# DEEPAK RAI v. STATE OF BIHAR

- **Citation:** [2013] 14 S.C.R. 297
- **Court:** Supreme Court of India
- **Decided:** 2013-09-19
- **Case number:** Criminal Appeal Nos. 249-250 of 2011
- **Bench:** H.L. Datiu, Sudhansu Jyoti Mukhopadhaya, M. Y. Eqbal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/deepak-rai-v-state-of-bihar-29169
- **Pages:** 64

## Headnote

Sentence/Sentencing:
Death sentence - On conviction for offence u/s. 302 /PC
A
B
c
- Propriety of - Death penalty can be awarded only in
exceptional cases where the crime is so brutal, diabolical and
revolting so as to shock the collective conscience of the
community - In the present case, so far as the case of 0
accused Nos. 1 and 2 is concerned, the case falls under rarest
of rare category - The acts of murder committed by the
accused are so gruesome, merciless and brutal that the
aggravating circumstances outweigh the mitigating
circumstances - Hence their death sentence confirmed -
However, for accused No. 3, in view of the role played by him
E
during commission of the offence, sentence of imprisonment
till the end of his life would be proportionate to the degree of
offence committed by him - His death sentence altered to
imprisonment till the end of his life - Penal Code, 1860 - s.
302.
'
F
Sentencing - Determination of sentence - Judicial
approach - Held: Judicial approach towards sentencing has
to be cautious, circumspect and careful - The courts at all
stages must peruse and analyze the facts of the case and
G
reach an independent conclusion -
The touchstone for
determining correctness of decision, is not the length of
discussion, but the lucidity of the reasons.
297
H
298
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A
Code of Criminal Procedure, 1973 - s. 354(3) - 'Special
masons' - Recording of - For award of death sentence -
Adequacy of - Held: s. 354(3) mandates recording of 'special
masons' for imposition of capital punishment - The test to
d'etermine the correctness of decision would be that the
B
'reasons' must be lucid and satisfy the appellate court that
court below has considered the case in toto and thereafter,
upon balancing all the mitigating and aggravating factors,
n9corded the sentence.
Constitution of India, 1950 - Art. 136 - Scope of -
To
C
e•xamine 'special reasons' for awarding death sentence as
e'nvisaged u/s. 354(3) Cr. P. C. -
Held: The appellate
jurisdiction by virtue of Article 136 is not plain statutory, but
e1xpansive and extraordinary - Such jurisdiction is not fettered
by rules of criminal procedure, or limited to mere confirmation
D or rejection of the appeal -
The Court while considering
correctness of sentence can not only examine the reasons
so assigned u/s. 354(3), but can also substantiate upon the
same - Code of Criminal Procedure, 1973 - s. 354(3) -
E
Sentence/Sentencing.
Remand - Of criminal case - By Supreme Court - For
cfeciding the question of sentence - Held: Remand is an
exception, not the rule -
Ought to be avoided as far as
possible in the interest of expeditious, though fair disposal of
F
cases.
Appellants A-1, A-2 and A-3 alongwith other accused
persons were prosecuted ulss. 1208, 148, 302/149, 307/
149, 326, 429, 436 and 452 IPC. The prosecution case
was that the accused persons came to the house of
G deceased informant (PW 7) while he was sleeping in the
verandah of his house at night. The accused persons
locked the room where the wife of PW 7 was sleeping
alongwith her five children and after sprinkling kerosene
<>ver the house, set it on fire. They first gagged PW 7 and
H then sprinkling kerosene over his body and set him on
DEEPAK RAI v. STATE OF BIHAR
299
fire. On the basis of Fardbayan, FIR was registered. The
A
alleged motive for the offence was that the informant had
lodged an FIR against A-1 and his family alleging theft of
his bufallow and despite repeated threats, the informant
refused to withdraw the FIR. Trial court convicted the
appellants-accused while acquitting the rest of the
B
accused and sentenced them to death. High Court
affirmed the order of trial court as well as death reference.
Hence the present appeals. The appeals are limited to the
question of sentence.
A-1 contended that since no extraordinary reasons
C
have been assigned by courts below for awarding death
sentence to the accused, the orders do not conform to
the statutory mandate prescribed u/s.

## Text

_Characters 0–39,988 of 117,900. This is a partial read: ask again with offset=39988 for what follows._

[2013] 14 S.C.R. 297
DEEPAK RAI
v.
STATE OF BIHAR
(Criminal Appeal Nos. 249-250 of 2011)
SEPTEMBER 19, 2013
[H.L. DATIU, SUDHANSU JYOTI MUKHOPADHAYA
AND M. Y. EQBAL, JJ.]
Sentence/Sentencing:
Death sentence - On conviction for offence u/s. 302 /PC
A
B
c
- Propriety of - Death penalty can be awarded only in
exceptional cases where the crime is so brutal, diabolical and
revolting so as to shock the collective conscience of the
community - In the present case, so far as the case of 0
accused Nos. 1 and 2 is concerned, the case falls under rarest
of rare category - The acts of murder committed by the
accused are so gruesome, merciless and brutal that the
aggravating circumstances outweigh the mitigating
circumstances - Hence their death sentence confirmed -
However, for accused No. 3, in view of the role played by him
E
during commission of the offence, sentence of imprisonment
till the end of his life would be proportionate to the degree of
offence committed by him - His death sentence altered to
imprisonment till the end of his life - Penal Code, 1860 - s.
302.
