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CHAILU versus STATE OF U.P.

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Chailu v. State Of U.P. - CRIMINAL APPEAL No. 6721 of 2006 [2007] RD-AH 14202 (18 August 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

(Reserved)

Crl.   Appeal   No. 6721    of 2006

 Chailu Vs. State of U.P.

AND

Reference No. 11 of 2006

........................

Hon'ble Amar Saran, J.

Hon'ble Shiv Shanker, J.

Delivered by Hon'ble Amar Saran J

 

This capital criminal appeal has been preferred by appellant Chailu against his conviction and sentence to imprisonment for life under section 376 IPC and to sentence of death under section 302 IPC by judgment and order  dated 11.10.2006 passed by the Additional Sessions/Special Judge, Court No. 21, Shahjahanpur. A reference no. 11 of 2006 for confirmation of death sentence against the appellant has also been received from the Sessions Judge.

We have heard learned counsel for the appellant, Sri K.N. Raha and the learned AGA for the State, and perused the judgment and record of this case.

The prosecution case was that the deceased, Km. Branti, aged about 13 years, had gone to collect the harvested tilli from her field on 16.10.1999 at 9 a.m., along with her mother, Smt. Leelawati. When they were returning back  near the field of Natthu Lal Pandit, they saw the appellant standing there armed with a countrymade pistol. He threatened Smt. Leelawati that if she raised any alarm then he would murder her. He thereafter toppled the bundle of tilli from the head of the deceased and pulled her into the sugarcane field of Natthu Lal Pandit. Meanwhile, Smt. Leelawati ran home raising an alarm and thereafter,  Mahesh and other villagers reached the field. Then they saw the appellant running away. The bundle of tilli was lying on the mend. When Smt. Leelawati and others proceeded into the field they saw the dead body of the deceased lying there and she had been throttled with her own dupatta. From her private parts blood was flowing. Then Smt. Leelawati sent Mahesh to call the informant Ram Naresh, brother of the deceased, who was at his arhat (wholesale shop) and disclosed the incident to him. Then Ram Naresh proceeded to the police station, got the report scribed by Rampal and lodged the same at PS Puwayan, which was 5 km. away on 16.10.1999 at 4 pm.

HM Rajpal Singh prepared the chik report (Ext. Ka-2) and also entered the information in the GD (Ext. Ka 3). S.I. Subhash Sharma, who was present at the police station, started investigation and proceeded to the spot where he got the inquest (Ext. Ka 4) conducted by Veer Singh . He obtained the dupatta, which was tied round the neck of the deceased, and prepared its recovery memo (Ext. Ka 6) which was scribed by SI Veer Singh. After preparing the relevant documents he sent the dead body for postmortem. The postmortem was conducted on 17.10.11999 at 3.50 p.m. at the District Women's Hospital, Shahjahanpur, by Dr. Rakesh Dubey. The doctor found the following antemortem injuries on the deceased:

1.Abraded contusion 10 x 7 cm on the right cheek involving upper and lower lid.

2.Abrasion 2.5 cm x 1 cm on the left angle of mouth.

3.Abrasion 0.5 x 0.5 cm on the left cheek 2 cm outside left nostril.

4.Abraded contusion with multiple small abrasions on left cheek and chin extending upto neck on right side of neck 18 x 8 cm.

5.Abrasion 2 cm x 1 cm . on the back of left elbow.

6.Abrasion 1.5 cm x 1 cm. on the back of right elbow.

The hymen of the deceased was lacerated and blood was present on both thighs. The brain, lungs, liver, spleen and kidneys were congested and the hyoid bone and tracheal rings were fractured and the larynx and trachea were congested. There was 150 cm of pasty food material present in the stomach. The slide of vaginal smear was prepared and was sent to the pathologist, District Hospital, Shahjahanpur. The cause of death was asphyxia due to antemortem strangulation. The deceased could have died at 9 am on 16.10.1999 and it was possible that she might have been raped prior to her murder. After recording the statements of the witnesses Ram Naresh and Smt. Leelawati, he prepared the site-plan (Ext. Ka 11). After the accused was arrested on 20.10.1999 (vide GD marked as Ext. Ka 12), the investigation was transferred on 1.11.1999 to another SI Krishna Baghel, PW 5, who submitted the charge-sheet (Ext. Ka 13) on 13.11.1999. Thereafter the case was committed and the charges framed against the appellant under sections 376 and 302 IPC on 29.2.2000, to which he pleaded not guilty and claimed to be tried.

