# Pappu @ Chandra Kumar v. State of U.P

- **Citation:** (2016) 3 ILRA 32
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-03-02
- **Bench:** Arvind Kumar Tripathi, Arvind Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pappu-chandra-kumar-v-state-of-u-p-43530
- **Pages:** 15

## Headnote

Govt. Advocate, Abhishek Singh,Ajeet Singh.

And

Reference NO.01 OF 2015

Criminal Law -- Indian Penal Code, 1860 - Sections 302, 506 - Arms Act - Sections 25, 27 - Murder
of police officer on duty - Police team reached appellant's house for arrest - Appellant armed with
country-made pistol warned police not to arrest him - Fired at close range at Inspector-In-Charge
causing chest firearm injury resulting in instantaneous death - Appellant apprehended on spot while
attempting to reload - Recovery of pistol and cartridges proved - Non-recovery of brass head of
cartridge and absence of fingerprint report not fatal - Evidence of police witnesses consistent and
reliable - Defence plea of false implication rejected - Held, prosecution proved case beyond
reasonable doubt. (Paras 7, 10, 11, 13)

Criminal Procedure Code, 1973 - Section 354(3) - Sentencing - Rarest of rare - Appellant already
a life-convict in another case; several criminal cases pending - Murder committed to prevent lawful
arrest - Attack on police officer in discharge of official duty constitutes grave aggravating
circumstance - No mitigating factor sufficient to commute sentence - No possibility of reformation -
Death sentence justified. (Paras 15,16, 23-25)
3 All. Pappu @ Chandra Kumar Vs. State of U.P.
33
Held Paras (16-27)-Appeal dismissed - Reference allowed - Death sentence confirmed.

Case Law discussed:

## Text

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32 INDIAN LAW REPORTS ALLAHABAD SERIES
21.Accordingly, the appeal is allowed and the Judgment and order dated 27.11.2010
passed by the Additional Sessions Judge, Court No. 7, Bareily (State Vs. Munna Deevana
and others) in S.T. No. 215 of 2010 under Section 376 I.P.C. Thana Baradari, Bareily
whereby the accused have been convicted and sentenced, is hereby set aside.

22. The accused is in jail. He shall be released forthwith in this case. The provisions of
Section 437A Cr.P.C. Shall be complied with.

23. Let copy of the Judgment be certified to the court concerned.
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.03.2016

BEFORE

THE HON'BLE ARVIND KUMAR TRIPATHI, J.
THE HON'BLE ARVIND KUMAR MISHRA, J.

Capital Cases No.- 1251 of 2015

Pappu @ Chandra Kumar ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Vinod Kumar Srivastava, Smt. Usha Srivastava.

Counsel for the Respondent:
Govt. Advocate, Abhishek Singh,Ajeet Singh.

And

Reference NO.01 OF 2015

Criminal Law -- Indian Penal Code, 1860 - Sections 302, 506 - Arms Act - Sections 25, 27 - Murder
of police officer on duty - Police team reached appellant's house for arrest - Appellant armed with
country-made pistol warned police not to arrest him - Fired at close range at Inspector-In-Charge
causing chest firearm injury resulting in instantaneous death - Appellant apprehended on spot while
attempting to reload - Recovery of pistol and cartridges proved - Non-recovery of brass head of
cartridge and absence of fingerprint report not fatal - Evidence of police witnesses consistent and
reliable - Defence plea of false implication rejected - Held, prosecution proved case beyond
reasonable doubt. (Paras 7, 10, 11, 13)

Criminal Procedure Code, 1973 - Section 354(3) - Sentencing - Rarest of rare - Appellant already
a life-convict in another case; several criminal cases pending - Murder committed to prevent lawful
arrest - Attack on police officer in discharge of official duty constitutes grave aggravating
circumstance - No mitigating factor sufficient to commute sentence - No possibility of reformation -
Death sentence justified. (Paras 15,16, 23-25)
3 All. Pappu @ Chandra Kumar Vs. State of U.P.
33
Held Paras (16-27)-Appeal dismissed - Reference allowed - Death sentence confirmed.

Case Law discussed:
1. Bachan Singh v. State of Punjab, 1980 SCC (Cri) 580 - Para 14
2. Mofil Khan v. State of Jharkhand, 2015 (88) ACC 283 (SC) - Para 15
3. Gopal Singh v. State of Uttarakhand, 2013 (7) SCC 4 - Para 17
4. Guru Basavaraj @ Bennetappa v. State of Karnataka, 2012 (8) SCC 734 - Para 18
5. Jameel v. State of U.P., 2010 (12) SCC 532 - Para 19
6. Ahmed Hussein Vali Mohammed Saiyed v. State of Gujarat, (2009) 7 SCC 254 - Para 20
7. Ravji @ Ram Chandra v. State of Rajasthan, 1996 (2) SCC 175 - Para 21
8. Sevaka Perumal v. State of Tamil Nadu, (1991) 3 SCC 471 - Para 22

(Delivered by Hon'ble Arvind K. Tripathi, J.)

