# OMA @ OMPRAKASH AND ANR v. STATE OF TAMIL NADU

- **Citation:** [2012] 13 S.C.R. 740
- **Court:** Supreme Court of India
- **Decided:** 2012-12-11
- **Case number:** Criminal Appeal No.143 of 2007
- **Bench:** K.S. Radhakrishnan, Dipak Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/oma-omprakash-and-anr-v-state-of-tamil-nadu-28166
- **Pages:** 37

## Headnote

Penal Code, 1860 - ss. 395, 396 and 397 - Prosecution
under - Offences committed by the two appellants-accused
c with the nine absconding accused - Arrest of the appellants
(A 1 and A2) after 10 years in some other case - Conviction
by trial court and award of death sentence - High Court upheld
conviction, but altered the sentence to life imprisonment - The
appeal to this Court abated against A 1 due to his rJeath -
D Held: Prosecution failed to prove its case beyond reasonable
doubt so far as A2 is concerned - No Tl Parade was conducted
in respect of A2 and the witnesses could not properly identify
him in the court - The recovery of the weapon stated to be at
the instance of A2 cannot be connected to the crime - Hence
E his conviction and sentence not correct.
Sentence/Sentencing - Award of death sentence -
Propriety of - Held: Clear reasoning and analysis are the
basic requirements in a judicial decision - Criminal courts to
decide the cases, examining the relevant facts and evidence
F placed before them, applying binding precedents - Opinions
of Judges or academicians, predilection, fondness,
inclination, proclivity on any subject, however eminent they
are, shall not influence a decision making process - The
manner in which death sentence was awarded in the instant
G case, is in complete disregard of the tests laid down by
Supreme Court in awarding death sentence -The special
reasons which weighed with the trial court to award the death
sentence exposes the ignorance of the trial Judge of the
H
criminal jurisprudence of India - He needs fine tuning and
740
OMA @ OMPRAKASH AND ANR. v. STATE OF
741
TAMIL NADU
proper training - National Judicial Academy and State Judicial A
Academies should educate the judicial officers in this regard
so that they do not commit such serious e"ors in future -
Judgment.
The prosecution case was that the appellants and
8
nine other absconding accused entered the house of PW
2, armed with iron rods, with the intention of committing
burglary. In the process of burglary, they killed husband
of PW2, by strangulating him with a rope and also
assaulted PW2, PWS, PW6 and PW1 with iron rod.
C
Appellants (A1 and A2) were apprehended after a period
of ten years, in connection with some other case and
nine other accused persons are still absconding. An
identification parade was conducted in respect of A1, but
not in respect of A-2. Pursuant to a disclosure made by
A-2, the iron rod used 1 O years back, was recovered. The
D
trial court found them guilty u/ss. 395, 396 and 397 IPC
and sentenced them to death for offences committed u/
s. 396 IPC. The High Court confirmed the conviction but
modified the sentence u/s. 396 IPC to that of life
imprisonment. During pendency of the appeal before this
E
Court, A-1 died and the appeal against him abated.
Allowing the appeal, the Court
HELD:
F
Per K.S. Radhakrishnan:
1.1 The prosecution could not establish the guilt of
the second accused beyond reasonable doubt. The High
Court, therefore, committed a gross error in awarding life
G
sentence to A2. The conviction and sentence awarded
to A-2 is set aside. [Paras 38 and 39) [764-E-F]
1.2 In the instant case, FIR was registered against
unknown persons. A2 was arrested after ten years in
H
742
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A connection with some other crime. PW1 and PW2 could
not have identified A2 in the court at that distance of time.
They were guided by the photographs repeatedly shown
by the police. Evidently, the witnesses did not know the
accused earlier, hence the accused could be identified
B only through a test identification parade which was not
done in this case, so far as A-2 is concerned. A-2 was not
named in the FIR, nor any identification parade was
conducted to identify him by the witnesses. It is rather
impossible to identify the accused person when he is
c produced for the first time in the court i.e. after ten years
since he was unknown to the witnesses. It is a glaring
defect which goes to the r

## Text

_Characters 0–39,986 of 70,111. This is a partial read: ask again with offset=39986 for what follows._

[2012] 13 S.C.R. 740
A
OMA @ OMPRAKASH AND ANR.
B
v.
STATE OF TAMIL NADU
(Criminal Appeal No.143 of 2007)
DECEMBER 11, 2012
[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]
Penal Code, 1860 - ss. 395, 396 and 397 - Prosecution
under - Offences committed by the two appellants-accused
c with the nine absconding accused - Arrest of the appellants
(A 1 and A2) after 10 years in some other case - Conviction
by trial court and award of death sentence - High Court upheld
conviction, but altered the sentence to life imprisonment - The
appeal to this Court abated against A 1 due to his rJeath -
D Held: Prosecution failed to prove its case beyond reasonable
doubt so far as A2 is concerned - No Tl Parade was conducted
in respect of A2 and the witnesses could not properly identify
him in the court - The recovery of the weapon stated to be at
the instance of A2 cannot be connected to the crime - Hence
E his conviction and sentence not correct.
