SANTOSH KUMAR SATISHBHUSHAN BARIYAR V. STATE OF MAHARASHTRA

By – Utkarsh Sahu

IN THE COURT OF SUPREME COURT OF INDIA

NAME OF THE CASE	SANTOSH KUMAR SATISHBHUSHAN BARIYAR V. STATE OF MAHARASHTRA
CITATION	CRIMINAL APPEAL NO. 1478 OF 2005 WITH CRIMINAL APPEAL NO. 452 OF 2006
DATE OF THE CASE	13 MAY, 2009
APPELLANT	SANTOSH KUMAR SATISHBHUSHAN BARIYAR
RESPONDENT	STATE OF MAHARASHTRA
BENCH/JUDGE	JUSTICE S.B. SINHA AND JUSTICE CYRIAC JOSEPH
STATUTE/CONSTITUTION INVOLVED	CODE OF CRIMINAL PROCEDURE, INDIAN PENAL CODE, INDIAN EVIDENCE ACT.
IMPORTANT SECTIONS	SECTION 30 OF IE ACT, SECTION 302/363/387 OF IPC, SECTION 164/307/306 OF CrPC.

ABSTRACT:

This case is dealt with a criminal matter where the petitioner is accused under section 302/363/120 of the IPC. Capital punishment is held in the Indian overall set of laws. The Indian Penal Code, 1860, and other few Acts do accommodate the death penalty. Be that as it may, any place the death penalty is given, life imprisonment, as another option, is likewise given. The Code of Criminal Procedure, 1973 orders that the death penalty be delivered for ‘unique motivations’ to be recorded in the judgment. Consequently, life imprisonment is the rule, and the death penalty is an exemption. Nonetheless, without any legal or acknowledged legal rules, capital punishment law has become ‘judge-centric’ as opposed to ‘principle-centric’. The paper digs into the passing condemning statute in India and argues for principle-centric sentencing.

INTRODUCTION:

This is an appeal filed by the accused before the Honorable Supreme Court of India for reduction of the sentence which was passed by the trial court and upheld by the High Court of Bombay under section 302/120/363 of the Indian Penal Code.

In this case, the accused is sentenced to the death penalty by the trial court and upheld by the High Court of Bombay. The offender then moved to the Supreme Court for reduction of the sentence from the death penalty to rigorous imprisonment.

BACKGROUND OF THE CASE:

In this case both the appeal was raised out of a common judgment of conviction and sentence dated 12^th August 2005, which was passed by the “Honorable High Court of Judicature at Bombay in confirmation case No.2 of 2004”. In case No.2 three appeals were connected; one was filed by the State and two by the accused, whereby and whereunder it affirmed and acknowledged the reference made to it as far as Section 366 of the Code of Criminal Procedure, 1973 on account of Santosh Kumar Satish Bhushan Bariyar (appellant in Criminal Case No.1478 of 2005), and maintained the conviction and sentence of life detainment on account of the other accused (respondents in Criminal Appeal No.452 of 2006).

While Criminal Appeal No.1478 of 2005 has been lodge by Santosh Kumar Satishbhushan Bariyar (A1) (hereinafter referred to as “the appellant”), the State has documented Criminal Appeal No.452 of 2006 praying for the upgrade of sentence for Sanjeev Kumar Mahendraprasad Roy (A2) and Sanotshkumar Shrijailal Roy (A3).[1]

Leave in this issue was conceded by this Court by orders dated 28^th October 2005 and seventeenth April 2006 separately.

FACT OF THE CASE:

The fact of the case is that the accused were planned a conspiracy to abduct either one Abhijeet Kothari or one Kartikraj (the deceased) and have some demand of 10 lac Rs. From the victim’s family. Eventually, kartikraj was kidnapped by the accused. He was working as a clerk in Central Railway at Pune. Kartikraj’s father during that time work as a Manager at NABARD, Hyderabad, and his younger brother live with his father. On dated 8 august,2001 the accused called the victim’s father and asked for a sum of 10 lac Rs. He also threatened his father that if he would not give them money they would kill the kartikraj. Later many calls also were received by the victim’s family, Ramraj asked the accused to give him some time till the next morning so he can arrange the money. Ramraj asked for help from his friend who was working as a manager in NABARD at Pune but his friend failed to locate kartikraj. After Ramraj’s friend’s effort, Ramraj faxed a First Information Report to his office and asked him to “lodge the same at the Police Station in question. Kartikraj’s photograph was sent along too. A First Information Report for offenses punishable under Sections 363 and 387 of the Indian Penal Code has been submitted accordingly. The investigation was transferred over to the Crime Branch.” Again, a phone call was received by the victim’s brother from the kidnappers and asked him to come to Bombay with 10lac and mobile phone, Santosh raj victim’s younger brother contacted the investigating office, API Lotlikar, and told the officer that he had received a call from the kidnappers. “Kumar Gaurav (PW-1), the approver and the accused Nos.2 and 3, Sanjeevkumar Mahendraprasad Roy and Sanothskumar Shrijailal Roy were arrested according to this. Santosh Kumar Satishbhushan Bariyar, accused No.1, was also arrested at Andheri Railway Station. However, Kartikraj’s exact location was not revealed.” They produced before the magistrate and the session judge were passed the judgment. Later, Santosh Kumar Satish Bhushan the accused appeal to the Supreme Court of India.