1. The present capital appeal no.1251 of 2015 connected with reference no.01/15 for
confirmation of capital punishment awarded by the judgment and order dated 30.3.2015
passed by Sessions Judge, Farrukhabad is against the same judgment hence both the cases
are being considered and decided by a common order.

2. The present capital appeal has been preferred challenging the validity of the
judgment and order of conviction and sentence dated 30.3.2015 in S.T. No.5/15 arising out
of case crime no.783 of 2014 under section 302, 506 IPC, P.S. Kotwali Farrukhabad,
District Farrukhabad and S.T. No.6/15 arising out of case crime no.784 of 2014, under
section 25/27 Arms Act, P.S. Kotwali Farrukhabad, District Farrukhabad by which appellant
was convicted and sentenced for death punishment under section 302 IPC subject to
confirmation by the High Court, under section 506 IPC for two years rigorous imprisonment
with fine of Rs.10,000/- in default of payment of fine 3 months rigorous imprisonment,
under section 25 Arms Act for three years rigorous imprisonment with fine for a sum of
Rs.5,000/- in default of payment of fine two months additional rigorous imprisonment,
under section 27(1) Arms Act two years four month rigorous imprisonment with fine of
Rs.5,000/- in default of payment of fine two month rigorous imprisonment. Further direction
was that all the sentence shall run concurrently. It was further directed that half of the
amount of penalty if deposited should be given to the dependent of the deceased Inspector.

3. The reference was sent by the trial judge to this Court for confirmation of death
punishment under section 302 IPC in view of the provision of Chapter IX Rule 64 General
Rule (Crl.).

4. Mr. Vinod Kumar Srivastava, Advocate, argued the case on behalf of appellant,
learned Government Advocate Mr. Akhilesh Singh assisted by Mr. A. N. Mullah and Mr.
Chandrajeet Yadav and Mr. N. K. S. Yadav, learned Additional Government Advocates
appeared on behalf of State, Mr. Ajeet Kumar Singh appeared on behalf of complainant.

5. We heard appeal on 9.12.2015, 15.12.2015, 21.12.2015 and on 18.1.2016 judgment
was reserved on 18.1.2016.
34 INDIAN LAW REPORTS ALLAHABAD SERIES
6. The brief facts of the case is that first information report was lodged and registered at
case crime no.783 of 2014, under section 302, 506 IPC, P.S. Kotwali Farrukhabad, District
Farrukhabad and regarding the recovery of the countrymade pistol from the spot case was
registered at case crime no.784 of 2014 under section 25/27 Arms Act, P.S. Kotwali
Farrukhabad, District Farrukhabad.

