The present revision is filed by P.Ws.94, 98, 211, 214 and 97, in S.C.No.2 of 2000 on the file of the Court of Sessions Judge for Exclusive Trial for Bomb Blast Cases, Coimbatore, praying for enhancement of sentence in respect of Respondents 1 to 43(Accused Nos.1 to 13, 15 to 21, 26, 27, 28, 32, 33, 34, 36 to 41,43,44 45, 46, 60, 152, 155, 156, 161,163, 164 ).
2. The trial Court vide judgment dated 01.08.2007, has convicted and imposed the sentence against Respondents 1 to 43 which are as follows:-
R.1. S.A.Basha (A-1) A sentence of life imprisonment for the charge No.1 and three years rigorous imprisonment for the charge No.14.
R.2-Mohamed Ansari @ Ansari (A-2) A sentence of life imprisonment for the charge No.1, three years rigorous imprisonment for the charge No.14, life imprisonment for the charge No.79, seven years rigorous imprisonment for the charge No.81, seven years rigorous imprisonment for the charge No.83, nine years rigorous imprisonment for the charge No.85, seven years rigorous imprisonment for the charge No.126, seven years rigorous imprisonment for the charge No.128, seven years rigorous imprisonment for the charge No.130, seven years rigorous imprisonment for the charge No.133, nine years rigorous imprisonment for the charge No.135, seven years rigorous imprisonment for the charge No.203 and three years rigorous imprisonment for the charge No.204.
R.3-Tajudeen @ Abu Mujahith(A-3) A sentence of life imprisonment for the charge No.1, and three years rigorous imprisonment for the charge No.14.
R.4-S.A.Nawbkhan (A-4) A sentence of life imprisonment for the charge No.1, three years rigorous imprisonment for the charge No.14, seven years rigorous imprisonment for the charge No.126, seven years rigorous imprisonment for the charge No.128, seven years rigorous imprisonment for the charge No.203 and three years rigorous imprisonment for the charge No.204.
R.5-B.Basith @ Mohammed Basith (A5) A sentence of life imprisonment for the charge No.1, seven years rigorous imprisonment for the Charge No.7, three years rigorous imprisonment for the charge No.14, seven years rigorous imprisonment for the charge No.126, seven years rigorous imprisonment for the charge No.128, seven years rigorous imprisonment for the charge No.130, seven years rigorous imprisonment for the charge No.140 and seven years rigorous imprisonment for the charge No.142.
R.6-Y.Ozir @ Abdul Ozir @ TADA Ozir (A6) A sentence of life imprisonment for the charge No.1, seven years rigorous imprisonment for the charge No.7, three years rigorous imprisonment for the charge No.14, seven years rigorous imprisonment for the charge No.22, seven years rigorous imprisonment for the charge No.24, nine years rigorous imprisonment for the charge No.26, nine years rigorous imprisonment for the charge No.28, life imprisonment for the charge No.31, seven years rigorous imprisonment for the charge No.33, nine years rigorous imprisonment for the charge No.35, nine years rigorous imprisonment for the charge No.37, seven years rigorous imprisonment for the charge No.39, seven years rigorous imprisonment for the charge No.126, seven years rigorous imprisonment for the charge No.128, life imprisonment for the charge No.133, nine years rigorous imprisonment for the charge No.135, seven years rigorous imprisonment for the charge No.136, seven years rigorous imprisonment for the charge No.206, two years rigorous imprisonment for the charge No.207, life imprisonment for the charge No.209, seven years rigorous imprisonment for the charge No.211, nine years rigorous imprisonment for the charge No.213 and nine years rigorous imprisonment for the charge No.215.
R.7-S.A.Mohamood Ali Khan @ Kutty (A7) A sentence of life imprisonment for the charge No.1, seven years rigorous imprisonment for the charge No.2, seven years rigorous imprisonment for the charge No.7, three years rigorous imprisonment for the charge No.14, seven years rigorous imprisonment for the charge No.140 and seven years rigorous imprisonment for the charge No.142.