'
F
Sentencing - Determination of sentence - Judicial
approach - Held: Judicial approach towards sentencing has
to be cautious, circumspect and careful - The courts at all
stages must peruse and analyze the facts of the case and
G
reach an independent conclusion -
The touchstone for
determining correctness of decision, is not the length of
discussion, but the lucidity of the reasons.
297
H
298
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A
Code of Criminal Procedure, 1973 - s. 354(3) - 'Special
masons' - Recording of - For award of death sentence -
Adequacy of - Held: s. 354(3) mandates recording of 'special
masons' for imposition of capital punishment - The test to
d'etermine the correctness of decision would be that the
B
'reasons' must be lucid and satisfy the appellate court that
court below has considered the case in toto and thereafter,
upon balancing all the mitigating and aggravating factors,
n9corded the sentence.
Constitution of India, 1950 - Art. 136 - Scope of -
To
C
e•xamine 'special reasons' for awarding death sentence as
e'nvisaged u/s. 354(3) Cr. P. C. -
Held: The appellate
jurisdiction by virtue of Article 136 is not plain statutory, but
e1xpansive and extraordinary - Such jurisdiction is not fettered
by rules of criminal procedure, or limited to mere confirmation
D or rejection of the appeal -
The Court while considering
correctness of sentence can not only examine the reasons
so assigned u/s. 354(3), but can also substantiate upon the
same - Code of Criminal Procedure, 1973 - s. 354(3) -
E
Sentence/Sentencing.
Remand - Of criminal case - By Supreme Court - For
cfeciding the question of sentence - Held: Remand is an
exception, not the rule -
Ought to be avoided as far as
possible in the interest of expeditious, though fair disposal of
F
cases.
Appellants A-1, A-2 and A-3 alongwith other accused
persons were prosecuted ulss. 1208, 148, 302/149, 307/
149, 326, 429, 436 and 452 IPC. The prosecution case
was that the accused persons came to the house of
G deceased informant (PW 7) while he was sleeping in the
verandah of his house at night. The accused persons
locked the room where the wife of PW 7 was sleeping
alongwith her five children and after sprinkling kerosene
<>ver the house, set it on fire. They first gagged PW 7 and
H then sprinkling kerosene over his body and set him on
DEEPAK RAI v. STATE OF BIHAR
299
fire. On the basis of Fardbayan, FIR was registered. The
A
alleged motive for the offence was that the informant had
lodged an FIR against A-1 and his family alleging theft of
his bufallow and despite repeated threats, the informant
refused to withdraw the FIR. Trial court convicted the
appellants-accused while acquitting the rest of the
B
accused and sentenced them to death. High Court
affirmed the order of trial court as well as death reference.
Hence the present appeals. The appeals are limited to the
question of sentence.
A-1 contended that since no extraordinary reasons
C
have been assigned by courts below for awarding death
sentence to the accused, the orders do not conform to
the statutory mandate prescribed u/s. 354(3) Cr.P.C.
which requires the judgment to record 'special reasons'
in case of death sentence; that this Court in exercise of D
appellate jurisdiction could not go into the same for the
first time while confirming the death sentence and
therefore the matter was required to be remanded to trial
court for fresh consideration on the question of sentence
as per s. 354(3) Cr.P.C.
E
A-2 and A-3 contended that mitigating circumstances
overwhelmingly outweigh the aggravating circumstances
and therefore ends of justice would only be ~chieved by
commuting their death sentence to life imprisonment.
F
Disposing of the appeals, the Court
HELD: 1.1. It is not correct to say that in case, the
failure on the part of the Court, which has convicted an
accused and heard him on the question of sentence but G
failed to express the "special reasons" in so many words,
must necessarily entail a remand to that Court for
elaboration upon its conclusion in awarding the death
sentence for the reason that while exercising appellate
H
300
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A jlllrisdiction, this Court cannot delve into such reasons.
[Para 21] [323-F-G]
1.2. The appellate jurisdiction vested in this Court by
virtue of Article 136 is not plain statutory but expansive"
8
aind extraordinary. The Court exercises its discretion and
grants leave to appeal in cases where it is satisfied that
the same would circumvent a grave miscarriage of justice.
Such jurisdiction is not fettered by rules of criminal
procedure but guided by judicially evolved principles.
C [Para 23] [324-B-C]
State of UP. v. Dharmendra Singh (1999) 8 SCC 325:
1999 (3) Suppl. SCR 52 - relied on.
1.3. An appeal by special leave under Article 136 is a
0
continuation of the original proceedings. The scope of an
appeal under Articles 136 and 226 cannot be wider than
the earlier proceedings. Thus, jurisdiction of this Court
in appeal under Article 136 though circumscribed to the
scope of earlier proceedings is neither fettered by the
E rules of criminal procedure nor limited to mere
c:onfirmation or rejection of the appeal. This Court while
c:onsidering the question of correctness or otherwise·of
the sentence awarded by the Courts below has exercised
discretionary jurisdiction under Article 136 and hence can
not only examine the reasons so assigned under Section
F 354(3) but also substantiate upon the same, if need so be.
[Paras 25 to 27] [325-D, H; 326-A-C]
Moran M. Base/ios Marthoma Mathews II v. State of
Kera/a (2007)-6 SCC 517: 2007 (4) SCR 876; Netai Bag v.
G State of WB. (2000) 8 sec 262 - relied on.
