
4. (1983) 3 sec 410. H
768 SUPREME COURT REPORTS [2012] 13 S.C.R.
A "But the community will not do so in every case. It may do
so "in rarest of rare cases" when its collective conscience
is so shocked that it will expect the holders of the judicial
power centre to inflict death penalty irrespective of their
personal opinion as regards desirability or otherwise of
B retaining death penalty."
9. Emphasis was laid on certain aspects, namely, manner
of commission of murder, motive for commission of murder,
anti social or socially abhorrent nature of the crime, magnitude
of crime and personality of the victim of murder. After so
C stating, the propositions emerged from Bachan Singh (supra)
were culled out which are as follows:-
"(i) The extreme penalty of death need not be inflicted
except in gravest cases of extreme culpability.
D (ii) Before opting for the death penalty the circumstances
of the 'offender' also require to be taken into consideration
along with the circumstances of the 'crime'.
(iii) Life imprisonment is the rule and death sentence is an
exception. In other words death sentence must be imposed
E only when life imprisonment appears to be an altogether
inadequate punishment having regard to the relevant
circumstances of the crime, and provided, and only
provided, the option to impose sentence of imprisonment
for life cannot be conscientiously exercised having regard
F to the nature and circumstances of the crime and all the
relevant circumstances.
(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so the
mitigating circumstances have to be accorded full
G weightage and a just balance has to be struck between
the aggravating and the mitigating circumstances befon:~
the option is exercised."
10. Thereafter, the Court stated that to apply the said
guidelines, the following questions are required to be asked and
H answered:-
OMA @ OMPRAKASH AND ANR. v. STATE OF 769
TAMIL NADU [DIPAK MISRA, J.]
"(a) Is there something uncommon about the crime which A
renders sentence of imprisonment for life inadequate and
calls for a death sentence?
(b) Are the circumstances of the crime such that there is
no alternative but to impose death sentence even after
according maximum weightage to the mitigating 8
circumstances which speak in favour of the offender?"
11. In Lehna v. State of Haryana5 a three-Judge Bench,
after referring to the pronouncements in Bachan Singh (supra)
and Machhi Singh (supra), ruled under what circumstances the C
collective conscience of the community is likely to be shocked.
We may fruitfully quota a passage from the same:-
"A convict hovers between life and death when the
question of gravity of the offence and award of adequate
sentence comes up for consideration. Mankind has shifted D
from the state of nature towards a civilized society and it
is no longer the physical opinion of the majority that takes
away the liberty of a citizen by convicting him and making
him suffer a sentence of imprisonment. Award of
punishment following conviction at a trial in a system E
wedded to the rule of law is the outcome of cool
deliberation in the court room after adequate hearing is
afforded to the parties. accusations are brought against
the accused. the prosecuted is given an opportunity of
meeting the accusations by establishing his innocence. It F
is the outcome of cool deliberations and the screening of
the material by the informed man i.e. the Judge that leads
to determination of the lis.
The principle of proportion between crime and punishment
is a principle of just desert that serves as the foundation G
of every criminal sentence that is justifiable. As a principle
of criminal justice it is hardly less familiar or less important
than the principle that only the guilty ought to be punished.
Indeed, the requirement that punishment not be
s. (2002) 3 sec 76. H
770 SUPREME COURT REPORTS [2012] 13 S.C.R.
A disproportionately great, which is a corollary of just desert,
is dictated by the same principle that does not allow
punishment of the innocent, for any punishment in excess
of what is deserved for the criminal conduct is punishment
without guilt."
B [Emphasis added]
12. In Haresh Mohandas Rajput v State of Maharshtra6,
the Bench referred to the principles in Bachan Singh (supra)
and Machhi Singh (supra) and proceeded to state as follows:-
c "The rarest of the rare case" comes when a convict would
be a menace and threat to the harmonious and peaceful
coexistence of the society. The crime may be heinous or
brutal but may not be in the category of "the rarest of the
rare case". There must be no reason to believe that the
D accused cannot be reformed or rehabilitated and that he
is likely to continue criminal acts of violence as would
constitute a continuing threat to the society. The accused
may be a menace to the society and would continue to be
so, threatening its peaceful and harmonious coexistence.
E The manner in which the crime is committed must be such
that it may result in intense and extreme indignation of the
community and shock the collective conscience of the
society. Where an accused does not act on any spur-of-
the-moment provocation and indulges himself in a
deliberately planned crime and meticulously executes it,
F
the death sentence may be the most appropriate
punishment for such a ghastly crime. The death sentence
may be warranted where the victims are innocent children
and helpless women. Thus, in case the crime is committed
in a most cruel and inhuman manner which is an extremely
G brutal, grotesque, diabolical, revolting and dastardly
manner, where his act affects the entire moral fibre of the
society e.g. crime committed for power or political
ambition or indulging in organised criminal activities, death
H 6. c2011) 12 sec 56.