R.8-B.Siddiq Ali @ Siddiq @ Imran (A8) A sentence of life imprisonment for the charge No.1, seven years rigorous imprisonment for the charge No.7, three years rigorous imprisonment for the charge No.14, ten years rigorous imprisonment for the charge No.77, life imprisonment for the charge No.78, seven years rigorous imprisonment for the charge No.80, nine years rigorous imprisonment for the charge No.82, nine years rigorous imprisonment for the charge No.84 and three years rigorous imprisonment for the charge No.202.
R.9-Babu @ Ooom Babu (A9) A sentence of life imprisonment for the charge No.1, seven years rigorous imprisonment for the charge No.7, three years rigorous imprisonment for the charge No.14, seven years rigorous imprisonment for the charge No.48, two years rigorous imprisonment for the charge No.49, seven years rigorous imprisonment for the charge No.51, nine years rigorous imprisonment for the charge No.53, nine years rigorous imprisonment for the charge No.55, life imprisonment for the charge No.79, seven years rigorous imprisonment for the charge No.81, nine years rigorous imprisonment for the charge No.83, nine years rigorous imprisonment for the charge No.85, seven years rigorous imprisonment for the charge No.137, two years rigorous imprisonment for the charge No.138, seven years rigorous imprisonment for the charge No.140, seven years rigorous imprisonment for the charge No.142 and three years rigorous imprisonment for the charge No.189.
R.10-S.Zakir Hussain @ Ismail @ Abdul Anus (A10) A sentence of life imprisonment for the charge No.1, seven years rigorous imprisonment for the charge No.7, three years rigorous imprisonment for the charge No.14 and seven years rigorous imprisonment for the charge No.220.
R.11. M.Abdul Salam @ Salam @ Poochaikan Salam (A11) A sentence of life imprisonment for the charge No.1, seven years rigorous imprisonment for the charge No.2, seven years rigorous imprisonment for the charge No.7, three years rigorous imprisonment for the charge No.14, three years rigorous imprisonment for the charge No.18, seven years rigorous imprisonment for the charge No.19, seven years rigorous imprisonment for the charge No.206, two years rigorous imprisonment for the charge No.207, life imprisonment for the charge No.209, seven years rigorous imprisonment for the charge No.211, nine years rigorous imprisonment for the charge No.213 and nine years rigorous imprisonment for the charge No.215.
R.12-J.Aslam @ TADA Aslam (A12) A sentence of life imprisonment for the charge No.1, seven years rigorous imprisonment for the charge No.7, three years rigorous imprisonment for the charge No.14, three years rigorous imprisonment for the charge No.18 and seven years rigorous imprisonment for the charge No.19.
R.13- N. Siraj @ Auto Siraj (A13) A sentence of life imprisonment for the charge No.1, five years rigorous imprisonment for the charge No.14, life imprisonment for the charge No.59, seven years rigorous imprisonment for the charge No.61, nine years rigorous imprisonment for the charge No.63, nine years rigorous imprisonment for the charge No.65, seven years rigorous imprisonment for the charge No.67, seven years rigorous imprisonment for the charge No.114, seven years rigorous imprisonment for the charge No.116 and seven years rigorous imprisonment for the charge No.183.
R.14-M.H.Safoor Rahman (A15) A sentence of life imprisonment for the charge No.1, three years rigorous imprisonment for the charge No.14, seven years rigorous imprisonment for the charge No.110 and seven years rigorous imprisonment for the charge No.112.
R.l5- K.Abbass @ Keelakarai Abbass (A16) A sentence of life imprisonment for the charge No.1, seven years rigorous imprisonment for the charge No.7, three years rigorous imprisonment for the charge No.14, seven years rigorous imprisonment for the charge No.15, nine years rigorous imprisonment for the charge No.16 and seven years rigorous imprisonment for the charge No.17.