7. The first information report was lodged by S.S.I. Harishchandra Singh on 29.11.2014
at 6.45 P.M. According to first information report and G.D. No.38 at 15.45 O' Clock of P.S.
Kotwali, Farrukhabad, Sub Inspector Harishchandra Singh with Constable 627 Ashok
Kumar, Constable 673 Vijay Shanker Rai, Constable 696 Vijay Kumar, Inspector Incharge
Sri Rajkumar Singh by Government Jeep No.UP 76-G-0114 with Constable driver Manoj
Kumar proceeded for search of accused appellant Pappu @ Chandra Kumar son of Thakuri
Prasad R/o Village Bag Lakula, P.S. Kotwali Farrukhabad, District Farrukhabad after getting
information regarding his presence at his house from where riksha was being operated. The
police party reached for his arrest and for further action at village Bag Lakula and accused
Pappu @ Chandra Kumar was known to Sub Inspector Harishchandra and Constable. At
about 16-10 O' Clock jeep was stopped in front of his 'Riksha House' they raided the house,
however, suddenly seeing the police party in dress, the accused appellant came out from the
house and tried to run away. When In-charge Inspector Sri Rajkumar Singh and other police
personnel proceeded to catch accused appellant and he was asked to stop but he took out his
countrymade pistol pointing towards Inspector Incharge and warned not to arrest him
otherwise they have to face the consequences. However, Inspector Incharge Sri Rajkumar
Singh encouraged the police personnel and challenging appellant Pappu @ Chandra Kumar,
proceeded towards him, who warned not to arrest him otherwise he would shoot. The
Inspector Incharge Rajkumar Singh directed to arrest accused appellant by surrounding him
as he was alone. The police personnel proceeded towards appellant. As soon as informant
and police personnel proceeded towards appellant to apprehend him he directly shot at
Inspector Incharge Sri Rajkumar Singh with countrymade pistol causing fire-arm injury on
his chest, who after a little stagger fell down in varanda towards east. When accused
appellant Pappu @ Chandra Kumar tried to re-load the countrymade pistol the informant
and police personal ran towards him and without giving any opportunity to re-load the
countrymade pistol caught him at about 4.15 P.M. after using necessary force and during
that period countrymade pistol slipped and fell down from his hands. The appellant was tied
with gamksha (a piece of cloth used as towel) and his custody was handed over to Constable
Ashok Kumar, Vijay Shanker Rai and Vijay Kumar. Thereafter, informant S.S.I. took injured
Inspector Incharge Sri Rajkumar Singh by government jeep for treatment to Dr. Ram
Manohar Lohiya Hospital. The information was also given to control room to send
additional force at the place of occurrence. The Incharge Inspector Sri Rajkumar Singh was
taken to emergency room, where he was examined by doctor present there and was declared
dead. After getting information Sub Inspector Sri Chhail Kumar Incharge Chouki residential
colony and Tiger along-with constable leaving constable Lalaram and Suresh Baboo reached
at the place of occurrence. When S.S.I., Harish Chand returned to the place of occurrence he
found accused appellant in safe custody of the constables. The countrymade pistol was also
lying there. Nobody had touched the countrymade pistol. Due to firing terror was created
and old aged persons had run away even leaving their houses unlocked. The law and order
3 All. Pappu @ Chandra Kumar Vs. State of U.P.
35
was disturbed due to that incident. The independent witnesses were not available at that time
on the spot and number of police personnel including Incharge Kotwali Fatehgarh, Sri R. P.
Yadav, Incharge Kotwali Mau reached there with police force. The police force was
deployed to control the situation and to maintain law and order. The official of the village
unit took the finger print of the countrymade pistol. The countrymade pistol was taken into
police custody. After search of accused appellant four 12 bore cartridges were recovered
from packet of his 'Paint' and in the countrymade pistol one empty cartridge was found but
brass head was found missing. Since he had no license of that pistol hence with compliance
of order of the Apex Court and National Human Rights Commission he was arrested. The
recovery memo was prepared and subsequently the information was given to his family
members. He was challaned under section 307, 506 and 302, 506 IPC and 25/27 Arms Act.
The recovery memo was prepared. The recovery memo was explained and one copy of the
recovery memo was given to accused Pappu @ Chandra Kumar. When villagers ran for rest
and shelter after incident they left their shoes and chappal near place of occurence, which
was also recovered and recovery memo was prepared on 30.11.2014. The blood stained
earth and, sample of plain earth were also taken and kept in two separate jars. The recovery
memo was prepared on 30.11.2014. The recovery memo of one gamchha was also prepared
on 30.11.2014 by which hand of the appellant was tied. After panchayatnama was prepared
the dead body was sent to mortuary for post-mortem examination. The post-mortem
examination of body of the Inspector deceased Sri Rajkumar Singh was conducted on
30.11.2014 at 4.45 A.M., which was completed at about 5.20 A.M. The following antemortem injury were found on body of deceased Rajkumar Singh:-

(i)
Fire-arm wound of entry 3.5 x 3.0 cm. over front of chest mid sternal region
11.0 cm. below sternal notch. Margin inverted lacerated echymosed, charred
blackend wound in chest, cavity deep. On dissection sternum fractured, aorta and
upper part of heart left pleura and lung found lacerated. Chest cavity full of blood.
One Tikli, beding piece-1 (plastic) and 13 small pellets recovered from chest cavity,
pleura, lung and heart. The direction was front to back towards left and down wards.

(ii)
abrasion 1.5 x 1.0 cm over front of right knee.

The cause of death according to opinion of doctor was shock and haemorrhage as a
result of ante mortem fire-arm injury. The recovery of head of empty cartridge was
absent and as such there was no mark found to compare regarding firing from the
countrymade pistol.

8. After completing the formalities and obtaining the sanction the charge-sheet was
submitted in case crime no.783/14 and 784/14, under section 302, 506 IPC and under
section 25/27 Arms Act respectively.