        The prosecution has examined one eye-witness PW 2, Smt. Leelawati, who was the mother of the deceased Branti. PW 1 Ram Naresh, the brother of the deceased, was the informant of the case. He is not an eye-witness. PW 3 SI Subhash Sharma was the first investigating officer, who investigated the case. PW 4 Dr. Rakesh Dubey conducted the postmortem on the deceased. PW 5 SI Krishna Baghel was the second investigating officer who submitted the charge-sheet.

           PW 2 Smt. Leelawati has deposed that the deceased was 13 years old at the time of incident. On the date of incident this witness and the deceased had gone to collect tilli from their field. When they were returning, then Branti was carrying the tilli bundle on her head. When they reached near Natthu Lal's field, then the appellant Chailu arrived there. He was armed with a countrymade pistol. Pointing the same at this witness, he threatened that if she raised a hue and cry, then he would murder her. Then he grabbed the deceased Branti and dragged her in the sugar field. The bundle of tilli fell near the mend of the field. This witness ran towards the field. There she met her jeth's son Mahesh and disclosed the incident to him. After that Mahesh, this witness Smt. Leelawati and other villagers reached Natthu Lal's field. There they saw Chailu coming out of the field and running towards the West. When they entered the field, they say Branti's  dead body lying in the field. Her dupatta was tightly tied round her neck. Blood was coming out from her private parts and Branti was lying dead. Then Smt. Leelawati sent Mahesh to call her son Ram Naresh from his Puwayan arhat. When Ram Naresh arrived there, she narrated the whole story to him. Then he proceeded to the police station to lodge the report.

        PW 1 Ram Naresh  has deposed that at the time of incident his sister Branti was aged 13 years. He had gone to Puwayan arhat where he was employed in Munnu Lal's shop. Mahesh and others had reached the arhat and told him that his sister had been raped and murdered and that her dead body was lying in Natthu Lal's sugarcane field. On hearing this, he had come to his village, reached the spot where the dead body was lying. His mother had disclosed the incident to him which had taken place at 9 a.m. Thereafter he had lodged the report, as mentioned above. When he first saw the dead body he found that blood was coming out from her private parts and a dupatta was tied round her neck.

        The formal witness, investigating officer SI Subhash Sharma, PW 3, had conducted the investigation, as mentioned above. He reached the spot at 4.30 pm after the report was lodged at 4.00 pm. In the inquest prepared by Veer Singh the  injuries of the deceased are noted. Below the left knee, there was an old injury. On the left cheek there was a bleeding injury. There was a bluish contusion on the neck and blood was emanating from the private parts. Apart from this, he did not see any apparent injury on the deceased. He claimed to have recorded the statement of witness Mahesh under section 161 Cr.P.C. at his house. Apart from the statement of Smt. Leelawati, Mahesh, Lalram, Rampal etc. he had not recorded the statement of any other villagers. He had not prepared any recovery memo of the bundle of tilli. In order to ascertain the cause of white and blood marks on the clothes of the deceased, he had sent the same to the forensic laboratory. The clothes of the deceased were sealed along with the dead body. He did not show any crop standing in the field of the informant's father Ram Swaroop. He had not noted in the site-plan the place from where the witnesses had seen the accused running away. He did not remember whether he had interrogated the shop keeper in whose arhat informant used to work. He has not found any broken bangles of the deceased at the place of the incident. He also did not find any blood there. He did not remember whether there were any injuries on the hands and legs of the accused when he was arrested on 20.11.1999, or whether he had got the accused medically examined or not. He could not say why he did not get the medical examination of the accused done. He denied having visited the spot or having falsely implicated the appellant. The cloth in which the dupatta of the deceased had been kept in the trial court was in a tattered and ruined condition. He stated that the cloth which was recovered was 6 fingers long and 3 fingers broad. The report on the slide of the vaginal smear, which had been sent to the Women's Hospital, Bareilly, on 21.10.1999, mentioned that sperms were seen.

