YOGENDRA @ JOGENDRA SINGHversusTHE STATE OF MADHYA PRADESH

248                      [2019]REPORTS
               SUPREME COURT    1 S.C.R. 248              [2019] 1 S.C.R.


A                    YOGENDRA @ JOGENDRA SINGH
                                       v.
                    THE STATE OF MADHYA PRADESH
                      (Criminal Appeal Nos. 84-85 of 2019)
B                             JANUARY 17, 2019
                 [S. A. BOBDE, L. NAGESWARA RAO AND
                          R. SUBHASH REDDY, JJ.]
            Penal Code, 1860 – ss.302, 326(A) and 460 – Murder –
      Conviction and death sentence – High Court affirmed conviction
C     and sentence – Prosecution case was that the appellant threw acid
      on the victim-deceased which resulted in her death – In the incident,
      grandmother, nephew and brother of the deceased also received
      acid burn injuries – Dying declaration was recorded by the Tehsildar
      – Deceased in her dying declaration stated that the appellant had
D     burnt her by pouring acid on her and that he used to harass her
      and abuse her on phone –Trial court held appellant guilty for murder
      and disfiguring and injuring these people by throwing acid – High
      Court confirmed the conviction and sentence – On appeal, held:
      Appellant was rightly convicted for causing the death of deceased
      – All the circumstances of the case and particularly the dying
E     declaration of victim unerringly pointed to the appellant as the one
      who caused her death beyond any reasonable doubt – The Dying
      Declaration of the deceased can be given highest probative value
      and offered a strong foundation for the conviction of the appellant
      – Crime against women.
F           Sentence/Sentencing – Death sentence – Appellant threw acid
      on the victim-deceased which resulted in her death – Whether there
      were special reasons to award death sentence to the appellant –
      Held: The term ‘special reasons’ undoubtedly means reasons that
      are one of a special kind and not general reasons – In the instant
      case, appellant committed this crime when he was out on bail in
G
      another case in which he was convicted for murder and his sentence
      was upheld – The earlier incident was totally unrelated to the
      circumstance of this case and took place almost ten years before
      this incident – This case was related to the appellant being
      disappointed in his relation with the deceased who he believed
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                                      248
  YOGENDRA @ JOGENDRA SINGH v. STATE OF MADHYA                           249
                   PRADESH

deserted him – The circumstance of the case and particularly the         A
choice of acid did not disclose a cold-blooded plan to murder the
deceased – It is possible that what was premeditated was an injury
and not death – There was no particular depravity or brutality in
the acts of the appellant that warranted a classification of this case
as ‘rarest of the rare’ – Therefore, the sentence of death imposed by
                                                                         B
the High Court is set aside and instead the appellant is awarded
life imprisonment – Penal Code, 1860 – ss.302, 326(A) and 460.
      Allowing the appeals, the Court
      HELD: 1. All the witnesses deposed that the appellant threw
acid on them as well. In fact the acid disfigured the face of PW-4.      C
PW 8, the father of the deceased deposed that as soon as he
came out from his room on hearing the cries of the deceased he
saw the appellant running away from the place. The said evidence
amply justified the conviction of the accused beyond any
reasonable doubt. The rest of the evidence is consistent, cogent
and reliable. The appellant committed this crime when he was             D
out on bail in another case wherein he has been convicted for
murder and his sentence has been upheld. The earlier incident
was totally unrelated to the circumstance of this case. The said
incident took place almost ten years before the present incident.
In the instant case, the incident is related to the appellant being      E
disappointed in his relation with the deceased who he believed
deserted him. The circumstance of the case and particularly the
choice of acid did not disclose a cold-blooded plan to murder the
deceased. Like in many cases the intention seems to have been
to severely injure or disfigure the deceased; in this case the
intention resulted into an attack more severe than planned which         F
then resulted in the death of the deceased. There was no
particular depravity or brutality in the acts of the Appellant that
warrants a classification of this case as ‘rarest of the rare’.
Therefore, the sentence of death imposed by the High Court is
set aside and instead the appellant is directed undergo                  G
imprisonment for life. [Paras 7, 8, 9, 11 and 12][252-F-G; 253-A,
C-E; 254-G-H; 255-A]
      Bachan Singh v. State of Punjab (1980) 2 SCC 684;
      Machhi Singh v. State of Punjab (1983) 3 SCC 470 :
      [1983] 3 SCR 413 – followed.                                       H
250             SUPREME COURT REPORTS                            [2019] 1 S.C.R.


