Manoj & Ors. vs State of Madhya Pradesh

Criminal Trial – Death Sentence – When to be awarded – Discussed – A two-step process has to be followed to determine whether a case deserves death sentence – Firstly, that the case belongs to the ‘rarest of rare’ category, and secondly, that the option of life imprisonment would simply not suffice – For the first step, the aggravating and mitigating circumstances would have to be identified and considered equally – For the second, the court has to consider whether the alternative of life imprisonment was unquestionable foreclosed as the sentencing aim of reformation was unachievable, for which the State must provide material. Code of Criminal Procedure, 1973 – Test Identification Parade – TIPs are meant to test witness veracity and their capability to identify unknown persons – TIPs should be conducted at the earliest possible time to eliminate the chance of accused being shown to witnesses before the identification parade, which might otherwise affect such witnesses’ memory – No provision of law enables an accused to claim TIP as a matter of right – Delay or failure in holding TIP ipso facto does not render the evidence inadmissible or unacceptable, however it affects the credibility and weight attached to such identification.

Evidence Act, 1872 – Circumstantial Evidence – Principles applicable to appreciation of evidence – The correct approach of courts trying criminal cases involving circumstantial evidence should be that the circumstances alleged, be fully established – All the facts so established should be consistent only with hypothesis of the guilt of the accused – Circumstances should be conclusive and of such tendency that they should be such as to exclude every hypothesis but the one proposed to be proved.

Criminal Trial – Practice and Procedures – Omission of prosecution witness to state a fact – Effect of: The omission of some of the prosecution witnesses to mention a particular fact, or corroborate something, which is deposed to by other witnesses does not ipso facto favour an accused – However, more important is whether the omission to depose about a fact is so fundamental that the prosecution version becomes shaky and incredulous. Code of Criminal Procedure, 1973 – s. 24 – Role of Public Prosecutor in Criminal Trial – Public prosecutor occupies a statutory office of high regard – They are not part of the investigating agency, rather an independent statutory authority who serve as officers to the court – The role of the public prosecutor is intrinsically dedicated to conducting a fair trial and not for a ‘thirst to reach the case in conviction’.

Code of Criminal Procedure, 1973 – ss.172, 173 – Maintenance of case diary mandatory – Police have the power to investigate freely and fairly, in the course of which, it is mandatory to maintain a diary where the day-to-day proceedings are to be recorded with specific mention of time of events, places visited, departure and reporting back, statements recorded, etc – Criminal Court is empowered to summon these diaries u/s 172(2) for purpose of inquiry or trial, s. 173(3) makes it clear that the accused cannot claim any right to peruse them, unless the police themselves, rely on it to refresh their memory or if the court uses it for contradicting the testimony of the police officers.

Criminal Trial – Fundamental canons of criminal jurisprudence founded on Arts. 20 and 21 of the Constitution require not just the investigating agency but also courts in their own independent field, to ensure that investigation is fair and does not hamper the individual’s freedom, except in accordance with law, i.e., ensure adherence to the rule of law.

Criminal Trial – Practical guidelines to collect mitigating circumstances – Trial Court must elicit information from the accused and the State both – The State must for an offence carrying capital punishment - at the appropriate stage, produce material which is preferably collected beforehand, before the Sessions Court disclosing psychiatric and psychological evaluation of the accused – This will help establish proximity to the accused person’s frame of mind – The State must in a time-bound manner collect additional information pertaining to the accused –Information regarding the accused’s jail conduct and behaviour, activities the accused involved themselves in, and other related details should be called for in the form of a report from the relevant jail authorities. Code of Criminal Procedure, 1973 – Sentencing – An effective sentencing hearing to the accused at the relevant stage is a right under s.235(2).

