Review Jurisdiction: Scope of review in criminal proceedings – Held: In criminal proceedings, the scope of review jurisdiction of Supreme Court is guided by Art.137 of the Constitution as well as Or.XL r.10 of the Supreme Court Rules, 1966, which permit the Court to correct miscarriage of justice caused by an error apparent on the face of the record – Supreme Court cannot re-appreciate evidence in its entirety in the exercise of its review jurisdiction. Penal Code, 1860: s.302 – Circumstantial evidence – Conviction by courts below and upheld by Supreme Court – Review petition – Held: There is no ground for interference with any finding of the Courts with respect to the appreciation of the testimony relating to the “last seen” circumstance, the extra judicial confession and the motive of the petitioner – Chain of circumstances established the guilt of the petitioner beyond reasonable doubt. Sentence/Sentencing: Death sentence – Sentencing in case of circumstantial evidence – Though it may be a relevant consideration in sentencing that the evidence in a given case is circumstantial in nature, there is no bar on the award of the death sentence in cases based upon such evidence – In such a situation, it is upto the Court to determine whether the accused may be sentenced to death upon the strength of circumstantial evidence, given the peculiar facts and circumstances of each case, while assessing all the relevant aggravating circumstances of the crime and mitigating circumstances of the accused.
Sentence/Sentencing: Death sentence – Commutation of sentence, prayed – Held: While arriving at the conclusion that the instant case fell into the category of the rarest of rare cases, the Court took into account the premeditated nature of the crime, and its brutal and barbaric nature, observing that the same was sufficient to shock the collective conscience of the society – The Court also opined that the Petitioner was a menace to society and could not be reformed, and that lesser punishment would expose society to peril at his hands – However, the nature of the circumstantial evidence in this case amounts to a mitigating circumstance significant enough to tilt the balance of aggravating and mitigating circumstances in the Petitioner’s favour – Moreover, it is also possible that the incorrect observations pertaining to deceased’s facial injuries further led the Court to conclude in favour of imposing the death sentence on the Petitioner – Thus, there was a reasonable probability that this Court would have set aside the sentence of death in appeal, since the only surviving evidence against the Petitioner pertained to his motive to commit the crime, the circumstance of “last seen” and a solitary extra-judicial confession – In other words, it cannot be said that the punishment of life imprisonment is unquestionably foreclosed in the instant case, in spite of the gravity and barbarity of the offence – The award of the death penalty in the instant case, based on the evidence on record is not upheld – A sentence of life imprisonment simpliciter would, however, be inadequate, given the gruesome nature of the offence, and the menace posed to society at large by the Petitioner, as evinced by the conduct of the Petitioner in jail – The conduct of the Petitioner in jail was unsatisfactory, and that he was becoming aggressive and indulging in illegal activities in prison, intentionally abusing prisoners and prison staff and provoking fights with other prisoners – It is appropriate to impose a restriction on the Petitioner’s right to remission – Petitioner shall, therefore, remain in prison for the remainder of his life. Partly allowing the Review Petitions, the Court HELD: 1. It is well-settled that review proceedings cannot be treated as an appeal in disguise. Particularly, in criminal proceedings, the scope of review jurisdiction of this Court is guided by Article 137 of the Indian Constitution as well as Order XL Rule 10 of the Supreme Court Rules, 1966, which permit the Court to correct miscarriage of justice caused by an error apparent on the face of the record. This Court cannot re-appreciate evidence in its entirety in the exercise of its review jurisdiction. Furthermore, the reference to “additional grounds” in the observations in the order dated 31.10.2018 in Md. Arif @ Ashfaq case pertains to additional grounds which could have been raised by the review petitioner before this Court in the exercise of its review jurisdiction and had not been raised when the review petition had originally been filed before this Court. In fact, a reading of the entire order reveals that the Court at that juncture was dealing with a criminal miscellaneous application seeking that the scope of the permission granted by this Court in Md. Arif @ Ashfaq v. The Registrar, Supreme Court to re-hear review petitions dismissed by circulation be extended to also include cases where a curative petition had been dismissed by circulation after the dismissal of review, since this category of cases had been specifically denied the relief of re-hearing by the Court. With particular regard for the fact that the petitioner therein was the only person to be denied an open Court hearing due to this limitation, and in light of the limited grounds on which a curative petition could be filed, which meant that the rejection of a review petition could never be completely reconsidered in curative jurisdiction, this Court in its order dated 31.10.2018 extended the relief of re-hearing to dismissed curative petitions as well. It was while doing so that the observations that were relied upon by the Petitioner came to be passed. In view of this, the contention raised for the Petitioner that the above observations have created a window for this Court to re-appreciate the entire evidence on record while hearing review petitions is rejected. [Paras 6.26.5] [951-H; 952-A-B; 953-A-F]