       PW 4 Dr. Rakesh Dubey, who conducted the postmortem, as mentioned above, admitted in his cross-examination that rigor mortis had passed from the body at the time of the postmortem and that the same passes off within 36 hours in the month of October. But he clarified that the stage when it would pass off would depend on temperature and whether the dead body had been kept on ice or not. It was possible to take the time of death back or forward by 6 hours. It was possible that the death of the deceased had taken place on 15/16.10.1999 at about 4 am. Injury no. 4 could have been the result of pressing with the hands and scratching by the nails. The neck injury could not have been caused by the dupatta which was 6 fingers long and 3 fingers broad. On the inner sides of both the thighs, there was congealed blood. The cause of death of the deceased could have been injury no. 4.

      PW 5 SI Krishna Baghel, as mentioned above, has submitted the charge-sheet. He was not cross-examined.

      In his statement under section 313 Cr.P.C. the appellant had stated that some unknown persons had murdered the deceased and thrown the dead body near Natthu Lal's sugarcane field. When the body was found the next morning, then on the instigation of Rampal and Ram Naresh and other villagers the report of rape and murder had been falsely lodged against the appellant. He was staying for 4 or 5 months prior to the incident in village Bara Gaon where he worked as a labourer in Balbir Singh's jhala.

It was argued by the learned counsel for the appellant that it was impossible for the deceased to have been murdered by a dupatta which was described as 6 fingers long and 3 fingers broad by the investigating officer, when the doctor has described the said injury on the neck to be 18 cm x 8 cm. Only one witness, Smt. Leelawati, who was partisan being the mother of the deceased has come forward to support the prosecution case and no other witness has been examined. The report was lodged with a delay at 4 pm. No attempt was made to save Km. Branti when her mother was present at the spot. Nor did the witnesses, who arrived at the place of incident from the village on the alarm of Smt. Leelawati try to apprehend the accused when he was running away. No broken bangles were found which negates the allegations of rape. There was no reason for the deceased to have gone to collect the tilli and not her 22 years old brother when PW 1 admitted in her cross-examination that she had not gone to the field for collecting the tilli.  There was no recovery memo made of the bundle of tilli by the investigating officer. There is discrepancy in timings in the evidence of the witnesses.

Learned AGA, on the other hand, has contended that the charge against the appellant under sections 376 and 302 IPC stands proved. There is no unreasonable delay in lodging of the FIR which has been proved in accordance with law. It was not necessary that any resistance should have been offered by the mother of the deceased at the time of the deceased as the appellant was armed with a country made pistol. There is no reasonable ground for false implication of the appellant. The place and time of the incident stood established.

So far as the contention of the learned counsel for the appellant that the dupatta had been described as 6 fingers long and 3 fingers broad by the investigating officer, which could not be more than 9 cm x 5 cm, obviously, this seems to be the result of some confusion in the reply of the investigating officer and it is possible that he is referring to the length and breadth of the dupatta by taking the fingers lengthwise and not breadthwise. Also some clarification ought to have been sought from the investigating officer and the eye-witnesses PW, Smt. Leelawati, and informant Ram Naresh as to how the dupatta which has been described as so small, could be tied around the neck of the deceased.

In this connection it has clearly been held in State of U.P. v. Nahar Singh, (1998) 3 SCC 561 that without questioning a witness specifically about an omission or a contradiction or a discrepancy in his testimony the accused cannot take any advantage of such a contradiction. The following passage from paragraphs 13 and 14 of State of U.P. v. Nahar Singh, (1998) 3 SCC 561, at page 567 may be usefully perused:

"13. It may be noted here that that part of the statement of PW 1 was not cross-examined by the accused. In the absence of cross-examination on the explanation of delay, the evidence of PW 1 remained unchallenged and ought to have been believed by the High Court. Section 138 of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by allowing a witness to be questioned:

(1) to test his veracity,

(2) to discover who he is and what is his position in life, or

(3) to shake his credit by injuring his character, although the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.