9. The case was committed to the court of sessions. The charges were framed by the
trial court under section 302 and 506 IPC on 6.1.2015 and under section 25/27 Arms Act on
the same day. The charges were read-over and explained. The accused appellant denied the
charges and pleaded to be tried.
36 INDIAN LAW REPORTS ALLAHABAD SERIES

10. The prosecution in order to prove its case examined six witnesses, P.W. 1 Sub
Inspector Harishchandra Singh, who was informant, P.W. 2 Constable Vijay Shanker Rai,
P.W. 3 Constable Ashok Kumar, P.W. 4 Rajendra Prasad Chaudhary, who prepared the
panchayatnama, P.W. 5 Dr. Deepak Katariya, who conducted the post-mortem examination
on body of deceased Inspector Rajkumar Singh, Inspector Mr. R. P. Yadav, Investigating
Officer was examined as P.W. 6. After the evidence was closed by the prosecution statement
of accused Pappu @ Chandra Kumar was recorded under section 313 Cr.P.C. He denied the
allegation but no evidence was adduced in defence though according to accused appellant
when raid was conducted by the police on 29.11.2014 he did not come out from his house. A
number of persons had gathered there and from among them it appears that someone fired at
the Inspector Incharge Sri Rajkumar Singh and after throwing his countrymade pistol he
might have succeeded to run away. Subsequently he was apprehended from house and
showing the recovery of countrymade pistol he was falsely implicated and challaned in the
present case.

11. Learned counsel for the appellant submitted that since there was a police force
hence it was unnatural that appellant would come out from the main door of the house and
would try to run away. It appears that fire-arm injury was caused by any unknown person to
deceased Inspector Sri Raj Kumar Singh. His body was also not found near the main door of
the house rather his dead body was found in Varanda opposite side to the Riksha House of
the appellant. According to prosecution case appellant shot fire from countrymade pistol
causing fire-arm injury on chest of deceased Inspector Incharge Raj Kumar Singh. He was
apprehended on the spot and while trying to arrest him his pistol fell down. The recovery of
the pistol was shown from the spot. Subsequently it was found that head of cartridge was
missing hence it appears that recovery of countrymade pistol was planted because if it was
recovered from the spot then prosecution failed to explain how the head of cartridge was
found missing. No blood was found from place B and C. As according to site plan deceased
Inspector Rajkumar Singh was shot at, at place B and he fell down after fire-arm injury at
place C that is varanda of the house of one Laxman. If according to prosecution appellant
shot fire from the place of D at deceased Inspector Rajkumar Singh, who was at place B and
he fell down at place C then the blood should have been recovered from the place in
between B to C but no blood stains found in between B and C, this also creates doubts
regarding the prosecution story that while he was present at place B in front of the Riksha
house of the appellant, he shot fire at him. He further submitted that it appears that the finger
print taken from the countrymade pistol was also not tallying with the finger print of the
appellant hence the same was not placed before the trial court. However, according to
prosecution story deceased along-with police force came for search and arrest of the
appellant in case crime no.777 of 2014, under section 307, 506 IPC. There is no material on
record before the trial court to show that the appellant was named accused or wanted in the
said crime number 777/14. The criminal history of the 22 cases was shown against the
appellant by the prosecution, however, there was only four cases in which appellant was
involved. In all the cases he was implicated by the police though he was not named. He
further submitted that in fact appellant was inside his 'Riksha house' and after some
unknown person caused firearm injury appellant was apprehended and showing alleged
3 All. Pappu @ Chandra Kumar Vs. State of U.P.
37
recovery of countrymade pistol he was falsely implicated in the present case. Learned
counsel for the appellant also submitted that there is no evidence that deceased Inspector
Rajkumar Singh proceeded for search and arrest of the appellant after making entry in the
general diary. Had the deceased gone for search and arrest of the appellant he would have
gone with his service pistol but the same was not found with the dead body. Learned counsel
for the appellant further submitted that according to P.W. 4 the then tehsildar Rajendra
Prasad Chaudhary, who prepared panchayatnama got information on telephone from A.D.M.
at 3.45 P.M. about death of Rajkumar, at that time he was on duty at tehsil Sadar and after
getting information he went to Lohiya Hospital. According to prosecution case the incident
took place on 4.15 P.M. hence it appears that the incident had already taken place before the
3.45 P.M. and no such incident took place as alleged by the prosecution at 4.15 P.M. in
which allegation was made against the appellant that he shot fire causing fire-arm injury on
chest of deceased Inspector Rajkumar Singh. These circumstances clearly show that he has
received injuries before 3.45 P.M. caused by any other unknown person, however, since
appellant was present in his rikshaw house hence he was implicated in the present case and
not only he was challaned but without reliable evidence he has been convicted and
sentenced by the trial court. The prosecution failed to prove the case beyond reasonable
doubt and as such appellant is entitled to be acquitted.