R.16-S.Zaffru @ Syed Zafar Ahmed (A17) A sentence of life imprisonment for the charge No.1, seven years rigorous imprisonment for the charge No.2, seven years rigorous imprisonment for the charge No.7, three years rigorous imprisonment for the charge No.14, three years rigorous imprisonment for the charge No.18 and seven years rigorous imprisonment for the charge No.19.
R.17-A.Ismail @ Kathikuthu Ismail (A18) A sentence of life imprisonment for the charge No.1, three years rigorous imprisonment for the charge No.14, seven years rigorous imprisonment is the charge No.41, seven years rigorous imprisonment for the charge No.43, nine years rigorous imprisonment for the charge No.45, nine years rigorous imprisonment for the charge No.47, life imprisonment for the charge No.95, seven years rigorous imprisonment for the charge No.97, nine years rigorous imprisonment for the charge No.99, nine years rigorous imprisonment for the charge No.101, three years rigorous imprisonment for the charge No.165, nine years rigorous imprisonment for the charge No.166, seven years rigorous imprisonment for the charge No.167 and nine years rigorous imprisonment is the charge No.168.
R.18-M.Jaffer @ Makkan Jaffar (A19) A sentence of life imprisonment for the charge No.1, seven years rigorous imprisonment for the charge No.7, three years rigorous imprisonment for the charge No.13, three years rigorous imprisonment for the charge No.14, life imprisonment for the charge No.132 and nine years rigorous imprisonment for the charge No.134.
R.19-A.Mohammed Amjath Ali @ Amjath Ali (A20) A sentence of life imprisonment for the charge No.1, three years rigorous imprisonment for the charge No.14, seven years rigorous imprisonment for the charge No.125, life imprisonment for the charge No.132 and nine years rigorous imprisonment for the charge No.134.
R.20- K.Amman @ Ammanullah (A21) A sentence of life imprisonment for the charge No.1, three years rigorous imprisonment for the charge No.14 and seven years rigorous imprisonment for the charge No.125.
R.21-S.Jahangir @ Jahir (A26) A sentence of life imprisonment for the charge No.1, three years rigorous imprisonment for the charge No.14, life imprisonment for the charge No.87, seven years rigorous imprisonment for the charge No.89, nine years rigorous imprisonment for the charge No.91, nine years rigorous imprisonment for the charge No.93, life imprisonment for the charge No.132, nine years rigorous imprisonment for the charge No.134, seven years rigorous imprisonment for the charge No.143, two years rigorous imprisonment for the charge No.144, seven years rigorous imprisonment for the charge No.146 and seven years rigorous imprisonment for the charge No.148.
R.22-S.Mohammed Muthu @ Musthafa (A27) A sentence of life imprisonment for the charge No.1, seven years rigorous imprisonment for the charge No.7, three years rigorous imprisonment for the charge No.14, ten years rigorous imprisonment for the charge No.77, life imprisonment for the charge No.78, seven years rigorous imprisonment for the charge No.80, nine years rigorous imprisonment for the charge No.82 and nine years rigorous imprisonment for the charge No.84.
R.23-S.Safru @ Sarfudeen (A28) A sentence of life imprisonment for the charge No.1, seven years rigorous imprisonment for the charge No.7, three years rigorous imprisonment for the charge No.14, life imprisonment for the charge No.31, seven years rigorous imprisonment for the charge No.33, nine years rigorous imprisonment for the charge No.35, nine years rigorous imprisonment for the charge No.37, seven years rigorous imprisonment for the charge No.39, seven years rigorous imprisonment for the charge No.50, nine years rigorous imprisonment for the charge No.52, nine years rigorous imprisonment for the charge No.54, seven years rigorous imprisonment for the charge No.139, seven years rigorous imprisonment for the charge No.141, three years rigorous imprisonment for the charge No.151 and seven years rigorous imprisonment for the charge No.152.