2.1. Under s. 235(2) Cr.P .C., the Court on convicting
an accused must unquestionably afford an opportunity
to the accused to present his case on the question of
H sentence and under Section 354(3) record the
DEEPAK RAI v. STATE OF BIHAR
301
extraordinary circumstances which warrant imposition of A
death sentence keeping in view the entire facts of the
case and the submissions of the accused. In doing so if,
for any reason, it omits to do so or does not assign
elaborate reasons and the accused makes a grievance
of it before the higher court, It would be open to that
B
Court to remedy the same by elaborating upon the said
reasons. (Para 44] (335-H; 336-A-B]
2.2. Even when the reasons recorded by the Courts
below do not conform to the statutory mandate or the
judicially evolved principles, this Court, should reach the
C
conclusion that harsher sentence of death requires to be
imposed, could supplement them so as to justify the
imposition of such sentence instead of remanding the
matter to Courts below for re-consideration on the
question of sentence. [Para 44] (336-C]
D
2.3. If this Court opines to the contrary that the facts
and circumstances of the case do not require imposition
of capital punishment and the ends of justice would be
achieved by a les~ harsh sentence, it could accordingly
E
commute the sentence awarded by the Courts below.
Remand is an exception, not the rule, and therefore
ought to be avoided as far as possible in the interests of
expeditious, though fair, disposal of cases. (Para 44]
(336-D-E]
Dagdu v. State of Maharashtra (1977) 3 SCC 68: 1977
(3) SCR 636 -relied on.
F
2.4. It is not the case of the appellants that the
opportunity to be heard on the question of sentence
G
separately as provisioned for under Section 235(2) of the
Code was not provided by the Courts below. Further, the
Trial Court has recorded and discussed the submissions
made by the appellants and the prosecution on the said
question and thereafter, rejected the possibility of H
302
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A awarding a punishment less harsh than the death penalty.
However, the High Court while confirming the sentence
ha1s recorded reasons though encapsulated. The High
Court has noticed the motive of the appellants being non
withdrawal of the case by the informant and the ghastly
8
m.anner of commission of crime whereby six innocent
persons as young as 3 year old were charred to death
and concluded that the incident shocks the conscience
of the !'!ntire society and thus deserves nothing lesser but
dE!ath penalty. [Para 45] [336-F-H; 337-A]
c
2.5. There being no impropriety by the Courts below
in compliance with the procedure prescribed under law
for sentencing the appellants, only the question of
adequacy and correctness of the special reasons
assigned for awarding sentence of death requires to be
D considered by this Court. It is only upon examination of
the facts and circumstances of the case could the
adequacy of the special reasons recorded by the Courts
bi~low be determined by this Court. (Para 46] (337-8-C]
E
3.1. Legislation of Code of Criminal Procedure, 1973
brought a shift 'in the then existing penological trend 'by
making imprisonment for life a rule and death sentence
an exception. It makes it mandatory for the Court in cases
o·f conviction for an offence punishable with
F imprisonment for life to assign reasons in support of the
simtence awarded to the convict and further ordains that
in case the Court awards the death penalty, "special
reasons" for such sentence shall be stated in the
jllldgment. [Para 30] (326-G-H; 327-A]
G
Bachan Singh v. State (1980) 2 SCC 684; Shashi Nayar
v. Union (1992) 1 SCC 96: 1991 (2) Suppl. SCR 103 -
followed.
Ediga Anamma v. State of Andhra Pradesh (1974) 4
H SCC 443: 1974 (3) SCR 329; Al/auddin Mian v. State of Bihar
DEEPAK RAI v. STATE OF BIHAR
303
(1989) 3 SCC 5: 1989 (2) SCR 498; Swamy Shraddananda
A
(2) v. State of Karnataka (2008) 13 SCC 767: 2008 (11) SCR
93; Sandesh v. State of Maharashtra (2013) 2 SCC 479:
2012 (13) SCR 1049 - relied on.
Jagmohan Singh v. State of U. P. (1973) 1 SCC
B
20:1973(2) SCR 541; State of Maharashtra v. Goraksha
Ambaji Adsul, (2011) 7 SCC 437; Sangeet v. State of
Haryana, (2013) 2 SCC 452; Sandesh v. State of
Maharashtra, (2013) 2 SCC 479; Joseph v. State of Goa
(1977) 3 sec 280: Harnam v. State of U.P. (1976) 1 sec c
163: 1976 (2) SCR 274 - referred to.
3.2. Under s. 354(3) of Cr.P.C., the legislature casts a
statutory duty on the Court to state reasons for choice
of the sterner sentence to be awarded in exceptional
cases as against the rule of life imprisonment and by
D
necessary implication, a legal obligation to explain them
as distinguished from the expression "reasons" follows.
The legislative mandate of assigning "special reasons"
assures that the imposition of the capital punishment is
well cc;>nsidered by the Court and that c;>nly upon
E
catego'rization of the case as "rarest of r'are", thus
leaving no room for imposition of a less harsh sentence,
should the Court sentence the accused person to death.
[Para 42] (335-C-D]
3.3. The judicial approach towards sentencing has to
F
be cautious, circumspect and careful. The Courts at all
stages-trial and appellate, must therefore peruse and
analyze the facts of the case in hand and reach an
independent conclusion which must be appropriately and
cogently justified in the "reasons" or "special reasons"
G
recorded by them for imposition of life imprisonment or
death penalty. The length of the discussion would not be
a touchstone for determining correctness of a decision.
The test would be that reasons must be lucid and satisfy
the appellate Court that the Court below has considered
H
304
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A the case in toto and thereafter, upon balancing all the
mitigating and aggravating factors, recorded the ·
sentence. [Para 43] [335-E-G]
Ba/want Singh v. State of Punjab (1976) 1 SCC 425;
B Muniappan v. State of T.N. (1981) 3 SCC 11: 1981 (3) SCR.