12. The alternative prayer of learned counsel for the appellant is on quantum of
sentence. He submitted that in view of the facts of this case it would not be covered under
the category of rarest of rare cases because even if the prosecution case is believed police
party surrounded the 'Riksha House' of the appellant and just to save himself he tried to run
away from the spot and when he was caught hold by the police personnel there was
apprehension that they might cause injury to him hence just in self defence he shot fire
without any intention to kill Inspector Incharge Rajkumar Singh, but incidentally due to the
fire-arm injury, Inspector succumbed to the injury caused on the chest. According to
prosecution case, he was present at the place B and the dead body was found at place C that
is varanda of Laxman so while moving from place B he might have received the fire-arm
injury and in view of the fact and circumstances death penalty is disproportionate to the
allegation made against the appellant and as such the same is liable to be set aside. The
reference is accordingly liable to be refused and minimum punishment prescribed for the
offence be awarded to the appellant to meet the ends of justice.

13. Learned AGA vehemently opposed argument advanced on behalf of appellant. He
further submitted that there is no reason of false implication. This has been admitted by the
appellant in his statement that police force was present outside his 'Riksha House' and he has
also admitted his presence inside his 'Riksha House'. The defence that any other person
might have caused injury is without any basis. No evidence has been adduced by the defence
to show that the incident took place otherwise and not as stated by the prosecution. The
appellant was apprehended on the spot after he shot fire and before he could re-load the
countrymade pistol for second fire and when there was some scuffle to nab him, his
countrymade pistol fell down and due to that it appears that the head of cartridge got
detached from the plastic body of the cartridge and countrymade pistol and it was not found
near the pistol or inside the pistol, hence merely on that ground the arrest of the appellant,
38 INDIAN LAW REPORTS ALLAHABAD SERIES
firing at deceased Inspector and recovery from the spot is not liable to be disbelieved. He
also submitted that as far as statement of the then tehsildar, who performed panchayatnama,
with regard to the information given by ADM is concerned, it appears that it was a
typographical mistake, however, he reached in the hospital at about 4.305.00 P.M. and
according to prosecution case itself after incident immediately deceased Inspector Rajkumar
Singh was taken to hospital and reached in the hospital at about 4.25 P.M. and he was taken
by stretcher in emergency ward. After he was examined by the doctor he was declared dead.
Even according to Investigating Officer in his statement mentioned that he get information
at about 2.30 P.M. which shows negligence on part of the Investigating Officer himself or it
was a typographical mistake because the same should have been 4.30 P.M. and the
investigation was handed over to the Station Officer, P.W. 6 R. P. Yadav on the same day at
about 6.45 P.M. i.e. on 29.11.2014 The FIR was registered at 6.45 P.M. because firstly
injured Inspector was taken to hospital and thereafter, FIR was registered. After FIR was
lodged and registered the investigation was handed over to the I.O., P.W. 6 and in the
morning on pointing out of informant he prepared site plan on 30.11.2014 at about 6.00
A.M. The blood was found in veranda and on the walls. The deceased Inspector was having
his service revolver in his hand, which was handed over to the driver. The pistol of deceased
Inspector was given by S.S.I. Harishchandra to driver Manoj Kumar in presence of P.W. 2
Constable Vijay Shanker Rai hence it is incorrect that the Inspector deceased, who went for
search of appellant was not having his pistol. Further when he proceeded for search and
arrest of the appellant in case no.777/14 along-with police force by government jeep the
G.D. entry was made at 3.45 P.M. as G.D. No.38, which was written by the deceased
Inspector Rajkumar Singh himself and G.D. entry was placed before the court concerned
and the same was approved and as such it is incorrect that he has not proceeded for search of
the appellant or incident took place before 3.45. The criminal history of two cases was
placed before the trial court and in one of the case appellant was sentenced for life
imprisonment against which appeal was preferred before the High Court and he was on bail
when present incident took place. The learned Government Advocate further contended that
appellant was life convict. The Sub Inspector was on official duty and during that appellant
shot fire at him causing his death. In view of the judgment and the law laid down by the
Apex Court in case of Bachan Singh Vs. State of Panjab connected with other petitions
1980 SCC Crl. 580, which was followed in subsequent cases including 2015 (88), ACC 283
SC Mofil Khan and another Vs. State of Jharkhand, the trial court rightly awarded capital
punishment.

