By – Priyanshi Bhatia
In the Supreme Court of India
|NAME OF THE CASE||Ronny Alias Ronald James Alwaris Etc vs. the State Of Maharashtra|
|CITATION||(1998) 3 SCC 625|
|DATE OF THE CASE||5th March 1998|
|APPELLANT||Ronny Alias Ronald James Alwaris|
|RESPONDENT||State of Maharashtra|
|BENCH/JUDGE||M.K. Mukherjee, J. & Syed Shah Mohammed Quadri, J.|
|STATUTES/ CONSTITUTION INVOLVED||Code of Criminal Procedure, 1973. Indian Evidence Act, 1872 Indian Penal Code, 1860|
|IMPORTANT SECTIONS/ARTICLES||Section 100(4) and Section 166(3) and 166(4) of the Code of Criminal Procedure.Section 9 of the Indian Evidence Act.Section 376 of the Indian Penal Code.|
The present case study deals with the case of the gruesome, cruel and atrocious murder of a family, and sexual assault committed on the female inside the house. The case study puts forth the factual matrix, legal provisions that were involved, and the Judgment of the Apex Court. That it also covers how the Supreme Court ascertains when two punishments, namely imprisonment for life and death sentence have been simultaneously provided by law, and how the judiciary exercises its judicial discretion in awarding the sentence. The case study also mentions the lines from the judgment, as well as the judgments that have been relied upon by the court.
~ Priyanshi Bhatia
The killing of someone, or in legal parlance committing the murder has been recognized as a cruel act. It may be in the vengeance of the murder committed, or for some else ulterior motive, like committing while robbery etc. But, the act of commission is cruel in that the society wants the removal of the criminal on the grounds of apprehension of danger, and him being a menace to the society also, because it shakes the societal conscience.
The law under the Indian Penal Code prescribes the punishment be inflicted in case of such murder, as the awarding of the imprisonment for life and death sentence. When the law gives a choice between either of the two punishments to be inflicted, it percolated down to the judicial discretion of the court. The court applies its mind, considering the depravity and the gravity of the crime, any mitigating or aggravating circumstances.
That the awarding of death sentence is only done in the cases of extreme cruelty, and under the doctrine of rarest of rare cases. The present case is also one such case wherein the lower courts have awarded the death penalty considering the gravity of the crime, but the Apex Court has commuted it to imprisonment for life.
BACKGROUND OF THE CASE
That the present has no ocular witness, and the case merely revolves around the circumstantial evidence. The prosecution narrated and brought home the guilt of the accused based on the evidence on record. And the trial court held that the chain of circumstantial evidence is complete as to point to the hypothesis of the guilt of the Accused and inconsistent with any other hypothesis.
Accordingly, the Accused were sentenced to death, subject to the confirmation by the High Court on the charge of 302/24 IPC. Punishment of five years rigorous punishment for the offence of 449/34 IPC. One year rigorous imprisonment for the offence of 347/34 IPC. And, for the offence of 394/34 IPC, to the rigorous imprisonment of seven years. Also, convicted them on the charge of 376(2)(g) IPC for the rigorous imprisonment of 10 years for rape of the deceased wife of deceased Mr Ohol. Other minor offences of which they were charged were 467/471/201 read with 34 IPC. It had been held by the Trial Court that all offences to run concurrently.
On the question of death sentence confirmation by the High Court, the Court took up the issue with the Appeals filed by the Appellants, and while upholding the conviction dismissed the appeal. Hereby the Appellants have approached the Hon’ble Supreme Court assailing the judgment of the High Court.
FACTS OF THE CASE
That the facts that are the subject matter of this instant case are as follows:
- That there used to be a house named ‘Rooman Bungalow’ that was located in the Varsha Park Society, at Baner Road, Pune. That the said house was in the care of Mr. Mohan Ohol, who happen to be the President of the afore Society. He used to reside in the said Bungalow with his wife Mrs. Ruhi Ohol, and the son named Mr. Rohan Ohol. This Bungalow was adjacent to another house named ‘Rohini Bungalow’ which was in the care of Mr. Vyankat Krishnan, who is the Secretary of the Society. Both the houses are divided, rather separated by a kutcha Road.
- That family tree of Mr. Ohol as set out in the present case is as follows that he has a brother named Mr. Vijay Ohol, whose son is Viren; His sisters namely, Ms. Mandakini and Ms. Rajni, whose children are Rhoda and Nitin Anil Swargey respectively. Mr. Ohol also has Mother-in-law, who happen to be diagnosed with cancer, and is fighting her life at the Ruby Hospital Pune.