Partly allowing the appeals, the Court

HELD:1. The goal of reformation is ideal, and what society must strive towards – there are many references to it peppered in this court’s jurisprudence across the decades – but what is lacking is a concrete framework that can measure and evaluate it. Unfortunately, this is mirrored by the failure to implement prison reforms of a meaningful kind, which has left the process of incarceration and prisons in general, to be a space of limited potential for systemic reformation. The goal of reformative punishment requires systems that actively enable reformation and rehabilitation, as a result of nuanced policy making. As a small step to correct these skewed results and facilitate better evaluation of whether there is a possibility for the accused to be reformed (beyond vague references to conduct, family background, etc.), it is necessary to frame practical guidelines for the courts to adopt and implement, till the legislature and executive, formulate a coherent framework through legislation. These guidelines may also offer guidance or ideas, that such a legislative framework could benefit from, to systematically collect and evaluate information on mitigating circumstances. [Para 212] [573-E-H]

2.1. There is urgent need to ensure that mitigating circumstances are considered at the trial stage, to avoid slipping into a retributive response to the brutality of the crime, as is noticeably the situation in a majority of cases reaching the appellate stage. To do this, the trial court must elicit information from the accused and the state, both. The state, must - for an offence carrying capital punishment - at the appropriate stage, produce material which is preferably collected beforehand, before the Sessions Court disclosing psychiatric and psychological evaluation of the accused. This will help establish proximity (in terms of timeline), to the accused person’s frame of mind (or mental illness, if any) at the time of committing the crime and offer guidance on mitigating factors (1), (5), (6) and (7) spelled out in Bachan Singh. Even for the other factors of (3) and (4)- an onus placed squarely on the State- conducting this form of psychiatric and psychological evaluation close on the heels of commission of the offence, will provide a baseline for the appellate courts to use for comparison, i.e., to evaluate the progress of the accused towards reformation, achieved during the incarceration period. [Paras 213 & 214][574-B-E]

2.2. The State must in a time-bound manner, collect additional information pertaining to the accused. An illustrative, but not exhaustive list is as follows: a) Age; b) Early family background (siblings, protection of parents, any history of violence or neglect); c) Present family background (surviving family members, whether married, has children, etc.; d) Type and level of education; e) Socio-economic background (including conditions of poverty or deprivation, if any.); f) Criminal antecedents (details of offence and whether convicted, sentence served, if any); g) Income and the kind of employment (whether none, or temporary or permanent etc); h) Other factors such as history of unstable social behaviour, or mental or psychological ailment(s), alienation of the individual (with reasons, if any) etc. This information should mandatorily be available to the trial court, at the sentencing stage. The accused too, should be given the same opportunity to produce evidence in rebuttal, towards establishing all mitigating circumstances. [Para 215][574-E-H; 575-A-C]

2.3 Information regarding the accused’s jail conduct and behaviour, work done (if any), activities the accused has involved themselves in, and other related details should be called for in the form of a report from the relevant jail authorities (i.e., probation and welfare officer, superintendent of jail, etc.). If the appeal is heard after a long hiatus from the trial court’s conviction, or High Court’s confirmation, as the case may be – a fresh report (rather than the one used by the previous court) from the jail authorities is recommended, for an more exact and complete understanding of the contemporaneous progress made by the accused, in the time elapsed. The jail authorities must also include a fresh psychiatric and psychological report which will further evidence the reformative progress, and reveal post-conviction mental illness, if any. [Para 216][575-C-E]

3.1. In the instant case, there can be no doubt that the crime committed by the three accused was brutal, and grotesque. The three defenceless victims were women of different age groups (22, 46, 76 years) who were caught off-guard and severely physically assaulted, resulting in their death, in the safety and comfort of their own home. To have killed three generations of women from the family of PW-1, is without a doubt, grotesque. The manner of the offence was also vicious and pitiless – Ashlesha and Rohini, were stabbed repeatedly to their death, while Megha was shot point blank in the face. The post-mortem (Ex. P44) reflects that the stab wounds were extensive – ranging across the bodies of the victim. The extensive bleeding at the crime scene further reflects cruel and inhumane manner of attack, against the three women. The crime in itself, could no doubt be characterised as “extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community” as defined in Machhi Singh. These are the aggravating circumstances. On an application of the Bachan Singh test (as clarified and explained, in numerous decisions), however, the mitigating circumstances need to be considered (and that too, liberally and expansively). [Para 218 & 219][576-C-G]