OMA @ OMPRAKASH AND ANR. v. STATE OF 771
TAMIL NADU [DIPAK MISRA, J.]
sentence should be awarded. (See C. Muniappan v. State A
of T.N. 7, Dara Singh v. Republic of lndia 8 , Surendra Koli
v. State of U.P. 9, Mohd. Mannan v. State of Bihar10 and
Sudam v. State of Maharashtra 11 .)"
13. In Sham Alias Kishore Bhaskarrao Matkari v. State
of Maharashtra 12, while dealing with the justifiability of B
imposition of death penalty, the Court took note of the
aggravating and mitigating circumstances and eventually
opined that though the appellant therein caused death of three
persons, he had no pre-plan to do away with the family of his
brother and the quarrel started due to the land dispute and, in C
fact, on the fateful night, he was sleeping with the other victims
in the same house and in those circumstances and other
material placed clearly showed that he had no pre-plan or
predetermination to eliminate the family of his brother. The
Bench also took note of his antecedents and did not agree with D
the view expressed by the High Court which had enhanced the
sentence from life to death on the ground that it was a rarest
of the rare case where extreme penalty of death was called for.
14. Recently, in Mohammed Ajmal Mohammad Amir
Kasab alias Abu Mujahid v. State of Maharashtra 13, the Court E
referred to the earlier decisions and taking note of the terrorist
attack from across the border, the magnitude of unprecedented
enormity on all scales, the conspiracy behind the attack, the
preparation and training for the execution, and more
importantly, its traumatizing effect, opined that it was the rarest F
of rare case to come before this Court since the birth of
Republic. The Bench, in that context, expressed thus:-
1. c2010) 9 sec 567.
8. c2011) 2 sec 49. G
9. c2011) 4 sec 80.
10. c2011) 5 sec 509.
11. c2011) 1sec125.
12. c2011) 10 sec 389.
13. c2012) 9 sec 1. H
772 SUPREME COURT REPORTS [2012) 13 S.C.R.
A "Putting the matter once again quite simply, in this country
death as a penalty has been held to be constitutionally
valid, though it is indeed to be awarded in the "rarest of
rare cases when the alternative option (of life sentence)
is unquestionably foreclosed". Now, as long as the death
B penalty remains on the statute book as punishment for
certain offences, including "waging war" and murder, it
logically follows that there must be some cases,
howsoever rare or one in a million, that would call for
inflicting that penalty. That being the position we fail to see
c what case would attract the death penalty, if not the case
of the appellant. To hold back the death penalty in this
case would amount to obdurately declaring that this Court
rejects death as lawful penalty even though it is on the
statute book and held valid by the Constitutional Benches
of this Court."
D
15. We have referred to the aforesaid decisions to
highlight that this Court, on number of occasions, has dealt with
under what circumstances death penalty could be imposed and
what are the mitigating factors not to impose such punishment.
E Illustrative guidelines have been provided, and, needless to say,
it would depend upon the facts of each case. No strait-jacket
scale can be provided as has been said in number of
pronouncements.
16. As is obvious from the reasoning of the learned
F Sessions Judge, he has referred to the prevalence of death
sentence in certain countries and observed that in certain
countries where law provides "slashing", "beheading", "taking
the organ for organ" like 'eye for eye', 'tooth for tooth' to the
accused, it shows the growth of criminal jurisprudence. That
G apart, he had referred to the speech of the then learned Chief
Justice of the High Court, and it is clearly demonstrable that
the same has influenced his appreciation, analysis and
perception. Being influenced by the erroneous notions of law
and speech of the learned Chief Justice, may be understanding
H it totally out of context, his passion and prejudices have
OMA @ OMPRAKASH AND ANR. v. STATE OF 773
TAMIL NADU [DIPAK MISRA, J.]
dominated over his reasoning faculties and the result, as I A
perceive, is devastating.
17. In Hindustan Times Ltd. v. Union of India and
Others 14, a two-Judge Bench of this Court referred to an article
On Writing Judgments, by Justice Michael Kirby of Australia 15
wherein it has been highlighted, apart from any facet that the 8
legal profession is entitled to have, it demonstrated that the
Judge has the correct principles in mind, has properly applied
them and is entitled to examine the body of the judgment for
the learning and precedent that they provide and further
reassurance of the quality of the judiciary which is the centre- C
piece of our administration of justice. Thus, the fundamental
requirement is that a Judge presiding over a criminal trial has
the sacrosanct duty to demonstrate that he applies the correct
principles of law to the facts regard being had to the precedents
in the field. A Judge trying a criminal case has a sacred duty D
to appreciate the evidence in a seemly manner and is not to
be governed by any kind of individual philosophy, abstract
concepts, conjectures and surmises and should never be
influenced by some observations or speeches made in certain
quarters of the society but not in binding judicial precedents. E
He should entirely ostracise prejudice and bias. The bias need
not be personal but may be an opinionated bias.