- That on July 18th, 1992 Nitin Anil Swargey (herein Appellant No. 1), along with his friends Ronny (Appellant No. 2 herein), and Santu (Appellant No. 3 herein), former two the residents of Boreville, Bombay and latter from the Distt. Thane, went to Pune. There they got in touch with the Partner of Natraj Hotel, named Mr. Tulsi Bhagwan Shetty (herein Witness 46), who had arranged a lodging room for them for stay over. That had been taken care of and looked after by the Room Boy, named Ramesh Madhavakar (Witness 47). After residing in the hotel for two days, they checked out from the same. In order to roam around the city of Pune, they asked the Witness 46 (Partner of the Hotel) for arranging a car as they wished to visit Panchgani, but the latter referred them to the Deccan Luxury Service, wherein they approached the Owner of the Services Mr. Dadasaheb Bhagaji Dhumal (Witness 69), who denied of having any vehicle at that point of time. But have managed to arranged a Maruti Van for them.
- Thereafter, they visited back to the hotel, took up the luggage and left around 1:30 PM of 20th July. Meanwhile around this time, Appellant No.1 bought a Adhesive Tape from the Medical Shop of Mr. Sanjay Mantri (Witness No. 45 herein).
- That after loitering here and there waiting for the dawn to be set, the hired a rickshaw around 6:30 in the evening, with the destination of Baner Road ahead of Green Park Hotel. It had been raining heavily at that point of time, resultant which the Kutcha Road adjacent to the house of Mr. Ohol had become slushy. On reaching near and at the Baner Road, the driver of the rickshaw refused to go any further as his rickshaw might get stucked in the mud, but on being coerced by the revolver pointed at him by the Appellant No. 1, he moved towards it.
- He dropped them at the house of Mr. Ohol, of which the lights were turned on, and the son of the former was bantering with his classmates, namely K. S. Pradhan and Rajesh Sundaram, (Witness No. 29 and 34 respectively herein). On seeing the Appellant No. 1, Mr. Rohan Ohol greeted them and there happened a exchange of introduction, followed by a conversation for about 7-8minutes. Thereafter, they bode to each other, and the classmates of Rohan walked back to their home. After a walking a distance, they noticed the Father of the Rohan, along with his wife coming back to home. Around this time too, household help named Asha Tarachand (Witness 35 herein), had completed her work and was advancing way back home along with her son and daughter, and coincidentally met the Mrs. Ohol, who asked to come early the following day.
- That the night came by, and the watchman (Witness No. 21) was on his duty. He went to the back of Mr. Ohol house in order to pickup his night torch, which was kind of routine from him to pick up at night and drop the following morning. That night while picking up the torch he had noticed Mrs. Ohol in the house, and lights were on. Noticing her, he proceeded further to do his duty. The following day when he went, as a matter of routine to put back his torch he noticed the foot wears in the veranda, damped with mud, and the lights were still on to his surprise. Without paying any heed he went by. Then came the Milkman (Witness No. 22) who had come to drop by the milk, noticed three man moving out of the house of Mr. Ohol. Newspaper man (Witness No. 23 herein), affirmed the presence of Milkman on 21st July, as he handed him the newspaper to keep at the rack in the Veranda of the house of Mr. Ohol.
- One neighbor named Mr. Vyankat Pandit (Witness No. 24) who had returned back home after dropping the children to the school, that the car of Mr. Ohol was being pushed by two persons as it had got stuck in the mud. The same car was again noticed by Mr. Vyankat Krishnan (Witness No. 26), the owner of Rohini Bungalow, while he was taking his wife to the college that the car was waiting outside the car and thereafter when he proceeded further, it followed him on his way. He pulled aside his car, and gave signal to the car of Mr. Ohol, presuming him to be inside, but it was being driven by some other person, with two co-passengers, one at the front and one at the back seat. Mr. Vyankat had managed to get sight of the front row passengers but could not see the man sitting behind.
- After abandoning the car at the Shirur, they went away for misappropriating the properties of Ohols, which includes the presentment of the cheque ostensibly signed by Mr. Ohol, presented by the Appellant to the clerk of the bank, who asked him to sign at the back slip, to which Appellant signed as MK Chavan, and was given a token. When the cheque reached the Asstt. Branch Manager, he found that the sign of the Endorser does not match, to which he asked apparent MK Chavan either to get another cheque signed by Mr. Ohol or to get some sort of direction as to the credence of the present cheque. Doing neither of the above, the Appellant went away with the token.