270; Dagdu v. State of Maharashtra (1977) 3 SCC 68: 1977 ·
(3) SCR 636; Rajesh Kumar v. State (2011) 13 SCC 706;
Ambaram v. State of M.P. (1976) 4 SCC 298 - held
inapplicable.
C
4.1. Only in those exceptional cases where the crime
is £;o brutal, diabolical and revolting so as to shock the
collective conscience of the community, would it be
appropriate to award death sentence. Since such
cir<:umstances cannot be laid down as a straight jacket
D formula but must be ascertained from case to case, the
legislature has left it open for the Courts to examine the
facts of the case and appropriately decide upon the
sentence proportional to the gravity of the offence. [Para
51] [343-H; 344-A-B]
E
4.2. In ,the· present case, the time, place, manner of
and the motive behind commission of the crime speak
volumes of the pre-meditated and callous nature of the
offence. The ruthlessness of the appellants is reflected
through brutal murders of the young, innocent children
F and wife of the informant by burning them alive to avenge
their cause in the dark of the night; the cause being nonwithdrawal of an FIR filed by the informant for theft of his
buffalo against the appellant-A1. Further, only family
members of the informant have come forward to depose
G as the entire village must have been shocked with the
ghastly murders of the deceased persons and in such
cir1::umstances would not have come forward to testify
against the appellants who already had translated the
thr1eats given to the informant in village panchayat into a
H shocking reality. Civilized people generally unsuccinctly
DEEPAK RAI v. STATE OF BIHAR
305
when the crime is committed infact in their presence,
A
withdraw themselves both from the victim and the
vigilante unless inevitable and consider that crime like
civil disputes must restrict itself to the two parties, it also
evidences for the threat the incident had instilled
amongst the villagers that none in such close knit unit
B
besides the sanguine relatives had come forth to testify
against the accused. [Para 82) [356-D-H; 357-A]
4.3. The mitigating circumstances in respect of
comparatively young age of the appellants holds no
ground, their army background and their custodial C
behavior fail to outweigh the aggravating factors in the
present case. The plea that the appellants are not
"antisocial elements" fails into inception in the light of the
effect of the occurrence reflected through the abstinence
of the villagers from deposing against them at the trial.
D
[Para 83) [357-B-C]
4.4. So far ,as the r:riitigating factors of lack of criminal
antecedents or probabilities of the appellants to be
menace to the society are concerned, it is true that the
underlying principle of sentencing 'juri~prudence is
reformation and there is nothing in evidence to show that
the appellants have been a threat or menace to the
society at large, besides the FIR regarding the theft of
buffalo. It is also true that it cannot be said that they
would be a further menace to the society or not.
Nevertheless, the law prescribes for future, baseCI upon
its knowledge of the past and is being forced to deal with
tomorrow's problems with yesterday's toqls. [Para 85]
[357 ·F-H; 358-A]
4.5. While determining the gravity of the offence
committed by the appellants, it must be noticed that it is
only A1 who had threatened the informant of burning his
house in case the FIR against his family and him were not
E
F
G
H
306
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A withdrawn. Further, A1 during the occurrence not only
sc:ripted and instructed the rest of the unlawful assembly
but also lighted the matchstick to burn the house as well
a~; informant's body. A2, pushed the informant to the
ground and later fired at him. [Para 84) [357-D-E]
B
4.6. As regards A1 and A2, the instant case falls into
such category of rarest of the rare cases where culpability
has assumed the proportion of extreme depravity and the
appellant-accused are perfect example of a blood thirsty,
scheming and hardened criminals who slayed seven
C innocent lives to quench their thirst for revenge and such
re1venge evolving out of a fellow citizens refusal to
abstain from resorting to machinery of law to protect his
rights. The entire incident is extremely revolting and
shocks the collective conscience of the community. The
D ac:ts of murder committed by the appellants are so
gruesome, merciless and brutal that the aggravating
circumstances
far
outweigh
the
mitigating
circumstances. [Para 87] [358-C-E]
E
4.7. A1 and A2. have committed a cold blooded
murder in a pre-ordained fashion without any
pl'ovocation whatsoever. The motive behind the
gruesome act was to avenge the act of informant in
approaching the machinery of law enforcement inspite of
F threats by the appellants. The victims were five innocent
children and wife of the informant who were sleeping
unalarmed when the appellants came and locked them
inside· their house while it was set ablaze. Further, wrath
of A1 and A2 is reflected in their act of first gagging the
informant, thereafter attempting to burn him alive and
G later, when he tried to escape, firing at him thereby leaving
no stone unturned in translating their threats into reality.
As a result of the aforesaid incident, having witnessed the
threats of burning given by A1 to the informant tuned into
reality, none but the family of the deceased-informant
H
DEEPAK RAI v. STATE OF BIHAR
307
came forth to depose against the appellant-accused
A
persons during the trial. The crime, enormous in
proportion having wiped off the whole family, is
committed so brutally that it pricks and shocks not only
the judicial conscience but even the collective
conscience of the society. It demands just punishment
B
from the Court and the Court is bound to respond within
legal parameters. The demand for justice and the award
of punishment have to be in consonance with the
legislative command and the discretion vested in the
Courts. [Para 88] [358-F-H; 359-A-C]
c
4.8. Having regard to the gravity of the offence
committed, with regard to A1 and A2, this case falls into
the category of rarest of the rare cases and is not a case
where imprisonment for life is an adequate sentence and
thus, constrained to reach the inescapable conclusion
D
that death sentence imposed on A1 and A2 be confirmed.