R.24-L.M.Hakkim S/o L.K.Majith (A32) A sentence of life imprisonment for the charge No.1, three years rigorous imprisonment for the charge No.14, life imprisonment for the charge No.21, seven years rigorous imprisonment for the charge No.23, nine years rigorous imprisonment for the charge No.25 and nine years rigorous imprisonment for the charge No.27.
R.25-Abu @ M.Abudhageer (A33) A sentence of life imprisonment for the charge No.1, three years rigorous imprisonment for the charge No.14, life imprisonment for the charge No.21, seven years rigorous imprisonment for the charge No.23, nine years rigorous imprisonment for the charge No.25 and nine years rigorous imprisonment for the charge No.27.
R.26-M.Mohammed Rafiq @ Rafiq (A34) A sentence of life imprisonment for the charge No.1, three years rigorous imprisonment for the charge No.14, ten years rigorous imprisonment for the charge No.29, life imprisonment for the charge No.30, seven years rigorous imprisonment for the charge No.32, nine years rigorous imprisonment for the charge No.34 and nine years rigorous imprisonment for the charge No.36.
R.27-J.Noor Mohammed @ Noor (A36) A sentence of life imprisonment for the charge No.1, three years rigorous imprisonment for the charge No.14, life imprisonment for the charge No.40, seven years rigorous imprisonment for the charge No.42, nine years rigorous imprisonment for the charge No.44 and nine years rigorous imprisonment for the charge No.46.
R.28-C.Basha @ Ozeer @ Ozeer Basha (A37) A sentence of life imprisonment for the charge No.1, three years rigorous imprisonment for the charge No.14, life imprisonment for the charge No.41, seven years rigorous imprisonment for the charge No.43, nine years rigorous imprisonment for the charge No.45, nine years rigorous imprisonment for the charge No.47, three years rigorous imprisonment for the charge No.175, nine years rigorous imprisonment for the charge No.176, seven years rigorous imprisonment for the charge No.178, nine years rigorous imprisonment for the charge No.181 and two years rigorous imprisonment for the charge No.182.
R.29-Ibrahim @ Babu, @ Adipatta Babu (A38) A sentence of life imprisonment for the charge No.1, three years rigorous imprisonment for the charge No.14, life imprisonment for the charge No.41, seven years rigorous imprisonment for the charge No.43, nine years rigorous imprisonment for the charge No.45, nine years rigorous imprisonment for the charge No.47, three years rigorous imprisonment for the charge No.165 and nine years rigorous imprisonment for the charge No.166.
R.30-M.Hakkim S/o Mohammed Haneefa (A39) A sentence of life imprisonment for the charge No.1, three years rigorous imprisonment for the charge No.14, life imprisonment for the charge No.41, seven years rigorous imprisonment for the charge No.43, nine years rigorous imprisonment for the charge No.45 and nine years rigorous imprisonment for the charge No.47.
R.31-N.S.Hakkim S/o Syed Mohammed (A40) A sentence of life imprisonment for the charge No.1, three years rigorous imprisonment for the charge No.14, seven years rigorous imprisonment for the charge No.50, nine years rigorous imprisonment for the charge No.52, nine years rigorous imprisonment for the charge No.54, three years rigorous imprisonment for the charge No.56 and 190, seven years rigorous imprisonment for the charge No.206, two years rigorous imprisonment for the charge No.207, life imprisonment for the charge No.209, seven years rigorous imprisonment for the charge No.211, nine years rigorous imprisonment for the charge No.213 and nine years rigorous imprisonment is for the charge No.215.
R.32-E.M.Monoappa @ Mohammed Hasan (A41) A sentence of life imprisonment is for the charge No.1, three years rigorous imprisonment is for the charge No.14, ten years rigorous imprisonment is for the charge No.57, life imprisonment is for the charge No.58, seven years rigorous imprisonment for the charge No.60, nine years rigorous imprisonment for the charge No.62, nine years rigorous imprisonment for the charge No.64.