Sentence/Sentencing - Award of death sentence -
Propriety of - Held: Clear reasoning and analysis are the
basic requirements in a judicial decision - Criminal courts to
decide the cases, examining the relevant facts and evidence
F placed before them, applying binding precedents - Opinions
of Judges or academicians, predilection, fondness,
inclination, proclivity on any subject, however eminent they
are, shall not influence a decision making process - The
manner in which death sentence was awarded in the instant
G case, is in complete disregard of the tests laid down by
Supreme Court in awarding death sentence -The special
reasons which weighed with the trial court to award the death
sentence exposes the ignorance of the trial Judge of the
H
criminal jurisprudence of India - He needs fine tuning and
740
OMA @ OMPRAKASH AND ANR. v. STATE OF
741
TAMIL NADU
proper training - National Judicial Academy and State Judicial A
Academies should educate the judicial officers in this regard
so that they do not commit such serious e"ors in future -
Judgment.
The prosecution case was that the appellants and
8
nine other absconding accused entered the house of PW
2, armed with iron rods, with the intention of committing
burglary. In the process of burglary, they killed husband
of PW2, by strangulating him with a rope and also
assaulted PW2, PWS, PW6 and PW1 with iron rod.
C
Appellants (A1 and A2) were apprehended after a period
of ten years, in connection with some other case and
nine other accused persons are still absconding. An
identification parade was conducted in respect of A1, but
not in respect of A-2. Pursuant to a disclosure made by
A-2, the iron rod used 1 O years back, was recovered. The
D
trial court found them guilty u/ss. 395, 396 and 397 IPC
and sentenced them to death for offences committed u/
s. 396 IPC. The High Court confirmed the conviction but
modified the sentence u/s. 396 IPC to that of life
imprisonment. During pendency of the appeal before this
E
Court, A-1 died and the appeal against him abated.
Allowing the appeal, the Court
HELD:
F
Per K.S. Radhakrishnan:
1.1 The prosecution could not establish the guilt of
the second accused beyond reasonable doubt. The High
Court, therefore, committed a gross error in awarding life
G
sentence to A2. The conviction and sentence awarded
to A-2 is set aside. [Paras 38 and 39) [764-E-F]
1.2 In the instant case, FIR was registered against
unknown persons. A2 was arrested after ten years in
H
742
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A connection with some other crime. PW1 and PW2 could
not have identified A2 in the court at that distance of time.
They were guided by the photographs repeatedly shown
by the police. Evidently, the witnesses did not know the
accused earlier, hence the accused could be identified
B only through a test identification parade which was not
done in this case, so far as A-2 is concerned. A-2 was not
named in the FIR, nor any identification parade was
conducted to identify him by the witnesses. It is rather
impossible to identify the accused person when he is
c produced for the first time in the court i.e. after ten years
since he was unknown to the witnesses. It is a glaring
defect which goes to the root of the case since none of
the witnesses had properly identified the accused. [Paras
30, 31 and 35] [761-F-H; 763-D-E]
D
Mohd. Iqbal M. Shaikh v. State of Maharashtra (1998) 4
SCC 494: 1998 (2) SCR 734; Ravindra Alias Ravi Bansi
Gohar v. State of Maharashtra and Ors. (1998) 6 SCC 609:
1998 (3) SCR 978; Ravi alias Ravichandran v. State
represented by Inspector of Police (2007) 15 SCC 372: 2007
E (5) SCR 766 - relied on.
1.3 It is the case of prosecution that one rod was also
used for the murder of the deceased persons in this case,
but that rod was not recovered. One rod stated to have
F been recovered at the instance of A2 could not be
connected with the crime. PW 5 in his examination-in-chief
had stated that the accused had attacked him with a similar
rod that was being shown to him which would indicate
that the witness could not conclusively connect the rod
G which was used for committing the crime. Further, the
rod was recovered after a period of ten years of the
incident and it is highly doubtful, whether it was used for
the commission of the offence. Further, the prosecution
case is that a rope was used for the strangulation of the
H deceased, but the rope was not recovered. It is for the
OMA@ OMPRAKASH AND ANR. v. STATE OF
743
TAMIL NADU
prosecution to prove that the object recovered has nexus
A
with the crime. In the instant case, the prosecution could
not prove that the rod recovered had any nexus with the
crime alleged to have been committed by A-2. [Paras 36,
37 and 38] [763-F-H; 764-A-E]
Dwarkadas Gehanmal v. State of Gujarat (1999) 1 SCC
B
57; Mustkeem alias Sirajudeen v. State of Rajasthan (2011)
11 SCC 724: 2011 (9) SCR 101 • relied on.
2.1 The manner in which Sessions Court has
awarded death sentence in the instant case, is in C
complete disregard of the tests laid down by this Court
for determining the rarest of rare cases. The Sessions
Court had gone astray in referring to the views expressed
by the then Chief Justice of Madras High Court in a
lecture, which advice according to the Sessions Judge o
was taken note of by another Judge in delivering a
judgment in 'rowdy panchayat system'. The trial Judge
has not given the citation of that judgment nor has he
given any explanation, as to how that judgment is
applicable to the instant case. Thus the Court is not in a
position to know how that judgment is relevant or
applicable in awarding death sentence. The casual
approach made by the Sessions Court in awarding the
death sentence is disturbing. The special reasons which
weighed with the Sessions Judge to award the death
sentence exposes the ignorance of the Judge of the
criminal jurisprudence of this country. The 'special
reasons' was only predilection or inclination of the trial
Judge to award death sentence, thus purely judgecentric. He has not discussed the aggravating or
mitigating circumstances of this case, the approach was
G
purely 'crime-centric'. The trial Judge while importing the
criminal jurisprudence of America or the Arab countries
lost sight of the fact that the Criminal Jurisprudence of
India or Indian society does not recognize those types
E
F
H
744
SUPREME COURT REPORTS
(2012] 13 S.C.R.