Therefore, the sentence of death imposed on A1 and A2
is confirmed. [Paras 90 and 91] [359-G-H; 360-A]
4.9. However, while taking an overall view, no overt
E .
act in the commission of crime could be attributed to A3.
The role played by A3 during commission of the crime,
as established, was to hold the barrels of kerosene along
with one other accused. Sentence of imprisonment till the
end of his life would appropriately serve as punishment
proportional to the degree of offence committed by him.
'The sentence awarded to A3 is commuted to life
imprisonment till the rest of his life. [Paras 84, 86 and 91]
[357-C-D; 358-B; 360-A]
F
Macchi Singh v. State of Punjab (1983) 3 SCC 470:
G
1983 (3) SCR 413; Ramnaresh v. State of Chhattisgarh
(2012) 4 SCC 257: 2012 (3) SCR 630; Gurdev Singh v. State
of Punjab (2003) 7 SCC 258: 2003 (2) Suppl. SCR 80 -
relied on.
H
308
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A
Sunder Singh v. State of Uttaranchal (2010) 10 SCC 611
201,0 (11) SCR 927; M.A. Antony v. State of Kera/a (2009) 6
SCC 220: 2009 (6) SCR 829; Jagdish v. State of M.P. (2009)
9 SCC 495: 2009 (14) SCR 727; Prajeet Kumar Singh v.
Sts1te of 8ihar (2008) 4 SCC 434: 2008 (5) SCR 969; Ram
B Singh v. Sonia (2007) 3 SCC 1: 2007 (2) SCR 651; Holiram
Bordoloi v. State of Assam (2005) 3 SCC 793:2005 (3) SCR
406; Karan Singh v. State of UP. (2005) 6 SCC 342;
Gurmeet Singh v. State of UP. (2005) 12 SCC 107: 2005 (3)
Suppl. SCR 651; State of Rajasthan v. Kheraj Ram (2003)
c 8 sec 224: 2003 (2) Suppl. scR 861;
Om Prakash v. State of Uttaranchal (2003) 1 SCC 648:
2002 (4) Suppl. SCR 623; Praveen Kumar v. State of
Ka1rnataka (2003) 12 SCC 199; Suresh v. State of UP. (2005)
6 SCC 130: 2005 (1) Suppl. SCR 759; Ranjeet Singh v.
D State of Rajasthan (1988) 1 SCC 633; Ramdeo Chauhan v.
State of Assam (2000) 7 SCC 455: 2000 (2) Suppl. SCR 28
Narayan Chetanram Chaudhary v. State of Maharashtra
(21000) 8 SCC 457: 2000 (3) Suppl. SCR 104; Surja Ram v.
E State of Rajasthan (1996) 6 SCC 271: 1996 (6) Suppl. SCR
783; Ravji v. State of kajasthan (1996) 2 SCC 175: 1995 (6)
Suppl. SCR 195; Sudam v. State of Maharashtra (2011) 7
SCC 125: 2011 (6) SCR 1104; Atbir v. Govt. (NCT of Delhi)
(2010) 9 SCC 1: 2010 (9) SCR 993; Ajitsingh Harnamsingh
F Gujral v. State of Maharashtra, (2011) 14 SCC 401: 2011 (13)
SCR 1000; Mohd. Chaman v. State (NCT of Delhi) ·(2001) 2
SCC 28; Dilip Premnarayan Tiwari v. 'State of Maharashtra
(2010) 1 SCC 775: 2009 (16) SCR 322; Sebastian v. State
of Kera/a (2010) 1 SCC 58; Amit v. State of UP. (2012) 4
G SCC 107: 2012 (1) SCR 1009 - referred to.
H
Case Law Reference:
(1976) 4 sec 298
(1976) 1 sec 425
held inapplicable Para 16
held inapplicable Para 17
DEEPAK RAI v. STATE OF BIHAR
309
1981 (3) SCR 270
held inapplicable Para 18
A
1977 (3) SCR 636
held inapplicable Para 19
(2011) 13 sec 706
held inapplicable Para 19
2003 (2) Suppl. SCR 80
referred to
Para 12
B
1999 (3) Suppl. SCR 52
relied on
Para 24
2007 (4) SCR 876
relied on
Para 25
(2000) 8 sec 262
relied on
Para 26
c
1974 (3) SCR 329
relied on
Para 31
1976 (2) SCR 274
referred to
Para 32
1989 (2) SCR 498
relied on
Para 33
(1980) 2 sec 684
followed
Para 34
D
(1973) 2 SCR 541
referred to
Para 35
(2011 > 1 sec 437
referred to
Para 36
(2013) 2 ~cc ·452
referred to
Par;;l 36
E
(2013) 2 sec 479
referred to
Para 36
2008 (11) SCR 93
relied on
Para 37
1991 (2) Suppl. SCR 103 followed
Para 40
F
2012 (13) SCR 1049
relied on
Para 41
1977 (3) SCR 636
relied on
Para 44
1983 (3) SCR 413
relied on
Para 47
2011 13 sec 106
relied on
G
Para 49
2012 (3) SCR 630
relied on
Para 50
2010 (11) SCR 927
referred to
Para 54
2009 (6) SCR 829
referred to
Para 55
H
310
SUPREME COURT REPORTS
[2013) 14 S.C.R.