A                                Case Law Reference
                (1980) 2 SCC 684                   followed          Para 10
                [1983] 3 SCR 413                   followed          Para 10
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
B     Nos. 84-85 of 2019.
            From the Judgment and Order dated 12.12.2014 of the High Court
      of Madhya Pradesh, Bench at Gwalior in Criminal Ref. Capital No. 1 of
      2014 and Criminal Appeal No. 883 of 2014.
            A. Sirajudeen, Sr. Adv., Ms. Minakshi Vij, Ms. Sudesh Kumari,
C     Advs. for the Appellant.
             Ms. Vanshaja Shukla, Arjun Garg, Advs. for the Respondent.
             The Judgment of the Court was delivered by
             S. A. BOBDE, J. 1. Leave granted.
D            2. These appeals are filed against the Judgment of the High Court
      of Madhya Pradesh, Gwalior Bench, dated 12.12.2014 confirming the
      death sentence awarded to the appellant by the Sessions Court, Ambah,
      District Morena (M.P.) vide its judgment in Sessions Trial No.388/2013
      dated 24.07.2014.The Appellant has been convicted under sections
E     302,326(A) and 460 of IPC and awarded capital punishment of death
      sentence, life sentence on three counts and fine of Rs.25,000/-each, and
      ten years’ R.I. and fine of Rs.5000/- with default stipulations, respectively.
      This death sentence has been confirmed by the High Court on a reference
      under Section 366 of Cr.P.C.

F            The brief facts of the case are as follows: the Appellant has been
      convicted for the murder of one Smt. Ruby by pouring acid on her. The
      Sessions Court awarded a death sentence under Section 302 of the IPC.
      In the incident the grandmother of the deceased Smt. Chandrakala (PW
      3) and one Raju - nephew (PW 7) of the deceased and Janu (PW 4)
      brother of the deceased were also injured. The Appellant has been
G     convicted for disfiguring and injuring these people by throwing acid under
      Section 326(A) of IPC.
            3. The Sessions Court imposed a fine on the Appellant payable to
      Smt. Chandrakala, Raju and Janu in the sum of Rs.10,000/- each. The
      High Court has enhanced the compensation and held that Janu was
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  YOGENDRA @ JOGENDRA SINGH v. STATE OF MADHYA                                  251
            PRADESH [S. A. BOBDE, J.]

entitled to be compensated a sum of Rs. 3 lac and Smt. Chandrakala              A
and Raju who were not so disfigured were held entitled to compensation
of Rs. 1.5 lac each.
       4. The deceased Ruby was married to one Mr. Sanjay Gupta and
had two issues from the wedlock. The Appellant coveted her and the
husband suspected an affair between his wife-the deceased and the               B
Appellant and harassed her accusing her of the same. The deceased
thereafter came to live with her maternal uncle. The Appellant pressurized
the deceased’s father (PW 8) for summoning her to Porsa and threatened
him with dire consequences if his demand was not fulfilled.
       On that ominous night in summer, the deceased and her family             C
members went to their respective rooms and retired for the night. The
doors were kept open since it was summer. There was light in the rooms
and the courtyard from some bulbs. The Appellant snuck into the room
of the deceased and warned her “though she doesn’t want to live with
him he is not going to let her live with anybody else”. The father of the
deceased,                                                                       D

       Dataram (PW 8) woke up on hearing this and saw the Appellant
running away after throwing acid on his daughter. The deceased started
screaming, whereupon other family members tried to save her, the
Appellant then, threw acid on the other members of the family, burning
and injuring all of them. In the attack, the deceased sustained burn injuries   E
to the extent of 90% all over her body while others also sustained burn
injuries.
       5. At this juncture, we would like to note that though we have
examined the entire record in detail, we do not consider it necessary to
deal with all the aspects of the evidence in this judgment. We are satisfied    F
that the Appellant has been rightly convicted for causing the death of the
deceased Smt. Ruby. All the circumstances of the case and particularly
the dying declaration of Smt. Ruby, unerringly point, to the Appellant as
the one who caused her death. There is no conjecture, surmise or
inference in the narration of the witnesses who saw the Appellant in the        G
act and were themselves the victim of his acid attack.
       6. The evidence, which commends itself as unimpeachable, is as
follows: the Appellant fled from the scene of the crime after committing
the crime at Porsa on 21.07.2013. He was arrested from Munchkund
Dholapur on 11.09.2013. The Investigating Officer has deposed that the
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252            SUPREME COURT REPORTS                          [2019] 1 S.C.R.