A of barbaric sentences. The trial Judge has adopted a
very strange reasoning by saying that since the accused
persons had come from a far-away State, about 2000 km
to "our state" for committing robbery and murder, death
sentence would be imposed on them. He needs fine
B tuning and proper training. The trial Judge is also not
correct in opining that the imposition of death sentence
u/s. 396 IPC is the only weapon in the hands of judiciary
under the prevailing law to help to eliminate the crime.
Judiciary has neither any weapon in its hands nor uses
C it to eliminate crimes. Duty of the Judge is to decide
cases which come before him in accordance with the
Constitution and laws, following the settled judicial
precedents. A Judge is also part of the society where he
lives and also conscious of what is going on in the
society. Judge has no weapon or sword. Judge's
D greatest strength is the trust and confidence of the
people, whom he serves. [Paras 12, 13, 14, 15, 16, 17, 18
and 19] [753-H, 754-A-C; 756-G-H; 757-A-F; 758-0-F]
Bachan Singh v. State of Punjab (1980) 2 SCC 684;
E Machhi Singh and Ors. v. State of Punjab (1983) 3 SCC 470:
1983 (3) SCR 413; Jagmohan Singh v. State of U.P. (1973)
1 SCC 20: 1973 (2) SCR 541; Rona/ James v. State of
Maharashtra (1998) 3 SCC 625: 1998 (2) SCR 162;
Allauddin Mian v. State of Bihar (1989) 3 SCC 5: 1989 (2)
F SCR 498; Naresh Giri v. State of M.P. (2001) 9 SCC 615:
2001 (4) Suppl. SCR 298- relied on.
William Henry Furman v. State of Georgia 408 U.S. 238
(1972); Gregg v. Georgia 428 U.S. 153 (1976) - referred to.
G
2.2 Clear reasoning and analysis are the basic
H
requirements in a judicial decision. Judicial decision is
being perceived by the parties and by the society in
general as being the result of a correct application of the
legal rules, proper evaluation of facts based on settled
OMA@ OMPRAKASH AND ANR. v. STATE OF
745
TAMIL NADU
judicial precedents and judge shall not do anything which
A
will undermine the faith of the people. [Para 19) [758-F-G]
2.3 Criminal Court while deciding criminal cases shall
not be guided or influenced by the views or opinions
expressed by Judges on a private platform. The views
8
or opinions expressed by the Judges, jurists,
academicians, law teachers may be food for thought.
Even the discussions or deliberations made on the State
Judicial Academies or National Judicial Academy, only
update or open new vistas of knowledge of judicial
officers. Criminal Courts have to decide the cases before
C
them, examining the relevant facts and evidence placed
before them, applying binding precedents. Judges or
academicians opinions, predilection, fondness,
inclination, proclivity on any subject, however eminent
they are, shall not influence a decision making process,
D
especially when judges are called upon to decide a
criminal case which rests only on the evidence adduced
by the prosecution as well as by the defence and guided .
by settled judicial precedents. National Judicial Academy
and State Judicial Academies should educate the judicial
E
officers in this regard so that they will not commit such
serious errors in future. [Para 21) [759-B-E]
Per Dipak Misra: (Concurring):
1. This Court, on number of occasions, has dealt
with under what circumstances death penalty could be
imposed and what are the mitigating factors not to
impose such punishment. Article 141 of the Constitution
F
of India stipulates that the law declared by the Supreme
Court shall be binding on all Courts within the territory G
of India. The reasons ascribed by the trial Judge are
required to be tested on the bedrock of precedents in their
conceptual and perceptual eventuality. [Paras 2 and 15]
[765-B; 772-E]
H
746
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A
Bachan Singh v. State of Punjab (1980) 2 SCC 684;
Jagmohan Singh v. State of U.P. (1973) 1 SCC 20: 1973 (2)
SCR 541; Gurbaksh Singh Sibbia v. State of Punjab (1980)
2 sec 565: 1980 (3) SCR 383- followed.
8
Machhi Singh and Others v. State of Punjab (1983) 3
SCC 470: 1983 (3) SCR 413; Lehna v. State of Haryana
(2002) 3 SCC 76: 2002 (1) SCR 377; Haresh Mohandas
Rajput v State of Maharshtra (2011) 12 SCC 56: 2011 (14)
SCR 921 ; Sham Alias Kishore Bhaskarrao Matkari v. State
C of Maharashtra (2011) 10 SCC 389: 2011 (11) SCR 744;
Mohammed Ajma/ Mohammad Amir Kasab alias Abu
Mujahid v. State of Maharashtra (2012) 9 SCC 1· relied on.