14. In case of Bachan Singh Vs. State of Panjab (supra) considering the imposition of
death penalty the standards and norms restricting the area of imposition of death penalty
indicated by the Apex Court as aggravating and mitigating circumstances, which are quoted
hereinbelow;-

"202. Drawing upon the penal statutes of the States in U.S.A. framed after Furman
v. Georgia, in general, and Clauses 2(a), (b), (c) and (d) of the Indian Penal Code
(Amendment) Bill passed in 1978 by the Rajya Sabha, in particular, Dr. Chitale has
suggested these "aggravating circumstances":
3 All. Pappu @ Chandra Kumar Vs. State of U.P.
39
"Aggravating circumstances : A Court may, however, in the following cases impose
the penalty of death in its discretion:

(a)
if the murder has been committed after previous planning and involves
extreme brutality; or

(b)
if the murder involves exceptional depravity; or

(c)
if the murder is of a member of any of the armed forces of the Union or of a
member of any police force or of any public servant and was committed -

(i)
while such member or public servant was on duty; or

(ii)
in consequence of anything done or attempted to be done by such member or
public servant in the lawful discharge of his duty as such member or public servant
whether at the time of murder he was such member or public servant, as the case
may be, or had ceased to be such member or public servant; or

(d) if the murder is of a person who had acted in the lawful discharge of his duty
under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered
assistance to a Magistrate or a police officer demanding his aid or requiring his
assistance under Section 37 and Section 129 of the said Code.

203. Stated broadly, there can be no objection to the acceptance of these
indicators but as we have indicated already, we would prefer not to fetter judicial
discretion by attempting to make an exhaustive enumeration one way or the other,

204. In Rajendra Prasad, the majority said: "It is constitutionally permissible to
swing a criminal out of corporeal existence only if the security of State and society,
public order and the interests of the general public compel that course as provided
in Article 19(2) to (6)." Our objection is only to the word "only". While it may be
conceded that a murder which directly threatens, or has an extreme potentiality to
harm or endanger the security of State and society, public order and the interests of
the general public, may provide "special reasons" to justify the imposition of the
extreme penalty on the person convicted of such a heinous murder, it is not possible
to agree that imposition of death penalty on murderers who do not fall within this
narrow category is constitutionally impermissible. We have discussed and held
above that the impugned provisions in Section 302, Penal Code, being reasonable
and in the general public interest, do not offend Article 19, or its 'ethos'; nor do they
in any manner violate Articles 21 and 14. All the reasons given by us for upholding
the validity of Section 302, Penal Code, fully apply to the case of Section 354(3),
Code of Criminal Procedure, also. The same criticism applies to the view taken in
Bishnu Deo Shaw v. State of West Bengal, which follows the dictum in Rajendra
Prasad.
40 INDIAN LAW REPORTS ALLAHABAD SERIES
205. In several countries which have retained death penalty, preplanned murder
for monetary gain, or by an assassin hired for monetary reward is, also, considered
a capital offence of the first degree which, in the absence of any ameliorating
circumstances, is punishable with death. Such rigid categorisation would
dangerously overlap the domain of legislative policy. It may necessitate, as it were,
a redefinition of 'murder' or its further classification. Then, in some decisions,
murder by fire-arm, or an automatic projectile or bomb, or like weapon, the use of
which creates a high simultaneous risk of death or injury to more than one person,
has also been treated as an aggravated type of offence. No exhaustive enumeration
of aggravating circumstances is possible. But this much can be said that in order to
qualify for inclusion in the category of "aggravating circumstances" which may
form the basis of 'special reasons' in Section 354(3), circumstance found on the facts
of a particular case, must evidence aggravation of an abnormal or special degree.

206. Dr. Chitaley has suggested these mitigating factors:

Mitigating circumstances:- In the exercise of its discretion in the above cases, the
Court shall take into account the following circumstances:

(1)
That the offence was committed under the influence of extreme mental or
emotional disturbance.

(2)
The age of the accused. If the accused is young or old, he shall not be
sentenced to death.

(3)
The probability that the accused would not commit criminal acts of violence
as would constitute a continuing threat to society.

(4)
The probability that the accused can be reformed and rehabilitated.

 The State shall by evidence prove that the accused does not satisfy the conditions
3 and 4 above.

(5)
That in the facts and circumstances of the case the accused believed that he
was morally justified in committing the offence.

(6)
That the accused acted under the duress or domination of another person.

(7)
That the condition of the accused showed that he was mentally defective and
that the said defect unpaired his capacity to appreciate the criminality of his
conduct."