A
2009 (14) SCR 727
referred to
Para 56
2008 (5) SCR 969
referred to
Para 57
2007 (2) SCR 651
referred to
Para 58
B
2005 (3) SCR 406
referred to
Para 59
(2005) 6 sec 342
referred to
Para 60
2005 (3) Suppl. SCR 651 referred to
Para 61
2003 (2) Suppl. SCR 861 referred to
Para 62
c
2002 (4) Suppl. SCR 623 referred to
Para 63
(2003) 12 sec 199
referred to
Para 65
2005 (1) Suppl. SCR 759 referred to
Para 66
D
(1988) 1 sec 633
referred to
Para 67
2000 (2) Suppl. SCR 28
referred to
Para 68
2000 (3) Suppl. SCR 104 referred to
Para 69
1996 (6) Suppl. SCR 783 referred to
Para 70
E
1995 (6) Suppl. SCR 195 referred to
Para 71
2011 (6) SCR 1104
referred to
Para 72
2010 (9) SCR 993
referred to
Para 73
F
2011 (13) SCR 1000
referred to
Para 74
(2001 > 2 sec 28
referred to
Para 75
2009 (16) SCR 322
referred to
Para 76
(201 O) 1 sec 58
referred to
Para 77
G
2011 13 sec 106
referred to
Para 78
2012 (1) SCR 1009
referred to
Para 79
1999 (3) Suppl. SCR 52
referred to
Para 80
H
1999 (3) Suppl. SCR 52
referred to
Para 81
DEEPAK RAI v. STATE OF BIHAR
311
2003 (2) Suppl. SCR 80
relied on
Para 85
CRIMINAL AP PELLA TE JURISDICTION : Criminal Appeal
Nos. 249-250 of 2011.
A
From the Judgment & Order dated 19.08.2010 of the High
Court of Judicature at Patna in Death Reference No.6 of 2009
B
and Criminal Appeal (DB) No. 989 of 2009.
WITH
Crl. A. Nos. 1747-1748 of 2011.
Dr. Sumant Bhardwaj, Ankita Chaudhary, K.K. Shukla,
Archana Pathak, Mriduka Ray Bharadwaj, Ramesh Chandra
Mishra (AC.), Dr. Meera Agarwal for the Appellant.
Nagendra Rai, Gopal Singh, Chandan Kumar, Smarhar
Singh for the Respondent.
The Judgment of the Court was delivered by
c
D
H.L. DATTU, J. 1. These appeals are directed against
the judgment and order passed by the High Court of Judicature
at Patna in Death Reference No. 6 of 2009 and Criminal
E
Appeal(DB) Nos. 989 of 2009 and 158 of 2010, dated
19.08.2010. By the impugned judgment and order, the 1-:ligh
Court has confirmed the judgment of conviction, dated
17.09.201 O and order of sentence, dated 30.1 o.2po9 passed
by the Additional Sessions Judge cum FTC No. 2, Vaishali at
F
Hazipur in Sessions Trial No. 195 and 571 of 2006, wherepy
the learned Sessions Judge has convicted the three accusedappellants for offence under Sections 120B, 148, 302 read with
149, 307 read with 149, 326, 429, 436 and 452 of Indian Penal
Code, 1860 (for short 'the IPC') and sentenced them to death.
G
Facts:
2. The Prosecution case in a nutshell is: On the fateful night
of 01.01.2006, the deceased informant (PW-7) was sleeping
H
312
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A in the Varanda of his house and his wife alongwith the children,
two daughters aged 12 and 10 years, respectively and three
sons aged 8, 6 and 3 years, respectively were sleeping in the
mom inside the house. At around 01.00 A.M., he was
awakened by the sound of footsteps of several people. In the
B dlim light of a night bulb and further from their voices, he
identified the persons who had come near his house armed
with lethal weapons as appellant-accused persons and nine
other villagers besides 10-11 unknown persons. Before the
informant could escape, appellant-accused-Jagat Rai{A 1) and
C Deepak Rai{A2) caught hold of him and pushed him on the
!~round whereafter 3-4 unknown persons got over his body and
!~agged him. Then A1 instructed few others to surround the
lnouse from all sides and sprinkle kerosene over it, while the
other accused persons locked the door of the room where the
0
informant's wife was sleeping alongwith the children and set the
house on fire trapping them inside. Thereafter, they sprinkled
kerosene over the informant's body and held him to the ground
while A 1 set the informant's mouth on fire by lighting a
matchstick. Upon rising of a blazing flash of fire, the accused
persons fled away leaving the informant behind. While the
E informant also attempted to escape, A2· fired at him but the
informant managed an escape and raised alarm. On hearing
such noise, the informant's four brothers imd other family
members who resided in the adjoining houses woke up,
reached the spot and witnessed the accused persons running
F away while the informant was on fire. Until then the fire in
informant's house had reached its enormity, swallowing the
informant's family and injuring the buffalo and calf on the
property. The informant {PW-7) was rushed to the Primary
G
Health Centre, Raghopur.
3. The fardbayan was recorded at 7:30 AM, on the basis
of which an FIR was registered against the three appellantaccused and few others for the offence under Sections 147,
148, 149, 452, 342, 324, 326, 427, 436, 307 and 302 of the
H IPC at 9:00 AM on 01.01.2006. The motive of the occurrence
DEEPAK RAI v. STATE OF BIHAR
313
[H.L. DATTU, J.]
was alleged to be the informant's refusal even after consistent
A
threats by A 1 to withdraw the FIR iodged by him for the theft of
informant's buffalo against A 1 and his family, in pursuance of
which two members of his family were arrested. Upon
investigation, the chargesheet was drawn against the aforesaid
accused persons on 21.03.2006. The learned Judicial s
Magistrate, First Ciass, Hazipur, Vaishali bifurcated the case
of the absconded accused persons-A 1, A2 and 8 others and
committed the case of Bacchababu Rai (A3) and 5 others for
trial as Sessions Trial No. 195 of 2006, by order dated
06.05.2006. Upon arrest of the accused persons-A 1, A2 and
C
one other, their case was separated from other absconderaccused persons and committed to trial as Sessions Trial No.