C. Muniappan v. State of T.N. (2010) 9 SCC 567: 2010
(10) SCR 262 Dara Singh v. Republic of India (2011) 2 SCC
D 490: 2011 (1) SCR 929; Surendra Kofi v. State of U.P. (2011)
4 SCC 80: 2011 (2) SCR 939; Mohd. Mannan v. State of
Bihar (2011) 5 SCC 509: 2011 (7) SCR 354; Sudam v. State
of Maharashtra (2011) 7 SCC 125: 2011 (6) SCR 1104 •
referred to.
E
2. In the instant case, the trial Judge referred to the
prevalence of death sentence In certain countries and
observed that in certain countries where law provides
"slashing", "beheading", "taking the organ for organ"
F like 'eye for eye', 'tooth for tooth' to the accused, It shows
the growth of criminal jurisprudence. That apart, he had
referred to the speech of the then Chief Justice of the
High Court, and It Is clearly demonstrable that the same
has Influenced his appreciation, analysis and perception.
Being Influenced by the erroneous notions of law and
G speech of the Chief Justice, may be understanding It
totally out of context, his passion and prejudices have
dominated over his reasoning faculties and the result, Is
devastating. [Para 16] [772-F-H; 773-A]
H
3. A Judge presiding over a criminal trial has the
OMA@ OMPRAKASH AND ANR. v. STATE OF
747
TAMIL NADU
sacrosanct duty to demonstrate that he applies the A
correct principles of law to the facts regard being had to
the precedents in the field. A Judge trying a criminal case
has a sacred duty to appreciate the evidence in a seemly
manner and is not to be governed by any kind of
individual philosophy, abstract concepts, conjectures
B
and surmises and should never be influenced by some
observations or speeches made in certain quarters of the
society but not in binding judicial precedents. He should
entirely ostracise prejudice and bias. The bias need not
be personal but may be an opinionated bias. It is his c
obligation to understand and appreciate the case of the
prosecution and the plea of the defense In proper
perspective, address to the points Involved for
determination and consider the material and evidence
brought on record to substantiate the allegations and
0
record his reasons with sobriety sans emotion. He must
constantly keep in mind that every citizen of this country
Is entitled to a fair trial and further If a conviction Is
recorded It has to be based on the guided parameters of
law. [Paras 17 and 18) [773-e-G]
Hindustan Times Ltd. v. Union of India and Ors. (1998)
2 sec 242: 1998 (1) SeR 4; State of W. B. Ors. v. Shivanand
Pathak and Ors. (1998) 5 sec 513: 1998 (1) SeR 811 -
relied on.
4. When sentence Is Imposed, It has to be based on
sound legal principles, regard being had to the command
E
F
of the statute, nature of the offence, collective cry and
anguish of the victims and, above all, the "collectlve
conscience" and doctrine of proportionality. Neither the
G
vanity of tho Judge, nor his pride of learning In other
flelds should Influence his decision or Imposition of
sentence. He must practise the conscience of lntellectunl
honesty and deal with the matter with all the experience
and humility at his command. He should remind himself H
748
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A that some learning does not educate a man and definitely
not a Judge. The learning has to be applied with
conviction which is based on proper rationale and
without forgetting that human nature has imperfect
expression when founded bereft of legal principle. He
B should not usher in his individual satisfaction but
adjudge on objective parameters failing which the whole
exercise is likely to be named "monstrous legalism". He
should not be swayed away with any kind of sensational
aspect and individual predilections. If it is done, the same
c would tantamount to entering into an area of emotional
labyrinth or arena of mercurial syllogism. [Paras 18 and
19) [774-A-D; 775-0)
5. In a criminal trial, while recording the sentence, he
should have been guided and governed by established .
D principles and not by personal notions or even ideas of
eminent personalities Binding judgments should be the
Bible of a Judge and there should not be any deviation.
The trial court judges should refrain themselves from
engaging in innovative creativity or "borrowed creativity"
E which has no sanction in Law. [Para 20) [775-H; 776-A-B]
Case Law Reference:
In the judgment of K.S. Radhakrishnan, J.:
F
(1980) 2 sec 684
relied on
Para 12
1983 (3) SCR 413
relied on
Para 12
1973 (2) SCR 541
relied on
Para 12
1998 (2) SCR 162
relied on
Para 14
G
1989 (2) SCR 498
relied on
Para 14
2001 (4) Suppl. SCR 298 relied on
Para 14
408 U.S. 238 (1972)
referred to
Para 16
H
428 U.S. 153 (1976)
referred to
Para 16
OMA @ OMPRAKASH AND ANR. v. STATE OF
749
TAMIL NADU
1998 (2) SCR 734
relied on
Para 31
A
1998 (3) SCR 978
relied on
Para 32
2007 (5) SCR 766
relied on
Para 33
(1999) 1 sec 57
relied on
Para 36
B
2011 (9) SCR 101
relied on
Para 36
In the judgment of Dipak Misra, J. :
(1980) 2 sec 684
followed
Para 3
c
1973 (2) SCR 541
followed
Para 3
1980 (3) SCR 383
followed
Para 5
1983 (3) SCR 413
relied on
Para 7
2002 (1) SCR 377
relied on
Para 11
D
2011 (14) SCR 921
relied on
Para 12
2011 (11) SCR 744
referred to
Para 12
2010 (10) SCR 262
referred to
Para 12
E
2011 (1) SCR 929
referred to
Para 12
2011 (2 ) SCR 939
referred to
Para 12
2011 (7) SCR 354
referred to
Para 12
F
2011 (11) SCR 744
relied on
Para 13
2011 (6) SCR 1104
relied on
Para 14
1998 (1) SCR 4
relied on
Para 17
1998 (1) SCR 811
relied on
Para 19
G
CRIMINAL APPELLATE JURISDICTION : CRIMINAL
APPEAL NO. 143 OF 2007.