15.The judgment of the Constitutional Bench holding the constitutionality of the death
penalty contained under section 302 IPC was considered subsequently and followed by the
3 All. Pappu @ Chandra Kumar Vs. State of U.P.
41
Apex Court in the case of Mofil Khan Vs. State of Jharkhand (supra), which is quoted
hereinbelow:-

18. "This Court in the aforesaid decisions has evolved the doctrine of "rarest of the
rare" case and put it to test via the medium of charting out the aggravating and
mitigating circumstance in a case and then balancing the two in the facts and
circumstances of the case. As a norm, the most significant aspect of sentencing
policy is independent consideration of each case by the Court and extricating a
sentence which is the most appropriate and proportional to the culpability of the
accused. It may not be apposite for the Court to decide the quantum of sentence with
reference to one of the classes under any one of the head while completely ignoring
classes under other head. That is to say, what is required is not just the balancing of
these circumstance by placing them in separate compartments, but their cumulative
effect which the Court is required to keep in its mind so as to better administer the
criminal justice system and provide an effective and meaningful reasoning by the
Court as contemplated under section 354 (3) Code while sentencing. The following
broad heads have been culled out by the successive judgments of this Court.

"Aggravating Circumstances:

1.
The offences relating to the commission of heinous crimes like murder, rape,
armed dacoity, kidnapping etc. by the accused with a prior record of conviction for
capital felony or offences committed by the person having a substantial history of
serious assaults and criminal convictions.

2.
The offences was committed while the offender was engaged in the
commission of another serious offence.

3.
The offence was committed with the intention to create a fear psychosis in the
public at large and was committed in a public place by a weapon or device which
clearly could be hazardous to the life of more than one person.

4.
The offence of murder was committed for ransom or like offences to receive
money or monetary benefits.

5.
Hired Killings.

6.
The offence was committed outrageously for want only while involving
inhumane treatment and torture to the victim.

7.
The offence was committed by a person while in lawful custody.

8.
The murder or the offence was committed, to prevent a person lawfully
carrying out his duty like arrest or custody in a place of lawful confinement of
42 INDIAN LAW REPORTS ALLAHABAD SERIES
himself or another, for instance, murder is of a person who had acted in lawful
discharge of his duty under Section 43 Code of Criminal Procedure.

9.
When the crime is enormous in proportion like making an attempt of murder
of the entire family or members of a particular community
.
10.
When the victim is innocent, helpless or a person relies upon the trust of
relationship and social norms, like a child, helpless woman, a daughter or a niece
staying with a father/uncle and is inflicted with the crime by such a trusted person.

11.
When murder is committed for a motive which evidences total depravity and
meanness.

12.
When there is a cold blooded murder without provocation.

13.
The crime is committed so brutally that it pricks or shocks not only the
judicial conscience but even the conscience of the society.

Mitigating Circumstances:

1.
The manner and circumstances in and under which the offence was
committed, for example, extreme mental or emotional disturbance or extreme
provocation in contradistinction to all these situations in normal course.

2.
The age of the accused is a relevant consideration but not a determinative
factor by itself.

3.
The chances of the accused of not indulging in commission of the crime again
and the probability of the accused being reformed and rehabilitated.

4.
The condition of the accused shows that he was mentally defective and the
defect impaired his capacity to appreciate the circumstances of his criminal
conduct.

5.
The circumstances which, in normal course of life, would render such a
behaviour possible and could have the effect of giving rise to mental imbalance in
that given situation like persistent harassment or, in fact, leading to such a peak of
human behaviour that, in the facts and circumstances of the case, the accused
believed that he was morally justified in committing the offence.

6.
Where the Court upon proper appreciation of evidence is of the view that the
crime was not committed in a pre-ordained manner and that the death resulted in
the course of commission of another crime and that there was a possibility of it
being construed as consequences to the commission of the primary crime.
3 All. Pappu @ Chandra Kumar Vs. State of U.P.
43
7.
Where it is absolutely unsafe to rely upon the testimony of a sole eye-witness
though prosecution has brought home the guilt of the accused. While determining
the questions relatable to sentencing policy, the Court has to follow certain
principles and those principles are the load star besides the above considerations in
imposition or otherwise of the death sentence.

Principles:

1.
The Court has to apply the test to determine, if it was the 'rarest of rare' case
for imposition of a death sentence.

2.
In the opinion of the Court, imposition of any other punishment, i.e., life
imprisonment would be completely inadequate and would not meet the ends of
justice.