14. The oft-quoted observation of Lord Herschell, L.C. in Browne v. Dunn, (1893) 6 The Reports 67, clearly elucidates the principle underlying those provisions. It reads thus:

"I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses."  (Emphasis added)

It is noteworthy that in the inquest, it is shown that the dupatta was tied round the neck of the deceased. This conclusively demolishes the argument of the learned counsel that the injury on the neck could not have been caused by the small cloth which has been described as 6 fingers long and 3 fingers broad by the investigating officer.

It is also not very material that only one witness, Smt. Leelawati, the mother of the deceased, has come forward to support the prosecution case and no other witness has been examined. Nowadays this is an unfortunate trend that independent persons refuse to come and give evidence in court as they do not want to get entangled into the enmity between the parties and that their conscience is not pricked even if they witness a heinous crime being committed, which they treat as a civil dispute between the parties. We find absolutely no reason for the mother of the deceased, Smt. Leelawati, to have named the appellant and to have spared the real offender if the appellant had nothing to do with the crime.

There is also no substance in the argument of the learned counsel for the appellant as to why Smt. Leelawati did not try to save Km. Branti when she was apprehended by the appellant to commit rape on her. The evidence has come from Smt. Leelawati that the appellant was brandishing a countrymade pistol with which he was threatening her and forbidding her from raising an alarm. If the witness failed to intervene in these circumstances, it cannot be said that she was not present at the spot. Likewise, it is of no consequence that other witnesses, who had arrived at the spot on her alarm, did not pursue or attempt to apprehend the appellant as he was running away. As we have observed that the outsiders are notoriously reluctant to involve themselves in the affairs of the other persons or to render any help. It would be apt in this connection to place reliance on the following observations of the apex Court reported in AIR 1988 SUPREME COURT 696 "Appabhai v. State of Gujarat"

"11. In the light of these principles, we may now consider the first contention urged by the learned counsel for the appellants. The contention relates to the failure of the prosecution to examine independent witnesses. The High Court has examined this contention but did not find any infirmity in the investigation. It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether -in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The Court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner. In Rana Pratap v. State of Haryana (1983) 3 SCC 327 : (AIR 1983 SC 680) O. Chinnappa Reddy J. speaking for this Court succinctly set out what might be the behaviour of different persons witnessing the same incident. The learned Judge observed (at p. 330) (of SCC : (at 682 of AIR) : "Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way."

12. There maybe some of the reactions. There may be still more. Even a man prowess may become pusillanimous by witnessing a serious crime. In this case, the courts below, in our opinion, have taken into consideration of all those aspects and rightly did not insist upon the evidence from other independent witnesses. The prosecution case cannot be doubted or discarded for not examining strangers at the bus stand who might have also witnessed the crime. We, therefore, reject the first contention urged for the appellants."

We also find that there is no significant delay in this report. Admittedly, after the incident the informant Ram Naresh, who was working at an arhat in Puwayan,  was called from Puwayan. Then he returned and visited the spot where the dead body of his sister was lying. He would have obtained all the details about the incident in question, and only then he would have proceeded to the police station to lodge the report.

The absence of broken bangles also does not negate the allegation of  rape. Admittedly, blood was seen issuing forth from the region of the private parts of the deceased. As per the postmortem report, the hymen was lacerated and blood was also present on the inner sides of both the thighs. There was sufficient numbers of injuries (abrasions and abraded contusions) on the cheek, mouth, elbows etc. of the deceased which are only consistent with a case of rape. The vaginal smear also indicated the presence of spermatozoa. Therefore, the allegation of rape is clinchingly established in this case.

The argument of the learned counsel for the appellant as to why the 22 year old brother, PW 1 Ram Naresh, had not gone to collect the tilli and the deceased had gone there, is devoid of substance because admittedly the brother was working in an arhat in Puwayan and clearly Km. Branti had gone to collect the harvested tilli from the field. If the investigating  officer has been a little lax in preparing the recovery memo of the bundle of tilli, which was lying there, the fault lies on the part of the investigating officer and for such a lapse in the investigation the entire prosecution case cannot be discarded. There is no reason to doubt that the incident took place at the time and place where it is alleged.