From the Judgment and Order dated 27.07.2006 of the
H
750
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A High Court of Judicature at Madras in Criminal Appeal No. 566
of 2006.
Sanjay Jain, Sudhakar Kulwant, Rachna Golcha, Afshan
Pracha for the Appellants.
8
C. Paramasivam, M. Yogesh Kanna (for B. Balaji) for the
Respondent.
The Judgments of the Court was delivered by
K.S. RADHAKRISHNAN, J. 1. Appellants, herein, were
awarded death sentence by the trial court after having found
C them guilty under Sections 395, 396 and 397 of Indian Penal
Code (for short 'IPC'). They were sentenced to death by
hanging under subsection 5 of Section 354 of Criminal
Procedure Code for offences committed under Section 396
IPC. The trial court after noticing that, the accused persons
D came from a State about 2000 k.m. away from Tamil Nadu, held
E
F
as follows:
"In this case, the accused came from a state about 2000
k.m. from our state and they did not think that the victims
were also human like them but they thought only about the
well being of their family and their own life and committed
the fear of death amongst the common public of our state
by committing robbery and murder for about 11 years.
Therefore, this court is of the opinion that the death
sentence that would be imposed on them would create a
fear amongst the criminals who commit such crime and
further this case is a rarest of rare case that calls for the
imposition of death sentence."
2. We have noticed that the trial Court, among other
G grounds, was also influenced by a speech made by the then
Chief Justice of Tamil Nadu as well as a judgment delivered
by another learned Judge of Madras High Court on rowdy
panchayat system. Following that judgment and the provision
under Section 396 IPC, the trial court held that the accused
H deserves no sympathy and he be sent to the gallows.
OMA @ OMPRAKASH AND ANR. v. STATE OF
751
TAMIL NADU [K.S. RADHAKRISHNAN, J.]
3. The trial court then placed the matter before the Madras
A
High Court for confirmation of the death sentence awarded to
the accused persons. Meanwhile, the accused persons also
preferred criminal appeal No. 566 of 2006 against the award
of death sentence. The appeal was partly allowed and
conviction against Accused Nos. 1 and 2 under Sections 395,
B
396 and 397 IPC were confirmed but the sentence under
Section 396 IPC was modified to that of life imprisonment
instead of death sentence. Against which, accused Nos. 1 and
2 came up with this appeal. While this appeal was pending,
the first appellant (A 1) died and the second appellant (A2) has c
prosecuted this appeal.
4. The prosecution case is as follows:
The appellants and nine other absconding accused
persons entered the house of one Lakshmi (PW 2) at 1
O' clock in the night of 07 .06.1995 with the intention of D
committing burglary with iron rods in their hands and
burgled 17 tolas of gold and Rs.5,000/- in cash. In that
process, it was alleged that they had strangulated Doctor
Mohan Kumar, husband of PW 2 with a rope and thereby
killed him. It was alleged that the accused assaulted PW
E
2, her son Sudhakar (PW 5) and other son Sakthivel (PW
6). While escaping, they had also attacked Bormin
Varghese (PW 1) with iron rod. FIR Cr. No. 403of1995
under Sections 396, 397 IPC was registered at 5.30 am
on 07.06.1995 at Police Station Walajapet on the
F
statement of one Patrick Varghese recorded by PW 7.
Post Mortem of the deceased was conducted at 2.30 p.m.
on 07.06.1995.
5. The prosecution could not nab the accused persons for
over ten years. A2 was arrested on 26.02.2005 in connection
G
with some other case in Cr. No. 59 of 1996. It is the
prosecution case that his finger prints tallied with the ones lifted
from the place of occurrence in that other case. Further, it was
also stated, as per the investigation, A2 made a disclosure and
pursuant to that the iron rod (M.O. 1) used 10 years back was
H
752
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A recovered.
6. A 1 was arrested on 21.09.2005 by the special team in
connection with some other case in Cr. No. 352 of 2004 of Sri
Perumbatoor Police Station. An identification parade was
conducted so far as A1 is concerned on 20.10.2005 in which
B PW 10, Karthik an Auto Driver said to have identified A 1.
Later, the charge-sheet was filed by PW 15 on 23.12.2005 and
charges under Sections 395, 396 and 397 IPC were framed
against the accused persons on 24.03.2006.
C
7. The prosecution examined 15 witnesses to prove the
case against the accused persons. Statements of the accused
persons were recorded under Section 313 Cr.P .C. on
17.04.2006.
8. The trial court, as already indicated, convicted both the
o accused persons on 21.04.2006 for the offences under
Sections 395, 396 and 397 IPC. The trial court granted life
imprisonment under Section 395 and fine of Rs.1,000/- and
they were sentenced to death for the offence under Section 396
IPC. They were also sentenced for RI for 7 years under Section
E 397 IPC.