3.
Life imprisonment is the rule and death sentence is an exception.

4.
The opinion to impose sentence of imprisonment for life cannot be cautiously
exercised having regard to the nature and circumstances of the crime and all
relevant circumstances.

5.
The method (planned or otherwise) and the manner (extent of brutality and
inhumanity, etc.) in which the crime was committed and the circumstances leading
to commission of such heinous crime."

19. We remind ourselves that the doctrine of "rarest of rare" does not classify
murders into categories of heinous or less heinous. The difference between two is
not in the identity of the principles, but lies in the realm of application thereof to
individual fact situations. Sentences of severity are imposed to reflect the
seriousness of the crime, to promote respect for the law, to provide just punishment
for the offence, to afford adequate deterrent to criminal conduct and to protect the
community from further similar conduct. It serves a three-fold purpose-punitive,
deterrent and protective.

45. The crime test, criminal test and the "rarest of the rare" test are certain tests
evolved by this Court. The tests basically examine whether the society adhors such
crimes and whether such crimes shock the conscience of the society and attract
intense and extreme indignation of the community. The cases exhibiting premeditation and meticulous execution of the plan to murder by leveling a calculated
attack on the victim to annihilate him, have been held to be fit cases for imposing
death penalty. Where innocent minor children, unarmed persons, helpless women
and old and infirm persons have been killed in a brutal manner by persons in
dominating position, and where after ghastly murder displaying depraved mentality,
the accused have shown no remorse, death penalty has been imposed. Where it is
44 INDIAN LAW REPORTS ALLAHABAD SERIES
established that the accused is a hardened criminal and has committed murder in a
diabolic manner and where it is felt that reformation and rehabilitation of such a
person is impossible and if let free, he would be a menace to the society, this Court
has not hesitated to confirm death sentence, many a time, in cases of brutal murder,
exhibiting depravity and callousness, this Court has acknowledged the need to send
a deterent message to those who may embark on such crimes in future. In some
cases involving brutal murders, society's cry for justice has been taken note of by
this Court, amongst other relevant factors. While deciding whether death penalty
should be awarded or not, this Court has in each case realizing the irreversible
nature of the sentence, pondered over the issue many times over. This Court has
always kept in mind the caution sounded by the Constitution Bench in Bachan Singh
case (supra), that Judges should never be blood thirsty but wherever necessary in
the interest of society identify the rarest of rare case and exercise the tougher option
of death penalty.

16. In view of the facts and circumstance of the present case and the law laid down by
the Apex Court it is well settled that while considering the gravity of offence awarding
maximum punishment in case of rarest of rare cases tests basically to examine whether such
crime shocking conscience of the society and attract extreme punishment to promote respect
of law to provide just punishment for the offence. In view of the aforesaid discussion
considering the facts and circumstance of the present case and in the light of the judgment of
the Apex Court considering the aggravating circumstances and mitigating circumstances, it
is clear that appellant has committed murder to prevent a person, who was discharging his
duty for search and arrest of the appellant and he was a life convict in one case apart from
other criminal cases pending against him in two cases. He was convicted and sentenced
awarding sentence already undergone hence there is no possibility of reform and
rehabilitation and as such not only the prosecution proved the case beyond reasonable doubt
but the present case is covered under the category of rarest of rare cases hence rightly
appellant was convicted and sentenced for death sentence. The appeal is liable to be
dismissed and the reference is liable to be allowed approving the death penalty.

17. In case of Gopal Singh Vs. State of Uttarakhand 2013 (7) SC 4 it was held by the
Apex Court that "Just punishment is the collective cry of the society. While the collective cry
has to be kept uppermost in the mind, simultaneously the principle of proportionality
between the crime and punishment cannot be totally brushed aside. The principle of just
punishment is the bedrock of sentencing in respect of a criminal offence."

18. In case of Guru Basavaraj @ Bennesettapa Vs. State of Karnataka 2012 (8) SCC
734 the Hon'ble Apex Court held that "sentencing system so as to impose such sentence
which reflects the conscience of the society and the sentencing process has to be stern where
it should be.

19. In case of Jameel Vs. State of U.P. 2010 (12) SCC 532 the Supreme Court held that
the "punishment must be appropriate and proportional to the gravity of the offence
committed."
3 All. Pappu @ Chandra Kumar Vs. State of U.P.
45

20.In case of Ahmed Hussein Vali Mohammed Saiyed and another Vs. State Of
Gujarat (2009) 7 SCC 254 it was held by the Supreme Court "The object of awarding
appropriate sentence should be to protect the society and to deter the criminal from
achieving the avowed object to law by imposing appropriate sentence.