So far as the discrepancies in the timings are concerned, it may be noted that the witnesses were from a backward section of the society and were virtually illiterate and some minor discrepancies about when the informant obtained the information, or when he reached the home and went to the place of incident, are very natural. Such minor confusions about the timings can be expected from the rustic villagers and the prosecution case cannot be discarded for these trivial discrepancies. As already pointed out, there is absolutely no reasonable ground for false implication of the appellant.

In this view of the matter, we think that the prosecution  has been successful in establishing the case against the appellant and the appellant has been rightly convicted for the offences under sections 376 and 302 IPC by the trial court. We also think that the sentence of imprisonment for life under section 376 IPC awarded by the trial Judge is not excessive in the circumstances and facts of the case.

However, so far as the sentence of death awarded under section 302 IPC is concerned, we do not think that this was a rare of the rarest case where a sentence of death was the only option and the option of the alternative sentence of imprisonment for life was unquestionably foreclosed. The reason for our view is that we have perforce  to rely on the testimony of the solitary witness, Smt. Leelawati. The other witnesses, who are said to have arrived at the spot after she went to the village seeking help, have not been produced for supporting the prosecution case. No medical examination of the accused was also done which might have provided some corroborative material of the  involvement of the accused. In such circumstances though we think that the evidence is sufficient to establish the complicity of the accused in this incident, and the Court can safely award a sentence of life imprisonment, however this case may not be that rarest of rare case where a sentence of death ought to be the only appropriate penalty. In  parallel circumstances in the case of  Dudh Nath Pandey Vs. State of U.P., (1981)2 SCC 166, where part of allegations of the case were that the appellant had fired a shot at the deceased Pappoo, while he was driving his scooter. In such circumstances the deceased would have received some injury due to the scooter falling down and the scooter would also have been damaged slightly, but there was no injury on the person of Pappoo except an abrasion on the left side of the chest which was caused by the gun shot, neither was the scooter damaged, nor was it lying on the road, but it was standing. In the circumstances the Court observed that "if the witness on whose evidence the life of an accused hangs in the balance, do not choose to reveal the whole truth, the Court, while dealing with the question of sentence, has to step in interstitially and take into account all reasonable possibilities, having regard to the normal and natural course of human affairs. Since a part of the crucial event has been screened from the court's scrutiny and the possibility of an altercation between the appellant and the deceased cannot reasonably be excluded, we consider it unsafe to sentence the appellant to the extreme penalty." On this ground the Court substituted the sentence of death with a sentence of imprisonment for life.  

In Dudh Nath Pandey (Supra)  the appellant was a motor-car driver and he had developed a fancy for one of the sisters of the deceased and he murdered him because the deceased was trying to wean away his sister from the influence of the accused.  The Court noted that on the previous evening the deceased had retorted that "you are a man of two paise's worth. How can you dare to marry my sister. I will break you hands and feet and the said dispute assumed the proportions of a feud over social status." The Court observed that mental turmoil and the sense of being socially wronged through which the accused was passing cannot be overlooked while awarding the sentence. In all those circumstances the Court had decided to substitute the appellant's sentence of death which had been confirmed by the High Court with a sentence of imprisonment for life.  

In the case of Suresh Vs. State of U.P. (1981)2 SCC 569, the principal evidence of the five year old son of the deceased was recorded 20 days after the incident.  The Apex Court having noted the same as well as the fact that the sudden impulse of sex or theft made the accused momentarily insensible, held that death sentence was not warranted, and such evidence "was not safe enough for putting out a life." In that connection the Apex Court has aptly observed in paragraph 11: "Children, in the first place, mix up what they see with what they like to imagine to have seen and besides, a little tutoring is inevitable in their case in order to lend coherence and consistency to their disjointed thoughts which tend to stray. The extreme sentence cannot seek its main support from evidence of this kind which, even if true, is not safe enough to act upon for putting out a life." (Emphasis added).