F
9. The High Court, as already indicated, vide judgment
dated 27.07.2006 converted the sentence of death to life
imprisonment under Section 396 IPC and rest of the sentence
on other heads were confirmed.
10. Shri Sanjay Jain, learned counsel appearing for the
appellant (A2) submitted that the trial court and the High Court
had committed a grave error in convicting the accused persons.
Learned counsel challenged his conviction mainly on two
grounds: one on the ground of non-conducting the identification
G parade so far as accused No.2 is concerned and other on the
ground of recovery of alleged iron rod. Learned counsel
submitted that A2 was arrested after ten years of incident and
was not properly identified by any of the witnesses. Learned
counsel also highlighted the contradictions in the evidence of
H PW1, PW2 and PW15 and brought out the lacuna in the
OMA @ OMPRAKASH AND ANR. v. STATE OF
753
TAMIL NADU [K.S. RADHAKRISHNAN, J.]
evidence of those witnesses. It was pointed out that the
A
identification parade was conducted only in respect of A 1 who
is no more and so far as A2 is concerned, no identification
parade was conducted. Further, it was pointed out that the
photograph of the appellant was shown to PW 1 which was
marked with the objection of the accused. Further, learned
B
counsel pointed out that none of the witnesses in their
deposition had stated that they could identify A2. Learned
counsel pointed out that it was the prosecution case that a rod
was used for committing the crime but was not recovered and
the one alleged to have recovered had nothing to do with the c
crime. Learned counsel submitted that the prosecution
miserably failed to prove the case against the appellant beyond
reasonable doubt and that this is a fit case where this Court
should have given the benefit of doubt and the accused be
acquitted.
D
11. Shri C. Paramasivam, learned counsel appearing for
the State submitted that the High Court has rightly confirmed
the conviction of the appellant and reduced the sentence to life
imprisonment. Learned counsel submitted that there is no fixed
rule with regard to the period within which test identification
E
parade be held. Further, it was pointed out that no motive was
alleged against the prosecution for the delay in conducting test
identification parade. Learned counsel also submitted that
even in the absence of test identification parade, the
identification of accused persons by the witnesses in court is
F
a substantive piece of evidence. Further, it was also pointed
out that the gang of dacoits from Haryana and Rajasthan States
used to come down to state of Tamil Nadu and commits
heinous crimes like dacoity and murder and after arrest of those
accused persons, several undetected cases could be detected
G
and few of the accused persons have been convicted. Learned
counsel submitted that the trial court and the High Court have
rightly convicted the accused persons relying on the evidence
of PW 1, PW 2, PW 5 and PW 10.
12. We are unhappy in the manner in which Sessions Court
H
754
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A has awarded death sentence in the instant case. The tests laid
down by this Court for determining the rarest of rare cases in
Bachan Singh v. State of Punjab (1980) 2 SCC 684 and
Machhi Singh & Ors. v. State of Punjab (1983) 3 SCC 470
and other related decisions like Jagmohan Singh v. State of
B U.P. (1973) 1 sec 20, were completely overlooked by the
Sessions Court. The Sessions Court had gone astray in
referring to the views expressed by the then Chief Justice of
Madras in a lecture delivered at Madurai, which advice
according to the Sessions Judge was taken note of by another
c learned Judge in delivering a judgment in rowdy panchayat
system. Sessions Judge has stated that he took into
consideration that judgment and the provision in Section 396
of the Indian Penal Code to hold that the accused had
1
committed the murder and deserved death sentence. Further,
0 the trial court had also opined that the imposition of death
sentence under Section 396 IPC is the only weapon in the
hands of the judiciary under the prevailing law to help to
eliminate the crime and the judgment of the trial court should
be on that ground.
E
13. It is apposite to refer to the special reasons which
weighed with the Sessions Judge to award the death sentence
which reads as follows:
"36. In this case, it has been decided by this court to
impose the maximum sentence of death to be imposed
F
on the accused No. 1 and 2, under Section 396 of the
Indian Penal Code, under Section 354(3) of the Criminal
Procedure Code, the special reasons for awarding such
sentence to be given show that the case is a case of rarest
of rare cases. Therefore, this court gives the following
G
reasons:
(a) xxx
xxx
xxx
(b) Before the enactment of Criminal Procedure
Code, many years ago, civilization has come into
H
existence. From the rule of Kingdom to the rule of people
OMA @ OMPRAKASH AND ANR. v. STATE OF
755
TAMIL NADU [K.S. RADHAKRISHNAN, J.]
and the democracy and constitution came into existence
A
in many countries.
In these circumstances, the death
sentence is prevailing in all the countries in different from
and that sentence is imposed on such criminal who
deserves for the same. We all know that more particularly
in the court in like America, the sentence like 'lynching' has
B
attained the legal form and given to the deserving criminals
and in Arab countries the law provide for imposing
sentence like 'slashing', 'beheading' taking the organ for
organ like 'eye for eye', 'tooth for tooth'. The above
mentioned facts are the development of criminal c
jurisprudence. Therefore, this court is of the opinion that
it is proper to impose death sentence to the accused in
this case.