571 of 2006, by order dated 15.12.2006.
4. While in Sessions Trial No. 195 of 2006, 17 witnesses
were examined and 14 exhibits were produced, in Sessions
D
Trial No.571 of 2006, 14 witnesses were examined and 11
exhibits were produced by the prosecution. Since both the
cases arose out of the same FIR, they were consolidated by
order dated 12.01.2008, whereafter their trial proceeded
together. While A2 examined 8, witnesses, other two accused
E
persons- Binay Rai and Ranjay Rai examined five and three
witnesses, respectively in their defence.
5. Since the evidence of prosecution witnesses recorded
in the two trials corroborates the prosecution case in material
particulars, brevitatis causa and to avoid repetition we would
only n'otice them once. The informant (PW-7) has identified the
appellant-accused persons, supported the prosecution case in
his evidence and testified in respect of the time and manner
F
of occurrence of the fateful incident and the motive of the
accused persons. PWs 1, 2, 3 and 4 are the brothers of PWG
7 who resided adjacent to PW-7's house. They have identified
the accused persons and further corroborated the prosecution
case in respect of time of occurrence and motive of the
appellant-accused persons. PW-1 has stated that as soon as
H
314
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A he heard PW-Ts shrieks and noise from the blazing fire, he
rushed outside his house and witnessed the accused persons
fleeing away. He found PW-7 on fire and immediately covered
him with a blanket to douse it; whereafter, he along with others
attempted to set the fire off at PW-Ts house but the fire having
B trctnsformed into a conflagration it was too late to save the six
deceased persons. PW-5 (wife of PW-2), PW-6 (mother of PW7), PW-14 (wife of PW-1), PW-15 (sister of PW-7) and PW1fj (wife of PW-4) have also supported the prosecution case
in respect of PW-1's account of the incident, i.e., the fleeing
c away of the three appellant-accused persons along with others
and the motive of the accused persons behind the incident.
PW-8, the Doctor who conducted post mortem examination of
the six deceased persons, has corroborated the prosecution
case that the death occurred by 100% burn injuries. PW-10,
D the Doctor who treated PW-7, has testified in respect of the
injuries suffered by PW-7. His evidence alongwith the postmortem report corroborate the time and manner of the fateful
incident. Further, PW-11 (the Investigating Officer) supported
the prosecution case with regard to the time and place of the
E C>ccurrence and the presence of charred dead bodies of the
six deceased persons. The Trial Court discarded the
testimonies of the defence witnesses at the outset and
proceeded with the trial.
6. Upon meticulous consideration of the evidence on
F record and the submissions made by the parties, the learned
Se~sions Judge has observed that even though the witnesses
examined by the prosecution are related to the victims, their
testimonies when considered with due care and caution are
corroborated by the evidence of informant (PW-7), the post
G mortem reports, evidence of the Doctors(PW-9 and 10) and the
evidence of PW-11, the Investigating Officer and therefore,
cannot be rejected on the prima facie ground of them being
interested witnesses. The Trial Court has believed the aforesaid
evidence corroborating the prosecution case in respect of A 1,
H A2 and A3; however, doubted the presence of other accused
DEEPAK RAI v. STATE OF BIHAR
315
[H.L. DATIU, J.)
persons since their names have neither been mentioned in the
A
fardbayan nor has the evidence produced against them proved
their offence beyond reasonable doubt. In light of the aforesaid
observations, the Trial Court has reached the conclusion that
the three appellant-accused persons are guilty of the aforesaid
offence and has convicted them accordingly while ;acquitting the
B
others, by judgment dated 17.09.2009. Further, after affording
an opportunity of hearing to the appellant-accused persons on
the question of sentence, the Trial Court has sentenced them
to death, by order dated 30.10.2009, relevant paragraphs of
which are reproduced as under:
c
"Heard both sides on the question of sentence on behalf
of the held guilty accused Bachcha Babu Rai, Jagat Rai,
Bipat Rai alias Deepak Rai, it has been submitted that
before this, they have not been punished in any case of
them Bipat Rai @ Deepak is a retired military personnel.
D
Keeping in mind, their age has also first conviction,
minimum of sentence may be inflicted.