We therefore think that a sentence of imprisonment for life under section 302 IPC would be more appropriate in this case. However we make it clear that the sentence of life imprisonment awarded to Chailu will run for a minimum actual period of imprisonment of 20 years, and only thereafter the State may consider his case for premature release or commutation etc. under its norms for remission and commutation of sentence. Such a direction has been issued by the apex Court in Prakash Dhaval Khairnar (Patil) v. State of Maharashtra, (2002) 2 SCC 35 and in Ram Anup Singh v. State of Bihar, (2002) 6 SCC 686. We respectfully follow the same. In this connection it would be useful to quote paragraphs 22, 23 and 24 of Prakash Dhawal Khairnar (Patil) v. State of Maharashtra,(2002) 2 SCC 35, at page 48  in extenso:

"22. Learned counsel for the appellant however submitted that this would not be a rarest of rare case so as to impose the death penalty. He submitted that because of long-standing dispute for partition of the properties, the incident occurred wherein the act was committed under total desperation. Further, he submitted that the circumstantial evidence relied upon by the Court, even if are sufficient for convicting the accused, it is not safe enough to act upon such circumstances for putting out a life.

23. From the record, it is revealed that the accused Prakash Patil did not have any criminal tendency. He was working as Water Analyser (Sr. Scientific Assistant). The facts and circumstances of the case reveal that he killed his brother, brother's wife and children because of frustration, as he was not partitioning the alleged joint property. No doubt, it is heinous and brutal crime but at the same time it will be difficult to hold that it is rarest of rare case. It is also difficult to hold that appellant is a menace to the society and there is no reason to believe that he 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. (Re: Om Prakash v. State of Haryana, (1999)3 SCC 19). Even A-2 in his confessional statement has stated that after the commission of the offence, he found tears in the eyes of his father, A-1. This may indicate that A-1 may repent for the rest of his life for commission of such ghastly act. However, at this stage, for imposing appropriate punishment, we would refer to the decision rendered by this Court in Shri Bhagwan v. State of Rajasthan (2001)6 SCC 296 wherein while reducing the death sentence to imprisonment for life, the Court considered Section 57 IPC and referred to the following observations in Dalbir Singh v. State of Punjab (1979)3 SCC 745: (SCC p.753, para 14)

"14. The sentences of death in the present appeal are liable to be reduced to life imprisonment. We may add a footnote to the ruling in Rajendra Prasad v. State of U.P. (1979) 3 SCC 646 Taking the cue from the English legislation on abolition, we may suggest that life imprisonment which strictly means imprisonment for the whole of the man's life, but in practice amounts to incarceration for a period between 10 and 14 years may, at the option of the convicting court, be subject to the condition that the sentence of imprisonment shall last as long as life lasts where there are exceptional indications of murderous recidivism and the community cannot run the risk of the convict being at large. This takes care of judicial apprehensions that unless physically liquidated the culprit may at some remote time repeat murder." 24. The Court also observed that though under the relevant Rules a sentence for imprisonment for life is equated with a definite period of 20 years, there is no indefeasible right of such prisoner to be unconditionally released on the expiry of such particular term, including remissions and that is only for the purpose of working out the remissions that the said sentence is equated with definite period and not for any other purpose. The Court, thereafter, directed that the accused shall not be released from prison unless he had served out at least 20 years of imprisonment including the period already undergone by the appellant. In this case also, considering the facts and circumstances, we set aside the death sentence and direct that for murders committed by him, he shall suffer imprisonment for life but he shall not be released unless he had served out at least 20 years of imprisonment including the period already undergone by him." (Emphasis added).

In another Capital Criminal Appeal, Babloo @ Dori Lal v. State of U.P. [reported in 2006(55) ACC 920] in which one of us (Hon'ble Amar Saran J) was a member we have similarly reduced the sentence of death to a sentence of imprisonment for life, with the stipulation that the sentence of the accused will not be commuted or remitted by the State unless the appellant Babloo had undergone an actual sentence of twenty years.

We therefore dispose of the present appeal as follows. The appeal preferred by the appellant Chailu is dismissed subject to the modification that that the sentence of death awarded to the appellant under section 302 IPC is reduced to a sentence of imprisonment for life, with the condition that the appellant Chailu will not be released unless he has undergone an actual term of twenty years imprisonment. Only thereafter, if at all, the State may consider his case for premature release or commutation under its norms for remission and commutation of sentence. The conviction and sentence of the appellant to imprisonment for life under section 376 IPC is upheld. Both the sentences shall run concurrently. The reference for confirmation of the death sentence to Chailu is rejected.

With the above modification the appeal is dismissed.  

Dated: August 18, 2007.

AS-146/sks.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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