ISSUE RAISED BEFORE COURT:

“Whether the learned Sessions Judge acted illegally in granting pardon to Kumar Gaurav (PW-1)”

“Whether the case in hand can be said to be a `rarest of rare cases to enable the courts below to award the death penalty.”

ARGUMENT FROM PETITIONER SIDE:

The learned counsel Mr. Sushil Kumar argued that the lower courts submitted serious illegality in recording the judgment and conviction exclusively based on PW-1, Kumar Gaurav’s declaration, given the way that he had withdrawn his admission, as his letter of 6 November 2001 (Article B) would show.
The learned counsel stated that the “learned Sessions Judge should not have relied on the testimony of the learned Magistrate (PW-54), because there was enough information to demonstrate that none of the accused was created when the charge sheet was filed on 9 November 2001, between the span 9.11.2001 and 1.1.2002. Although in Court PW-1 was not made, there was no opportunity for him to tell the Magistrate that he was not the author of Article B.”
He also argued that the learned sessions judge had not had to exercise his authority under section 307 of the Code of Criminal Procedure taking into account the way that the conditions found in section 306 of the Code of Criminal Procedure were not met.
The learned counsel lastly argued that as the issuance of pardon to Kumar Gaurav was illegal, his declaration ought not to have been considered as a witness examined in the interest of the prosecution, and the equivalent ought to have been considered as an explanation made by the accused against his other co-accused uniquely as accommodated in Section 30 of the Indian Evidence Act.

ARGUMENT FROM RESPONDENT SIDE:

The learned counsel from the respondent side argued that in the 2006 Criminal Appeal No. 452 relating to Sanjeevkumar Mahendraprasad Roy and Santosh Kumar Shrijailal Roy, the sentence gave over to them was amazingly lacking and that the equivalent ought to be expanded to the death penalty, as the crime they had perpetrated falls under the ambit of ‘the rarest of the rare cases.’
He contended that Sanjeeb Kumar Roy and Santosh Kumar Roy both procured the death penalty, being comparable to the crime, having played a comparative part in its commission. Additionally, it was contended that there was not a solitary mitigating factor for the indicted allowing them the decreased life detainment sentence.

RELATED PROVISIONS:

Rampal Pithwa Rahidas and Others v. the State of Maharashtra[2]

“We find ourselves unable to place any reliance on his untrustworthy and unreliable evidence and in that view of the matter, we refrain even from expressing any opinion about the effect of the alleged non-compliance with the provisions of Section 306(4) IPC read with Section 307 IPC, as admittedly after the grant of pardon by the order dated 24.4.1987, no statement of Ramcharan approver was recorded till he appeared at the trial as PW 49. It is only after the grant of pardon that the status of an accused is changed into that of a witness and the law enjoins upon the Courts to record the statement of the approver immediately after a pardon is granted to him so that he may consider himself bound by that statement and failure to do so at the trial would render him liable for prosecution. That exercise was not performed in this case.”

In Narayan Chetanram Chaudhary and Another v. State of Maharashtra[3]

“A Division Bench of this Court, in an almost similar situation, viz., where the confessional statement was kept in a sealed cover and wherein also the learned Sessions Judge granted pardon, declined to hold that only because some delay had occurred in granting pardon, no reliance could be placed thereupon. It was furthermore opined that what was mandatory was the examination of the accomplice. Non- examination of the approver at the committal stage by the committing Magistrate, if rectified later, would not lead to any prejudice to the accused, stating:”

“27. There is no legal obligation on the Trial Court or a right in favor of the accused to insist for compliance with the requirement of Section 306(4) of the Cr. PC. Section 307 provides a complete procedure for recording the statement of an accomplice subject only to compliance with conditions specified in Sub-section (1) of Section

306. The law mandates the satisfaction of the Court granting pardon, that the accused would make full and true disclosure of the circumstances within his knowledge relative to the offense and every other person concerned, whether as principal or abettor, in the commission thereof. It is not necessary to comply with the requirement of Section 306(4) when the pardon is tendered by the Trial Court. The Trial Court, in this case, has taken all precautions in complying with the provisions of Section 306(1) before tendering pardon to accused Raju, who later appeared as PW. 2. We do not find any violation of law or illegality in the procedure for tendering the pardon and recording the statement of PW.2.”