- Meanwhile this, various instances have had happened vis-à-vis whereabouts of the Ohols. Firstly, on not seeing the Rohan in the school, the classmates who had come to home, telephoned him but got no response. Secondly, household help came at her time in evening, rang the bell of the house, but no one opened the door , so she went by taking away with her the milk packets that had been kept in the veranda. Later, she had sent her children, thinking that Ohols might be home by now, to deliver the milk packets but her children came back as they went. Thirdly, as routine walk in the society Mr. Vyankat (26) used to see Mr. Ohol daily around 7 PM in the evening but to his surprise he did not come. Next day, the milkman (22) again came to drop by the milk but to his surprise he found the newspaper of earlier day not having been read, thinking of nobody to be at home, he went away with the milk packets. On his way he enquired from a lady about the whereabouts of Ohols, who told him that they might have gone to the hospital to see the Mother-in-law. Same incidents of the evening of previous day followed on 22nd July too.
- On the same evening, the nephew and niece, namely Viren and Rhoda had gone to the residence of the Ohols knowing from their parents that neither of the Ohols had come at the Hospital, and neither was picking up the calls. On visiting the residence, they found the lights burning at the ground floor. This was also the time for the watchman for his duty who had come to pick up his torch, he rang the door bell of the house but no one responded, then he approached to the house of Mr. Vyankat, and on his way back found latter being present outside the house of Ohols, who had also asked the watchman to go to the terrace and see if there is any abnormal situation. When Watchman went to the terrace, he found and noticed nothing but the ants coming in and going out of the washroom, when he removed the glass window of the same, he found the dead bodies of Ohols in the Bath Tub. Thereafter, what proceeded was the informing the police, sending the dead bodies for the postmortem and autopsy. Investigation by the Investigating Officer, preparation of the Panchnama by the IO.
ISSUE RAISED BEFORE THE COURT
POINT 1: Firstly, what would be the effect of Identification of the Accused by the witness for the first time in the court, sans any Test Identification Parade? Secondly, what would be the effect of the no-compliance of the procedure under Section 100 (4) and Section 166 (3) and 166(4)?
POINT 2: Whether the charge of Rape under Section 376 IPC has been made out against the Appellants-Accused?
POINT 3: Whether in the present case, awarding of the death sentence to the Appellant-Accused, is justified?
ARGUMENTS FROM THE APPELLANT SIDE
- That the identification by the witnesses sans any TIP being conducted was worthless, and should not be relied upon, and leading to the missing of the nod in the chain of circumstantial evidences, thus, conviction liable to be set aside. The main attack is on the classmates of the Rohan, who had seen them coming into the house, and the recognition by them, of the Accused-Appellants for the first time in the court has been objected to by the counsel of the Appellants.
The counsel for the Appellants relied upon the judgment of Kanan vs. State of Kerala and pleaded that the evidence of the classmates is not reliable and is valueless.
- The learned counsel for the Appellant made another contention that the as per post mortem, that was done on 23rd the time of death is 24-72 hours prior to it. That the murder would have been on 22nd July or night before and further contended that the presence of the Appellants at the same time has not been established.
- The counsel pleaded that the evidences collected for the different crimes could not be used against the Appellants-Accused.
ARGUMENTS FROM THE RESPONDENT SIDE
- The Respondents contended that the conducting the TIP is mainly to ensure that there is no protraction of the prosecution, also to prevent the fading away of the memory of the witnesses. He further contended that the said principle would not apply to the cases wherein the witnesses know the Accused beforehand.
- The learned counsel for the Respondent had contended that guilt of the Accused is also corroborated by the report of post mortem, according to which the death has occurred between 24 and 72 hours. Therefore, it becomes clear that on the intervening night of 20th and 21st the murder and the sexual assault upon the deceased’s wife have been committed.
- On the question of the sentence it has been argued by the learned counsel that the chain of the circumstantial evidences is complete, thereby having only hypotheses of point at the guilt of the Accused, and inconsistent with any other hypotheses.
- Section 100 provides for the obligor upon the persons in the care of residence to allow search of the premises, as is herein below reproduced as:
“Before searching for this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.”
- Because of being at distant place, and apprehension of losing the search items or the absconding of the criminal, the Section 166 enables the Police Officer to get search made by the another police station officer, and is herein below reproduced as:
“Whenever there is reason to believe that the delay occasioned by requiring an officer in charge of another police station to cause a search to be made under sub- section (1) might result in evidence of the commission of an offence being concealed or destroyed, it shall be lawful for an officer in charge of a police station or a police officer making any investigation under this Chapter to search, or cause to be searched, any place in the limits of another police station by the provisions of section 165, as if such place were within the limits of his own police station.”