(c) xxx
(d) xxx
xxx
xxx
xxx
xxx
(e) In this case, the accused came from a State
about 2000 k.m. from our State and they did not think that
D
the victims were also human like them but they thought only
about the wellbeing of their family and their own life and
E
committed the fear of death amongst the common public
of our State by committing robbery and murder for about
11 years. Therefore, this court is of the opinion that the
death sentence that would be imposed on them would
create a fear amongst the criminals who commit such
F
crime and further this case is a rarest of rare cases that
call for the imposition of death sentence.
(f) The honorable Chief Justice of High Court of
Madras, Justice A. P. Shah while delivering a lecture at
Madurai said strict laws should be enacted as regard to
G
Child abuse and the persons committing the crime should
be punished accordingly. This advise was taken note of
the honorable Justice Karpagavinayagm while delivering
a judgment on rowdy panchayat system. He ordered that
the government should enact suitable law to eliminate this
H
A
B
c
756
SUPREME COURT REPORTS
[2012] 13 S.C.R.
menace. Taking this judgment into consideration and that
there is a provision in Section 396 of the Indian Penal
Code that the people involved in dacoity can be imposed
with death sentence, the accused who have committed the
murder without any pity deserve to be imposed with the
death sentence. This court is also of the opinion that the
imposition of death sentence under Section 396 of the
Indian Penal Code is the only weapon in the hands of the
judiciary under the prevailing law to help to eliminate the
crime. Accordingly this judgment should be. Therefore,
this court is of the view that the death sentence should be
imposed on the accused."
(emphasis added)
14. We cannot countenance any of the reasons which
0 . weighed with the Sessions Judge in awarding the death
sentence. Reasons stated in para 36(b) and (e) in awarding
death sentence in this case exposes the ignorance of the
learned judge of the criminal jurisprudence of this country.
15. Section 354(3) of the Code states whenever a Court
E awards death sentence, it shall record special reasons. Going
by the current penological thought, imprisonment of life is the
rule and death sentence is an exception. The legislator's intent
behind enacting Section 354(3) clearly demonstrates the
concern of the legislature. This principle has been highlighted
F in several judgments of this Court apart from the judgments
already referred to. Reference may also be made to few of
the judgments of this Court, such as Rona/ James v. State of
Maharashtra, (1998) 3 SCC 625; Allauddin Mian v. State of
Bihar, (1989) 3 SCC 5; Naresh Giri v. State of M.P., (2001) 9
sec 615 etc. We are disturbed by the casual approach made
G by the Sessions Court in awarding the death sentence. The
'special reasons' weighed with the trial judge to say the least,
was only one's predilection or inclination to award death
sentence, purely judge-centric. Learned judge has not
discussed the aggravating or mitigating circumstances of this
H case, the approach was purely 'crime-centric'.
OMA @ OMPRAKASH AND ANR. v. STATE OF
757
TAMIL NADU [K.S. RADHAKRISHNAN, J.]
16. We are really surprised to note the "special reasons"
A
stated by the trial judge in para 36(b) of the judgment. We fail
to see why we import the criminal jurisprudence of America or
the Arab countries to our system. Learned trial judge speaks
B
of sentence like "lynching" and described that it has attained
legal form in America. Lynching means kill someone for an
alleged offence without a legal trial, especially by hanging.
Learned judge failed to note that the constitutionality of death
sentence came up for consideration before the U.S. Supreme
Court in William Henry Furman v. State of Georgia 408 U.S.
238 (1972), which involved three persons under death c
sentence, more than 600 prisoners on death row. Five Judges
invalidated the death penalty, four dissented and the Court held
that death penalty to be cruel and unusual punishment in
violation of the 8th and 14th amendments. Later in Gregg v.
Georgia [ 428 U.S. 153 (1976)], the court laid down the concern
0
expressed in Furman. In the United States, some States have
done away with death sentence as well. The judges' inclination
to bring in alleged system of lynching to India and to show it as
special reason is unfortunate and shows lack of exposure to
criminal laws of this country.
Learned trial judge while showing
special reasons referred to law prevailing in Arab countries,
like imposing sentence of 'slashning' beheading, taking organ
for organ like"eye for eye", "tooth for tooth" and says those are
the developments of criminal jurisprudence. Learned judge then
says that the accused persons in the present case also deserve
death sentence. Learned judge lost sight of the fact that the
Criminal Jurisprudence of this country or our society does not
recognize those types of barbaric sentences. We are surprised
to see how those factors have gone into one's mind in awarding
death sentence.
17. We are also not concerned with the question whether
the criminals have come from 20 km away or 2000 km away.
Learned judge says that they have come to "our state", forgetting
the fact that there is nothing like 'our state' or 'your state'. Such
parochial attitude shall not influence or sway a judicial mind.
E
F
G
H
758
SUPREME COURT REPORTS
[2012) 13 S.C.R.
A Learned judge has further stated, since the accused persons
had come from a far away state, about 2000 km to "our state"
for committing robbery and murder, death sentence would be
imposed on them. Learned judge has adopted a very strange
B
reasoning, needs fine tuning and proper training ..