2. The entire case of the prosecution is built upon circumstantial evidence. This Court, in appeal, affirmed the findings of the Courts below regarding the conviction of the Petitioner. There is no ground for interference with any finding of the Courts with respect to the appreciation of the testimony relating to the “last seen” circumstance, the extra judicial confession made to PW-9, and the motive of the Petitioner. However, crucially, this Court, in appeal, also relied upon the deposition of PW-6 with respect to the extra-judicial confession made to her, inasmuch as she deposed in her examination-inchief that the Petitioner had confessed to her over a telephonic call that he had murdered the deceased. However, the Court omitted to appreciate that PW-6 had admitted in her cross-examination that the Petitioner had not told her that he had murdered the deceased, which in fact was a reason for the Trial Court to not rely on her testimony. This Court committed an error apparent on the face of the record in placing reliance upon the extra judicial confession allegedly made by the Petitioner before PW-6, by noting that such evidence had been relied upon by the Courts below, when in fact it had been rightly rejected by the Trial Court. [Paras 10, 14, 14.1] [955-F; 956-F-H; 957-A-B]
3.1 This Court, in determining the correctness of the quantum of sentence assessed by the High Court, while noting that the offence appeared to be premeditated and well-planned, erroneously observed that the Petitioner had crushed the face of the deceased the deceased woman to avoid identification. This observation is unsupported by the medical evidence on record. PW-4, the doctor who conducted the post-mortem on the body of the deceased woman, only deposed to the presence of contused lacerated wounds on her face. There is no evidence to the effect that her face was marred beyond recognition or that there appeared to be any attempt to do so. This is yet another error apparent on the face of the record. [Para 15] [957-C-D]
3.2 The evidence relied upon in the instant case is purely circumstantial, including the motive to commit the offence, the circumstance of the deceased being last seen with the Petitioner, and two extra-judicial confessions. Thus, keeping aside the extrajudicial confession to PW-6, it is evident that evidence as to the circumstance of motive, the “last seen” circumstance as well as one extra-judicial confession still survive. The chain of circumstances establishing the guilt of the Petitioner beyond reasonable doubt is not materially affected even if one of the two extra-judicial confessions is discarded. Thus, this Court rightly affirmed the conviction of the Petitioner under Sections 302 and 201, IPC, and there is no cause to interfere with such finding of guilt in the exercise of review jurisdiction. [Para 17] [957-G-H; 958-A]
4. Though it may be a relevant consideration in sentencing that the evidence in a given case is circumstantial in nature, there is no bar on the award of the death sentence in cases based upon such evidence. In such a situation, it is up to the Court to determine whether the accused may be sentenced to death upon the strength of circumstantial evidence, given the peculiar facts and circumstances of each case, while assessing all the relevant aggravating circumstances of the crime, such as its brutality, enormity and premeditated nature, and mitigating circumstances of the accused, such as his socio-economic background, age, extreme emotional disturbance at the time of commission of the offence, and so on. [Paras 18.1-18.2] [958-C-E]
Ashok Debbarma v. State of Tripura (2014) 4 SCC
747 : [2014] 4 SCR 287 – relied on.
Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498 : [2009] 9 SCR 90 ; Sushil Sharma v. State (NCT of Delhi) (2014) 4 SCC
317 : [2013] 16 SCR 616 ; Kalu Khan v. State of Rajasthan (2015) 16 SCC 492 : [2015] 7 SCALE 195; Sebastian @ Chevithiyan v. State of Kerala (2010) 1 SCC 58 ; Bachan Singh v. State of Punjab (1980) 2 SCC 684 – relied on.
5. The material on record is sufficient to convince the Court of the Petitioner’s guilt beyond reasonable doubt; however, the nature of the circumstantial evidence in this case amounts to a mitigating circumstance significant enough to tilt the balance of aggravating and mitigating circumstances in the Petitioner’s favour, keeping in mind the doctrine of prudence. Moreover, it is also possible that the incorrect observations pertaining to deceased’s facial injuries further led the Court to conclude in favour of imposing the death sentence on the Petitioner. Thus, there was a reasonable probability that this Court would have set aside the sentence of death in appeal, since the only surviving evidence against the Petitioner pertains to his motive to commit the crime, the circumstance of “last seen” and a solitary extrajudicial confession. In other words, it cannot be said that the punishment of life imprisonment is unquestionably foreclosed in the instant case, in spite of the gravity and barbarity of the offence. The award of the death penalty in the instant case, based on the evidence on record, cannot be upheld. A sentence of life imprisonment simpliciter would be inadequate in the instant case, given the gruesome nature of the offence, and the menace posed to society at large by the Petitioner, as evinced by the conduct of the Petitioner in jail. The conduct of the Petitioner in jail has been unsatisfactory, and that he gets aggressive and indulges in illegal activities in prison, intentionally abusing prisoners and prison staff and provoking fights with other prisoners. Two FIRs have also been registered against the Petitioner for abusing and threatening the Superintendent of the Nagpur Central Prison. It may be appropriate to impose a restriction on the Petitioner’s right to remission. The Petitioner shall, therefore, remain in prison for the remainder of his life. [Paras 20-21, 22, 22.1] [962E-H; 963-A-D] Swamy Shraddananda v. State of Karnataka (2007) 12 SCC 288 : [2007] 7 SCR 616; Ramesh v. State of Rajasthan (2011) 3 SCC 685 : [2011] 4 SCR
585 – relied on.
Mohd. Arif @ Ashfaq v. Registrar, Supreme Court of India (2014) 9 SCC 737 : [2014] 11 SCR 1009 ; Vikram Singh v. State of Punjab (2017) 8 SCC 518 : [2017] 8 SCR 177 ; P.N. Eswara Iyer v. The Supreme Court (1980) 2 SCR 889 ; Suthendraraja v. State (1999) 9 SCC 323 : [1999] 3 Suppl. SCR 540; Md. Mannan @ Abdul Mannan v. State of Bihar 2019 (7) SCALE 468 ; Swamy Shraddhananda (2) v. State of Karnataka
(2008) 13 SCC 767 : [2008] 11 SCR 93; Union of India v. V. Sriharan (2016) 7 SCC 1 : [2015] 14 SCR
613 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.