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The Nagpur Bench of the Bombay High Court on Tuesday commuted death penalty awarded to two young men convicted for robbery and murder of a woman and for injuring her minor son. The sentence in the case was commuted to life imprisonment due to lack of evidence and in view of their socio economic status.
A Division Bench of Justices P N Deshmukh and Pushpa Ganediwala refused to confirm death sentence as pleaded by the State and partly allowed the appeal made by 22-year-old convicts Amir Ajaj Shaikh and Sachin Kundlik Raut from Bhandara district. The appellants were working as Air-Conditioner mechanics in Bhandara town.
The Court observed,
“The present case is not the rarest of rare case awarding death penalty and considering the socio-economic circumstances under which the present appellants were brought-up, they deserve life imprisonment instead of death. They are neither hardened criminals, nor is it impossible to reform them.”
The Bench went on to note,
“Both are of young age, who have just come out of their minority. With a temptation to earn easy money, they adopted this way, however, they failed before they could enjoy the fruits of their act. The whole case is based on circumstantial evidence. There is no evidence as to which of the appellants inflicted blows with hammer.”
It was a case of the prosecution that on July 30, 2015, both the appellants committed house trespass and robbed the house of a local businessman Dayaji Bariya . In doing so, they murdered his wife with and attempted to kill their 8-year-old son Bhavya, claimed the Bhandara Police. The convicts were accused of having used the hammer to hit the head of Bariya’s wife, leading to her death.
It was submitted by the Police that both the appellants were familiar with the Bariya family, as they had visited their house for repairing an Air-Conditioner before the incident. The prosecution went on to submit that a scarf, blood stained shirt, jeans, yellow and white metal ornaments, hammer and cash worth Rs. 1.73 lakh came to be seized from one of the convicts.
Both the accused were eventually sentenced to death by Bhandara Sessions Court in June, last year for murder, punishable under Section 302 (Punishment for Murder) and were awarded life imprisonment under 307 (Attempt to Murder) of the Indian Penal Code (IPC).
They were also penalised with rigorous imprisonment for offences under Sections 397 (Robbery or dacoity with attempt to cause death or grievous hurt), 452 (House trespass after preparation for hurt, assault or wrongful restraint) and Section 460 (Punishment for joint house trespass or house-breaking by night causing death or grievous hurt) of the IPC.
While the High Court concurred with the conviction, it refused to confirm the death sentence imposed by the trial Court. In this regard, Justice PN Deshmukh, who authored the judgement noted,
“Certainly, to commit murder was not their prime motive. They entered the house to commit robbery. In order to deactivate the housewife, they inflicted 4-5 blows on her head with hammer. We do not see any uncommon thing in it. In the cases of robbery/dacoity and murder, obviously, the intention of the accused is not to commit murder. Murder is only the by product to facilitate crime and probably to extinguish the evidence.”
Inter alia, the Bench also referred to the Supreme Court’s judgment in MA Antony Antappan v State of Kerala to arrive at its verdict. In that case, the Apex Court accepted that the defence arguments that referring to the ‘collective conscience of the society’ for the purposes of imposing sentence is totally misplaced.
The Supreme Court had noted that is not possible to determine public opinion through the evidence recorded in a trial for an offence of murder. Further, it was observed that it is even more difficult, if not impossible, to determine something as amorphous as the collective conscience of the society.
With this, the Apex Court had endorsed that socio-economic factors must be taken into consideration while awarding a sentence, particularly the ground realities relating to access to justice and remedies to justice that are not easily available to the poor and the needy. In light of the said judgement, the Bombay High Court observed,
“In our view, the circumstances of the crime in this case are not of such a kind for which there is no alternative but to impose death sentence. The offence committed in the instant case is not of an exceptionally depraved and heinous character. The manner of its execution and its design would not put it at the level of extreme atrocity and cruelty.”
After perusing material on record, the Court held that death penalty is not the ultimate solution in present case. Disposing the plea, the Court held,
“We find the alternative punishment of life imprisonment would be just and proper vis-a-vis the nature of crime and the criminals. In the circumstances, the case referred by the learned Sessions Judge does not deserve confirmation. The conviction of the appellants is maintained; however, their sentence of death is commuted to life imprisonment with fine of Rs. 10,000/- each in default to suffer simple imprisonment for one year each.All the substantive sentences shall run concurrently with benefit of set off. Rest of the operative part of the impugned judgment shall remain unchanged. The appeal against conviction of the appellants is accordingly partly allowed and disposed of.”
The appellant convicts were represented by advocate OW Gupta, while Additional Public Prosecutor NB Jawade appeared for the State. Advocate NS Khandewale assisted the Bhandara Police.
[Read Judgment delivered on November 5, 2019]