3.2. It is unfortunate to note that both the trial Court, and High Court, failed to provide an effective sentencing hearing to the accused, at the relevant stage, which is a right under Section 235(2) CrPC recognised by this court in several cases. In fact, it was argued by the accused that the trial court in contravention of this court’s judgments, had proceeded to hear on sentencing almost immediately, depriving the accused of the opportunity to put forth their case for a less stringent sentence. The trial court order on sentencing, records in passing - the plea of ‘young age’ and ‘socio-economic factors’ as mitigating circumstances, but reflects, at best, a mechanical consideration of the same. Swayed by the brutality of the crime and “shock of the collective and judicial conscience”, the High Court affirmed imposition of the death penalty solely on the basis of the aggravating circumstances of the crime, with negligible consideration of mitigating circumstances of the criminal. This is in direct contravention of Bachan Singh. [Para 223][578-B-E]

3.3. The crime that the appellants have been held guilty of, is heinous; its execution was vicious and cruel, by any stretch of imagination. The deception practised by the appellants, in entering the flat, and, when encountering resistance, attacking the three women, was calculated and ruthless. The repeated stabbings of two of the deceased, almost in a frenzy, on the one hand, and the defenceless state of the victims, on the other, highlights that the accused were willing to go ahead with their plans (of robbing) after eliminating the women of three generations. No doubt, two of the victims appear to have put up resistance, if one looks at the stab wounds inflicted all over their bodies, including on their arms and faces. They were unarmed and weak. At the same time, the young age of the accused at the time of the incident (35, 20,

22 respectively) and lack of criminal antecedents (except in the case of Manoj, who was allegedly involved in a case of petty theft) cannot be lost sight of. Further, the prosecution case is silent on any real motive that may have instigated or moved the three accused to have pre-planned for the commission of murder – other than robbery, itself. This coupled with the fact that Rahul was shot in his leg during the commission of the crime, indicates that perhaps it is reasonable to assume that they were amateurs in a robbing-gone-wrong situation, who were not intent on taking the lives of these three women. One can surmise that having ventured to rob, perhaps they did not contemplate the kind of resistance that was put up by the victims, which led them to act the way they did, to continue with their plan, and ensure that the victims did not survive to tell the tale. [Paras 224 & 225][578-D-F; 579-A-D]

3.4. The reports received from the Superintendent of Jail reflect that each of the three accused, have a record of overall good conduct in prison and display inclination to reform. It is evident that they have already, while in prison, taken steps towards bettering their lives and of those around them, which coupled with their young age unequivocally demonstrates that there is in fact, a probability of reform. On consideration of all the circumstances overall, it is found that the option of life imprisonment is certainly not foreclosed. Imposition of death sentence would be unwarranted in the present case. It would be appropriate and in the overall interests of justice to commute the death sentence of all three accused, to life imprisonment for a minimum term of 25 years. [Para 226 & 228][579-D-E; 580-AB] Bachan Singh v. State of Punjab (1980) 2 SCC 684; Machhi Singh and Others v. State of Punjab, [1983] SCR 3 413; Sharad Birdichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88; Anil v. State of Maharashtra (2014) 4 SCC 69 : [2014]

3 SCR 34 and Rajesh Kumar v. State (NCT of Delhi) (2011) 13 SCC 706 – relied on.

Umesh Tukaram Padwal & Anr. v. State of Maharashtra (2019) 8 SCC 567; Lal Singh and others v. State of U.P 2003 (12) SCC 554; Muthuswami v. State of Madras AIR 1954 SC 4; Mohammed Abdul Hafeez v. State of AP (1983) 1 SCC 143; Mohd. Aman & Anr. v. State of Rajastha (1997) 10 SCC 44; Chandran @ Surendran & Anr. v. State of Kerala (1991) Supp (1) SCC 39; Noor Aga v.State of Punjab (2008) 16 SCC 417 : [2008] 10 SCR 379; Chunthuram v. State of Chhattisgarh (2020)

10 SCC 733 : [2020] 8 SCR 1071; Reena Hazarika v. State of Assam (2019) 13 SCC 289 : [2018]

13 SCR 1108; Suresh Sakharamb Nangare v. State of Maharashtra (2012) 9 SCC 249 : [2012] 7 SCR 1186; State of Andhra Pradesh v.Dr. M.V. Ramana Reddy & Ors (1991) 4 SCC 536 : [1991] 3 SCR 600; Rajesh Govind Jagesha v. State of Maharashtra (1999) 8 SCC

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(6) SCALE 72; Hari Om v. State of Uttar Pradesh (2021)

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Kamleshwar Paswan v. UT Chandigarh (2011) 11 SCC

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