18. Learned trial judge in para 36(f} has also referred to a
judgment of the High Court rendered by a learned Judge of the
High Court on "rowdy panchayat system". Learned trial judge
has stated that he has taken into consideration that judgment
also in reaching the conclusion that death senten'ce be
C awarded. We are not in a position to know how that judgment
is relevant or applicable in awarding death sentence. Learned
trial judge has also not given the citation of that judgment or
has given any explanation, as to how that judgment is applicable ·
to the case on hand.
D
19. Learned trial judge has also opined that the imposition
of death sentence under Section 396 of the IPC is the only
weapon in the hands of judiciary under the prevailing law to help
to eliminate the crime. Judiciary has neither any weapon in its
hands nor uses it to eliminate crimes. Duty of the judge is to
E decide cases which come before him in accordance with the
constitution and laws, following the settled judicial precedents.
A Judge is also part of the society where he lives and also
conscious of what is going on in the society. Judge has no
weapon or sword. Judge's greatest strength is the trust and
F confidence of the people, whom he serves. We may point out
that clear reasoning and analysis are the basic requirements
in a judicial decision. Judicial decision is being perceived by
the parties and by the society in general as being the result of
a correct application of the legal rules, proper evaluation of facts
G based on settled judicial precedents and judge shall not do
anything which will undermine the faith of the people.
20. We also fail to see how the reasons stated in para 36(f}
be a guiding factor to award death sentence. One of the Code
of Conduct recognized at the Bangalore Conference of the year
H 2001 reads as follows:
OMA @ OMPRAKASH AND ANR. v. STATE OF
759
TAMIL NADU [K.S. RADHAKRISHNAN, J.]
"A judge shall exercise the judicial function independently
A
on the basis of the judge's assessment of the facts and in
accordance with a conscientious understanding of the law,
free of any extraneous influences, inducement, pressures,
threats or interference, direct or indirect, from any quarter
or for any reason."
B
21. Criminal Court while deciding criminal cases shall not
be guided or influenced by the views or opinions expressed by
Judges on a private platform. The views or opinions expressed
by the Judges, jurists, academicians, law teachers may be food
for thought. Even the discussions or deliberations made on the
C
State Judicial Academies or National Judicial Academy at
Bhopal, only update or open new vistas of knowledge of judicial
officers. Criminal Courts have to decide the cases before them
examining the relevant facts and evidence placed before them,
applying binding precedents. Judges or academicians opinions,
D
predilection, fondness, inclination, proclivity on any subject,
however eminent they are, shall not influence a decision
making process, especially when judges are called upon to
decide a criminal case which rests only on the evidence
adduced by the prosecution as well as by the defence and
E
guided by settled judicial precedents. National Judicial
Academy and State Judicial Academies should educate our
judicial officers in this regard so that they will not commit such
serious errors in future.
22. The High Court of Madras heard the Criminal Appeal
F
No. 566/2006 filed by the accused Nos. 1 and 2, along with
Referred Trial 1 of 2006. The High Court, however, did not
confirm the death sentence awarded by the trial Court, but
awarded life sentence to both the accused persons. As already
indicated, we are, in this case, concerned only with the
G
conviction and sentence awarded on the 2nd accused, since
1st accused is no more.
23. We may indicate at the outset that the accused
persons were apprehended after a period of ten years from the
date of the incident and nine other accused persons are still
H
760
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A absconding. The incident had taken place on 07.06.1995 and
the accused persons were arrested on 26.02.2005 from
Rajasthan in connection with some other case ie. Cr. No. 59
of 1996. The prosecution version that A-2 finger prints tallied
with ones lifted from the place of occurrence in Cr. No. 59 of
s 1996. Further, it is also the prosecution case that A2 made a
disclosure and pursuant to that iron rod (M.O. No.1) used 10
years back was recovered. An identification parade was·
conducted so far as A 1 is concerned on 20.10.2005, who is
now no more. However, no identification parade was
c conducted so far as A-2 is concerned. It has come out in
evidence that the photographs of A-2 was shown to PW 1 by
the police on 30.10.2005 and asked him to identify the accused
and on identification by PW 1, the accused was interrogated
by the police. In cross-examination, PW1 has stated as follows:
D
E
F
G
H
"Accused No.2 attacked me before I could see him and
make any enquiry. He assaulted me with a rod. I could
not see with which hand he assaulted me. It is incorrect
to suggest that the accused did not assault me as stated
by me."
24. PW 1 also further stated in cross-examination as
follows:
"There was light only after the neighbors switched on the
light. It was dark earlier. It is incorrect to suggest that it is
not possible to see the accused in the darkness."
25. PW 2 - Lakshmi, wife of the deceased in her
examination-in-chief stated as follows:
"I opened my eyes and saw. When I saw, accused Nos.
1 and 2 were present amongst the persons. I fainted
immediately. There was commotion in my house."
26. In cross-examination, she has stated as follows:
"In the police interrogation, I did not tell that the accused
Nos. 1 and 2 were present in the incident that took place
in my house."
OMA @ OMPRAKASH AND ANR. v. STATE OF
761
TAMIL NADU [K.S. RADHAKRISHNAN, J.]
27. PW 5, brother of PW 1, in his examination-in-chief has
A
stated as follows:
"At that time accused Nos. 1 and 2 attacked me with the
rod.
I fell down and fainted.
When I regained
consciousness I was in the room of my father. My father,
my mother and younger brother sustained injuries. I asked
8
my mother to wake up my father.