Bachan Singh v. the State of Punjab[4]

“A Constitution Bench of this Court repelled the challenge of constitutionality to the death penalty by laying down the framework law on this point. Bachan Singh (supra) serves as a watershed moment in the history of death penalty jurisprudence in India as it severed the Indian judiciary’s normative ambivalence on the subject. Bachan Singh court noted that the death penalty is acknowledged in the constitution. Also, the new sentencing procedures were held to be like safeguards and as a guidance sentencing. The sentencing procedure was taken to be orienting the death punishment towards application in very selective situations. On the aforementioned reasoning, the court upheld death punishment, substantively and procedurally.”

Saibanna v. State of Karnataka[5]

“In this case, the accused therein was a life convict. While on parole, he murdered his wife and daughter. This Court sentenced him to death on reasoning, which effectively made death punishment mandatory for the category of offenders serving a life sentence, opining:”

“A prisoner sentenced to life imprisonment is bound to serve the remainder of his life in prison unless the sentence is commuted or remitted and that such sentence could not be equated with any fixed term. (See Gopal Vinayak Godse vs. State of Maharashtra [(1961) 3 SCR 440]. If that be so, there could be no imposition of a second life term on the appellant before us as it would be a meaningless exercise.”

Mithu v. State of Punjab[6]

“If the law provides a mandatory sentence of death as Section 303 of the Penal Code does, neither Section 235(2) nor Section 354(3) of the Code of Criminal Procedure can come into play. If the court has no option save to impose the sentence of death, it is meaningless to hear the accused on the question of sentence and it becomes superfluous to state the reasons for imposing the sentence of death. The blatant reason for imposing the sentence of death in such a case is that the law compels the court to impose that sentence. The ratio of Bachan Singh, therefore, is that death sentence is Constitutional if it is prescribed as an alternative sentence for the offense of murder and if the normal sentence prescribed by law for murder is imprisonment for life.”

Justice O. Chinnappa Reddy, J. in his concurring opinion agreed with the majority opinion and observed:

“Judged in the light shed by Menka Gandhi and Bachan Singh, it is impossible to uphold Section 303 as valid. Section 303 excludes judicial discretion. The scales of justice are removed from the hands of the Judge so soon as he pronounces the accused guilty of the offense. So final, so irrevocable and so irresistible [sic irresectable] is the sentence of death that no law which provides for it without the involvement of the judicial mind can be said to be fair, just, and reasonable. Such a law must necessarily be stigmatized as arbitrary and oppressive. Section 303 is such a law and it must go the way of all bad laws. I agree with my Lord Chief Justice that Section 303, Indian Penal Code, must be struck down as unconstitutional.”

JUDGEMENT:

The Honorable Court said that as the “age of the accused was a relevant factor for the High Court for not imposing death penalty on accused No. 2 and 3, the same standard should have been applied to the case of the appellant also who was only two years older and still a young man in age. Accused Nos. 2 and 3 were as much a part of the crime as the appellant. Though it is true, that it was he who allegedly proposed the idea of kidnapping, but at the same time it must
not be forgotten that the said plan was only executed when all the persons involved gave their consent thereto”.
The honorable Supreme Court held that in every single case pardon must be granted at the underlying stage, the power gave upon the Sessions Judge to allow under Section 307 of the Code of Criminal Procedure for all expectation and indicate will become slothful. Hence, the order of granting pardon to approver by the Session Judge is valid and legal.
The Honorable court held that as there is no particular ground for obtaining the death penalty and gave rigorous life imprisonment to the appellant, in this case, the mitigating factors referenced before are, in our view, sufficient to place it in the ‘rarest of the rare’ class, both the previous appeals of the appellant of the state were dismissed.
The Honorable Court also said that “this is not a case where death penalty should be imposed. The appellant, therefore, instead of being awarded death penalty, is sentenced to undergo rigorous imprisonment for life. Subject to the modification in the sentence of appellant (A1) mentioned hereinbefore, both the appeals of the appellant as also that of the State are dismissed”.

CONCLUSION:

In this case, many judgments of the different cases were produced to the court regarding the death penalty, life imprisonment, and granting pardon to the approver under section 306 of CrPC, after all the arguments and references this court finds that the order of granting Pardon was legal and valid, secondly this court also mentioned that this case is insufficient to call as ‘rarest of rare case’ and found that there is no particular ground for obtaining death penalty.