On behalf of the prosecution it has been said that the
guilty held persons Bachcha Babu Rai, Jagat Rai, Bipat
E
Rai@ Deepak ~ai have committed a heinous offence and
their offence falls under the category of RARE OF
RAREST. Their heinous crime has ruined the informant of
this case, his wife and five children. So far Bipat Rai is
concerned, he is a retired military personnel his conduct
F
should be all the more decent. They are not of tender age
nor old. They do not deserve any mercy and they deserve
death sentence. In the light of the reasoning of both sides
as also on an appreciation, it is manifest, that the
occurrence is of night when the informant, his wife and five
G
minor children and cattle all have been burnt to death. The
informant also subsequently died in this way, the entire
family is ruined. In the light of the guidelines as given by
Hon'ble Supreme Court, this case falls under the heading
of RARE OF RAREST cases. Because of this the guilty
H
3'16
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A
held accused persons Bachcha Babu Rai, Jagat Rai and
Bipat Rai allias Deepak Rai are sentenced to death or
offence u/s 302/ 149 IPC .... "
7. Aggrieved by the aforesaid judgment and order, the
8 three appellant-accused persons filed appeals before the High
Court which were heard alongwith the Death Reference No. 6
of 2009 and disposed of by a common judgment and order,
dated 19.08.2010. The High Court has elaborately dealt with
the evidence on record and extensively discussed the judgment
and order of the Trial Court in order to ascertain the correctness
C
e>r otherwise of the conviction and sentence awarded to the
appellant-accused persons. The High Court has observed that
since, the informant is the only witness who was present at the
scene of crime, his testimony alone could substantiate upon the
specific role of accused persons in the commission of the
D
1ghastly offence. In so far as the identification of the appellantaccused persons, the High Court has observed that the
informant in the fardbeyan specifically mentions their names
and, infact, attributes specific roles to them in the commission
of the offence, i.e., A 1 commanding the house to be set on fire
E and lighting the matchstick to set the informant's mouth on fire
and later, when the informant was attempting to escape, A2
firing at the informant. Further, that during the commission of
the offence the accused persons were in close proximity to the
informant and the presence of dim light of bulb in the night and
F the illumination by flames of burning house coupled with them
being known to the informant establishes their identity in the
evidence of informant, which is supplemented and strengthened
by the evidence of PWs 1, 2, 3, 4, 5 and 6. The High Court
has further observed that the prosecution case in respect of the
G time and place of oc;;currence and the factum of accused
persons fleeing the spot of occurrence immediately after setting
the house on fire causing death of six persons by burning them
alive and injury to the informant has been well established by
cogent, reliable and unimpeachable eye-witnesses and further
H corroborated by the testimonies of the Doctors, post-mortem
DEEPAK RAI v. STATE OF BIHAR
317
[H.L. DATIU, J.]
report, medical report and the evidence of Investigating Officer. A
On the basis of the aforesaid, the High Court has concluded
towards the guilt of the accused appellants and sentenced them
as follows:
" ... since the occurrence is ghastly murder of wife and five 8
children of the informant by closing in room for not
withdrawing the case of theft of buffalo shocked the entire
community bringing the case in the category of rare of
rarest to attract the maximum punishment and hence the
reference is answered in the affirmative and I do not find
any merit in the two appeals and hence the appeals are C
dismissed ..... ."
8. Aggrieved by the aforesaid conviction and sentence, the
appellants are before us in these appeals. The appeals before
us are limited to the question of sentence.
D
Submissions:
9. We have heard Dr. Sumant Bharadwaj learned counsel
appearing for A2, Shri Ramesh Chandra Mishra, learned
counsel appearing for A 1 and A3 and Shri Nagendra Rai, E
learned senior counsel appearing for the respondent-State.
10. Dr. Bharadwaj would submit that the Courts below have
erred in sentencing A2 as the reasons recorded by the Courts
below do not conform to the statutory mandate prescribed under F
Section 354(3) of the Code of Criminal Procedure, 1973 (for
short 'the Code'), which require the judgment to record
"reasons" in case of sentence of life imprisonment and "special
reasons" in case of death sentence. He would submit that the
since no extraordinary reasons have been assigned by the G
Courts below to sentence the appellant to death instead of a
less harsher sentence and that this Court in appellate
jurisdiction ·cannot go into the same for the first time while
confirming the death sentence, the matter requires to be
remanded to the Trial Court for fresh consideration on the H
318
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A
question of sentence as per Section 354(3) of the Code.
Further, he would place reliance upon the judgments of this
Court in Ambaram v. State of M.P., (1976) 4 SCC 298, Ba/want
Singh v. State of Punjab, (1976) 1 SCC 425, Dagdu v. State
of Maharashtra, (1977) 3 SCC 68, Muniappan v. State of TN.,
B
(1981) 3 SCC 11 and Rajesh Kumar v. State, (2011) 13 SCC
~ms; wherein this Court has held that "special reasons" are
essential for awarding death sentence under Section 354(3) of
the Code and in absence of such reasons has commuted the
sentence passed by the Courts below from death to life
c imprisonment and submit that since, in the instant case, no
"special reasons" were recorded by the Courts below while
sentencing the appellants, the sentence of the appellants ought
to be commuted to life imprisonment.
11. Shri Mishra would assail the sentence awarded by the
D Trial Court and confirmed by the High Court and submit that in
the instant case mitigating circumstances overwhelmingly
outweigh the aggravating circumstances and therefore, ends of
justice would only be achieved by commuting the sentence of
the two appellant-accused persons, A 1 and A3, from death to
E
impri~onment for life. He would put forth the follpwing factors in
support of his submission:
F
G
H
"Mitigating Circumstances:
1.
Appellants are not hard core criminals,
2.
They are not threat/ menace to the Society,
3.
They have no criminal antecedent/ background,
4.
They are not antisocial elements,
5.
Their conduct in Jail has been satisfactory,
6.
The State has failed to prove that they are incapable
of being reformed
DEEPAK RAI v. STATE OF BIHAR
319
[H.L. DATTU, J.]
7.
They have been in Jail for about seven years,
A
8.
Delay of seven years in execution of death sentence
confirmed in death anticipating imminent death any
moment,
9.
Death sentence is exception and life-imprisonment 8
is rule,
10.
Global move to abolish death sentence. 138 nations
have abolished death sentence while 59 countries
including India have retained death sentence. c
(2009) 6 SCC 498.