A     Appellant lead to the recovery of a beer bottle which is said to have
      been used for carrying the acid used in the attack. The Investigating
      Officer further deposed that the fingerprints of the Appellant and the
      fingerprints found on the beer bottle matched. The expert reported that
      the fingerprints found on the bottle and the fingerprints of the Appellant
      are of one and the same person.
B
             7. Mansingh Pawak (PW 10) was functioning as a Tehsildar /
      Executive Magistrate at Porsa. He was called by the Station House
      Officer, Porsa for recording the Dying Declaration of the deceased and
      the injured Janu. He clearly stated that the deceased was in a conscious
      state of mind while giving her statement and also provided her thumb
C     impression on the dying declaration. The deceased in her dying declaration
      stated that the appellant Jogendra Singh had burnt her by pouring acid
      on her, she further stated that the Appellant would harass her and abuse
      her on the phone. The statement of the injured Janu was recorded as a
      Dying Declaration believing that Janu might not survive. Nonetheless,
D     the statement is on record and has been duly proved.
             We are satisfied that the Dying Declaration of the deceased can
      be given highest probative value and offers a strong foundation for the
      conviction of the Appellant. It is not necessary to decide whether Janu’s
      Dying Declaration is admissible because he did not die. Since Janu has
E     deposed as PW4; we find that the evidence of Janu (PW4), Smt.
      Chandrakala (PW3) who is the grandmother of the deceased and who
      also has suffered injuries is consistent and reliable.
            All the three witnesses have deposed that the appellant threw
      acid on them as well. In fact the acid disfigured the face of Janu.
F            PW8, Dataram the father of the deceased deposed that as soon
      as he came out from his room on hearing the cries of the deceased he
      saw the appellant running away from the place. We find that the above
      evidence amply justifies the conviction of the accused beyond any
      reasonable doubt. The rest of the evidence is consistent, cogent and
G     reliable.
             8. However, the question that remains to be considered is whether
      there are special reasons as to why the appellant should be sentenced to
      death. The term ‘special reasons’ undoubtedly means reasons that are
      one of a special kind and not general reasons. In the present case there
      is one factor, which might warrant the imposition of the death sentence,
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     YOGENDRA @ JOGENDRA SINGH v. STATE OF MADHYA                               253
               PRADESH [S. A. BOBDE, J.]

as vehemently, urged by the learned counsel for the State. That reason          A
is that the Appellant committed this crime when he was out on bail in
another case wherein he has been convicted for murder and his sentence
has been upheld.
       It is undoubtedly difficult to ignore this fact but we find that it is
safer to consider the imposition of sentence based on the facts of this         B
particular case. Unquestionably, if there is a pattern discernible across
both the cases then a second conviction for murder would warrant the
imposition of a death sentence. But that does not appear to be so in the
present case. The earlier incident is totally unrelated to the circumstance
of this case. The appellant was charged along with co-accused one
Kiran Nurse for committing the murder of one Laxminarayan alias                 C
Laxman Singh in the intervening night of 27.07.1994 and 28.07.1994.
The present incident took place on 21.07.2013 and the last one almost
ten years before the present incident.
       9. In the case before us, the incident is related to the appellant
being disappointed in his relation with the deceased who he believed            D
deserted him. The circumstance of the case and particularly the choice
of acid do not disclose a cold-blooded plan to murder the deceased. Like
in many cases the intention seems to have been to severely injure or
disfigure the deceased; in this case we think the intention resulted into
an attack more severe than planned which then resulted in the death of          E
the deceased. It is possible that what was premeditated was an injury
and not death.
      10. We have not made the above observation in any way to condone
the acts of the appellant but merely to hold that there appear to be no
special reasons in the present case that warrants an imposition of a            F
death sentence on the Appellant. In Bachan Singh v. State of Punjab1
this Court held as follows: -
         “209. There are numerous other circumstances justifying the
         passing of the lighter sentence; as there are countervailing
         circumstances of aggravation. “We cannot obviously feed into           G
         a judicial computer all such situations since they are
         astrological imponderables in an imperfect and undulating
         society.” Nonetheless, it cannot be over-emphasised that the
         scope and concept of mitigating factors in the area of death
1
    (1980) 2 SCC 684
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254               SUPREME COURT REPORTS                         [2019] 1 S.C.R.


A              penalty must receive a liberal and expansive construction by
               the courts in accord with the sentencing policy writ large in
               Section 354(3). 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,
               show that in the past, courts have inflicted the extreme penalty
B
               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 discretion in so grave a matter.
               It is, therefore, imperative to voice the concern that courts,
               aided by the broad illustrative guide-lines indicated by us,
C              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 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
D
               through law’s instrumentality. That ought not to be done save
               in the rarest of rare cases when the alternative option is
               unquestionably foreclosed.”
              Following which, this Court in Machhi Singh v. State of
      Punjab2classified instances of rarest of rare cases where death sentence
E     can be justifiably imposed. In para 39, this Court laid down the following
      tests: -
               “39. In order to apply these guidelines inter alia the following
               questions may be asked and answered:

F              (a) Is there something uncommon about the crime which
               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
G              maximum weightage to the mitigating circumstances which
               speak in favour of the offender?”
             11. We find that there is no particular depravity or brutality in the
      acts of the Appellant that warrants a classification of this case as ‘rarest
      of the rare’.
      2
          (1983) 3 SCC 470
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  YOGENDRA @ JOGENDRA SINGH v. STATE OF MADHYA                                  255
            PRADESH [S. A. BOBDE, J.]

        12. Therefore, the sentence of death imposed by the High Court          A
is set aside and instead the appellant shall undergo imprisonment for life.
       13. The Appeals are accordingly allowed.


Devika Gujral                                                Appeals allowed.   B




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