18. It is his obligation to understand and appreciate the
case of the prosecution and the plea of the defense in proper
perspective, address to the points involved for determination F
and consider the material and evidence brought on record to
substantiate the allegations and record his reasons with
sobriety sans emotion. He must constantly keep in mind that
every citizen of this country is entitled to a fair trial and further
if a conviction is recorded it has to be based on the guided G
parameters of law. And, more importantly, when sentence is
imposed, it has to be based on sound legal principles, regard
14. (1998) 2 sec 242.
15. *.((1990) (vol. 64. Australian Law Journal, p. 691)) H
774 SUPREME COURT REPORTS [2012] 13 S.C.R.
A being had to the command of the statute, nature of the offence,
collective cry and anguish of the victims and, above all, the
"collective conscience" and doctrine of proportionality. Neither
his vanity nor his pride of learning in other fields should influence
his decision or imposition of sentence. He must practise the
B conscience of intellectual honesty and deal with the matter with
all the experience and humility at his command. He should
remind himself that some learning does not educate a man and
definitely not a Judge. The learning has to be applied with
conviction which is based on proper rationale and without
c forgetting that human nature has imperfect expression when
founded bereft of legal principle. He should not usher in his
individual satisfaction but adjudge on objective parameters
failing which the whole exercise is likely to be named
"monstrous legalism". In this context, I may profitably reproduce
the profound saying of Sir P. Sidney :-
0
"In forming a judgment, lay your hearts void of fore-taken
opinions; else, whatsoever is done or said will be
measured by a wrong rule; like them who have the jaundice,
to whom everything appeareth yellow."
E 19. In this context, I may usefully refer to the pronouncement
in State of W B. Others v. Shivanand Pathak and Others 16,
wherein the High Court had affirmed the death sentence
imposed by the learned Sessions Judge. The High Court had
commenced the judgment with the expression that it was one
F of the most sensational trials of the recent years and the murder
is a diabolical one because the innocent persons have been
killed by the police officers who were supposed to be the
protectors of law-abiding citizens. Commenting on the said
expression, this Court observed thus:-
G "We are constrained to observe that the High Court has
not kept in view the several decisions of this Court and has
not examined the circumstances proved while considering
the question of sentence but on the other hand. have been
H 16. (1998) s sec 513.
OMA @ OMPRAKASH AND ANR. v. STATE OF 775
TAMIL NADU [DIPAK MISRA, J.]
swayed away with the fact that the trial is a sensational A
one. and therefore. the officials must be awarded the
extreme penalty of death. We do not find that it is a correct
appreciation of the law on the subject dealing with the
award of death penalty, even if a conviction under Sections
302/34 IPC is sustained. The learned Sessions Judge also B
came to the conclusion that the case can be treated to be
the rarest of rare cases as police officials on whose
shoulders the safety of citizens lies and being the
protectors of the society are accused for killing of three
civilians without any provocation and resistance." c
[Underlining is ours)
From the aforesaid, it is graphically clear that a judge, while
imposing sentence, should not be swayed away with any kind
of sensational aspect and individual predilections. If it is done,
the same would tantamount to entering into an area of emotional 0
labyrinth or arena of mercurial syllogism.
20. In the case at hand, as is perceptible, the learned trial
Judge has primarily been guided by some kind of notion and
connected them with civilized world and democracy which, in E
my considered opinion, should not have been at all referred to.
He should remember the language of Article 302 of IPC and
the precedents that govern the field for imposition of death
penalty. In that event, the perception might have been wrong
but it could not have been said that it is based on some kind
F
of personal philosophy. Thus, the view expressed does not
sustain the concept of law and rather, on the contrary, exhibits
a sanctuary of errors. Speeches or deliberations in any
academic sphere are not to be taken recourse to unless they
are in consonance with binding precedents. A speech
sometimes may reflect a personal expression, a desire and, G
where a view may not be appositely governed by words, is likely
to confuse the hearers. It is a matter of great remorse that the
learned trial Judge had ventured to enter into such kind of
adventure. It can be stated with certitude that in a criminal trial,
H
776 SUPREME COURT REPORTS (2012] 13 S.C.R.
A while recording the sentence, he should have been guided and
governed by established principles and not by personal notions
or even ideas of eminent personalities Binding judgments
should be the Bible of a Judge and there should not be any
deviation. I have said so, so that the trial Court judges are
B appositely guided and refrain themselves from engaging in
innovative creativity or "borrowed creativity" which has no
sanction in Law.
21. Consequently, the appeal stands allowed, the judgment
of conviction and order of sentence are set aside and the
C appellant is directed to be set at liberty forthwith unless he is
required to be detained in any other case.
K.K.T. Appeal allowed.
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