“Any officer searching sub- section (3) shall forthwith send notice of the search to the officer in charge of the police station within the limits of which such place is situated, and shall also send with such notice a copy of the list (if any) prepared under section 100, and shall also send to the nearest Magistrate empowered to take cognizance of the offence, copies of the records referred to in sub- sections (1) and (3) of section 165.”
- In order to ascertain the identity of the individuals the law on the point is provided under Section 9 of the Indian Evidence Act, 1973 as follows:
“Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of anything or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.”
- The Indian Penal Code prescribes the punishment for the Rape as follows:
“Whoever commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of fewer than ten years.”
ON POINT 1:
- Identification of the Appellants by the witnesses for the first time in the court
The court opined that the law on the point is under Section 9 of the Indian Evidence Act which deals with the facts necessary to explain or introduce the relevant facts. The section purports the relevancy of the facts that establish the identity of the person, thus the court held that the identification of the Accused, is a relevant fact under Section 9.
On the objection that some witness has identified the Accused of the first time in the court sans any TIP being conducted, and same could not be relied upon, the court held that identification of the Accused by the witness for the first time in the court is a piece of substantive evidence, while the conducting TIP is the corroborative evidence. The court further held that identification of the Accused for first time in court, is evidence of weak and minimal character and could not be given much credence. But such principle does not apply to the cases where the parties know each other beforehand, that it lends assurance to the court, in that evidence could be relied upon and would not suffer from the vice of NO-TIP being conducted.
The court rejected the argument and placing of reliance on the case of Kanan (supra), by the Appellants on the ground that it relates to the case where the witness did not know the Accused beforehand.
The court held that the identification of Appellants-Accused by the classmates as a piece of evidence to be relied upon, without any TIP being conducted, has been rightly held by the Trial and the High Court. Therefore, the court found no illegality in the testimony being relied upon by the lower courts.
- Not calling local witness during the search
The court held the law on the point for searching in the presence of the local is provided under Section 100 of the CrPC, which lays down that while searching, the search memo should be signed and endorsed by the local person, and if he is not present then in that case IO is empowered to call the person from another locality. In the present case, that there is non-complaince of the provision was rejected by the court on the ground that the person, for sake of convenience, had been taken from Pune to Bombay along with the police officers, and the only ground that he is not from the locality could not be the reason for disbelieving his evidence.
The court as regards the issuance of search warrant by the other person, held that the although the letter sent by the IO to the another police station officer for issuing the search warrant, is not brought before the court, but as regards the same the presumption could be raised under Section 114 of the Indian Evidence Act.
ON POINT 2:
In order for ascertaining whether the offence of Section 376 IPC is made out or not, court placed reliance on the evidences already established and the testimony of the doctor who conducted post-mortem.
The evidences established in the present case bringing home the guilt as regards the sexual assault, are that on the intervening night the three Appellants were seen entering the house by the classmates of Rohan, and on the following their coming out was noticed by the Mr. Vyankat, the neighbor. But nobody has seen coming out of the Tools from the house. The maid found the house locked, the newspaper man and milkman, found the previous day article lying there as if nobody has been at home. Also, they were not seen by the society members by whom they ought to have been seen. Thus, the court held that this clearly points to the fact that they were inside the house on an intervening night.
The Testimony of the doctor, who conducted the post mortem, states that there are marks of abrasion on the thigh of the deceased, and such is the result of extreme assault and not an effect of simple assault. Also, that there are pieces of evidence about the tie-ing of the adhesive tape around the mouth and lips, to prevent screaming. That the blood stains on the bed sheet match with the blood sample of the Accused-Appellants.
Thus, the court held that on the ground of circumstantial and medical pieces of evidence, the charge of Section 376 IPC against the Appellants is made out.
ON POINT 3:
- That in dealing with the question whether the awarding of the death sentence by the lower courts is justified in the present case, the Apex Court went into the jurisprudence of the Death Penalty and awarding of the same. The court opined that the Indian Penal Code that provides for the awarding of the sentence, confers discretionary power on the court of law to award the sentence and punishment but that discretion is to be exercised, the court held, judicially. The court further opined that the although the sentences have been prescribed by the code, in some cases maximum sentence, while in some cases maximum and minimum sentence, but no guidelines or directions exist so as to be the touch bearer for the courts in awarding the sentence; and, such discretion of awarding sentence should be proportionate with the gravity of the sentence, nevertheless keeping the mitigating and aggravating circumstances in mind. That court held that the obligor that falls upon the court is to decide when to award the Death sentence, and that becomes troublesome for it. Nevertheless by awarding the punishment the court is putting the mandate of law into motion, whereas the Accused who had committed murder, might be in retribution, is doing something that is violation of the law of the land, let alone the cruelty aspect.
- That the court relied upon the judgment of the Bacchan Singh vs. State of Punjab in dealing with the question of that in awarding the death sentence special reasons have to be cited as per Section 354(4) of the CrPC. The relevant para of the said judgment is reproduced from the present judgment as follows:
“Section 354(4) of the Code of Criminal Procedure, 1973 marks a significant shift in the legislative policy underlying the Code of 1898, as in force immediately before 1-4-1974, according to which both the alternative sentences of death or imprisonment for life provided for murder and certain other capital offences under the Penal Code were normal sentences. Now, according to the changed legislative policy which is patent on the force of Section 354(3), the normal punishment for murder and six other capital offences under the Penal Code, is imprisonment for life (or imprisonment for a term of 10 years) and death penalty is an exception.”
- For the evaluating the existence of the circumstances to back the special reasons, the court opined that the commission of murder is nevertheless cruel and all murders committed cannot be said to be not cruel, but on the question of sentence, the degree of the same is to be measured, and when the threshold of the degree of cruelty is akin to extremity in depravation, that would suffice the special reasons to award the death sentence. The court also opined that the as held above, that the Life imprisonment is the rule and the death penalty being the exception to it, it is in that cases only wherein the awarding of life imprisonment appears to be inadequate when contrasted with the nature of the crime, that the death penalty could be imposed.
- The court put reliance on the judgment of Macchi Singh vs. State of Punjab, to ascertain the rarest of rare doctrine, in which the court had put forth the two questions that should be answered in any relevant case, in order to inflict the death punishment. The two questions stated by the court are as follows:
“Firstly, is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
Secondly, are the circumstances of the crime suggest that there is no alternative but to impose the death sentence, even after according the maximum weight age to the mitigating circumstances which speak in favour of the offender?”
- Placing reliance on the judgment of the Apex Court in Allauddin Mian vs. State of Bihar, the court reiterated that unless the nature of the crime suggests and warrants the case to be of greater depravity, and criminal being the menace to the society, the greater punishment than life imprisonment should not be inflicted. Also, reiterating what has been held in Shamshul Kanwar vs. State of UP, the court held that the number of victims per se is not the only criteria to bring the case within the realm of rarest of rare scenarios.
- The court ascertained the mitigating factors that spoke in favor of the Appellants. That the Appellant No.1 is civil engineer, with a son of 4 y’old, and his parents serving at some spiritual centre. That the Appellant No. 2 has married with his love by running away from his home, and against the will of both families, and there is nobody to look after her wife. That the Appellant No. 3 is just 27 years of old with a sick father, and he is unmarried.
The courts juxtaposed these factors with the aggravating circumstances that rule against the Appellants. That Appellant No. 1 is the nephew of the deceased; that the victims were unarmed, heinous crime had been done by ransacking the house, murdering the people inside, and committing the sexual assault on the wife of his uncle.
- After ascertaining all the legal authorities relied, and the mitigating and the aggravating factors, the Court opined and held that the crime was done after pre-planning, but Appellants not being too young or too old, the court held that the possibility of reformation and rehabilitation could not be ruled out. Also, that it is unclear as to who in the conspiracy committed what act. That the court held that when it becomes impossible to ascertain as to whose case falls under the rarest of rare, the justice would be served by the awarding the imprisonment for life, hence by ruling the same, the court commuted the death sentence to the Life Imprisonment.
That more often than not we have seen the crime being committed within the family, or the extended family or amongst the known ones. That too is not any ordinary crimes but the crimes and offences of the heinous, cruel, brutal, gruesome, cold-blooded, and atrocious nature.
That the law only provides for the punishments to be inflicted like Life Imprisonment and Death Sentence, but in the end percolated down to judicial discretion to award the same, that by itself becomes onerous for the Judges. When the crime is of such a nature that the conscience of the society is shaken, the criminal is seen as the menace to the society, that the society wants the removal of the criminal, it would be apropos to award the death sentence, but where the gravity of the crime is not too deprived, the court should award the lesser punishment.