R.33-B.Abdul Razak, @ Gundu Razak (A43) A sentence of life imprisonment for the charge No.1, three years rigorous imprisonment for the charge No.14, ten years rigorous imprisonment for the charge No.68, life imprisonment for the charge No.69, seven years rigorous imprisonment for the charge No.71, nine years rigorous imprisonment for the charge No.73 and nine years rigorous imprisonment for the charge No.75.
R.34-J.Mohammed Azam (A44) A sentence of life imprisonment for the charge No.1, three years rigorous imprisonment for the charge No.14, ten years rigorous imprisonment for the charge No.68, life imprisonment for the charge No.69, seven years rigorous imprisonment for the charge No.71, nine years rigorous imprisonment for the charge No.73 and nine years rigorous imprisonment for the charge No.75.
R.35-S.Sait @ Sandhu Mohammed (A45) A sentence of life imprisonment for the charge No.1, three years rigorous imprisonment for the charge No.14, life imprisonment for the charge No.86, seven years rigorous imprisonment for the charge No.88, nine years rigorous imprisonment for the charge No.90 and nine years rigorous imprisonment for the charge No.92.
R.36-R.Riaz Mohammed @ Riaz (A46) A sentence of life imprisonment for the charge No.1, three years rigorous imprisonment for the charge No.14, life imprisonment for the charge No.94, seven years rigorous imprisonment for the charge No.96, nine years rigorous imprisonment for the charge No.98 and nine years rigorous imprisonment for the charge No.100.
R.37-M.Saleem @ Saleem Basha (A60) A sentence of life imprisonment for the charge No.1, seven years rigorous imprisonment for the charge No.7, three years rigorous imprisonment for the charge No.14, three years rigorous imprisonment for the charge No.191, seven years rigorous imprisonment for the charge No.206, two years rigorous imprisonment for the charge No.207, life imprisonment for the charge No.209, seven years rigorous imprisonment for the charge No.211, nine years rigorous imprisonment for the charge No.213 and nine years rigorous imprisonment for the charge No.215.
R.38-M.Moosa @ TADA Moosa (A152) A sentence of life imprisonment for the charge No.1, three years rigorous imprisonment for the charge No.14, three years rigorous imprisonment for the charge No.151 and seven years rigorous imprisonment for the charge No.152.
R.39-S.Mohammed Subair @ Subair (A155) A sentence life imprisonment for the charge No.1, seven years rigorous imprisonment for the charge No.14, seven years rigorous imprisonment for the charge No.203, three years rigorous imprisonment for the charge No.204 and five years rigorous imprisonment for the charge No.205.
R.40-S.Syed Mohammed Buhari @ TADA Buhari (A156) A sentence life imprisonment for the charge No.1, three years rigorous imprisonment for the charge No.14, seven years rigorous imprisonment for the charge No.203 and three years rigorous imprisonment for the charge No.204.
R.41-M.Mujibur Rahman @ Anna Colony Mujibur Rahman (A161) A sentence of life imprisonment for the charge No.1, three years rigorous imprisonment for the charge No.14, life imprisonment for the charge No.216, seven years rigorous imprisonment for the charge No.217, nine years rigorous imprisonment for the charge No.218 and nine years rigorous imprisonment for the charge No.219.
R.42-S.K.Mohammed Ali (A163) A sentence of life imprisonment for the charge No.1 and three years rigorous imprisonment for the charge No.14.
R.43-M.Muji @ Mujibur Rahman @ Athupalam Mujibur Rahman (A164) A sentence of life imprisonment for the charge No.1, three years rigorous imprisonment for the charge No.14, life imprisonment for the charge No.208, seven years rigorous imprisonment for the charge No.210, nine years rigorous imprisonment for the charge No.212 and nine years rigorous imprisonment for the charge No.214.
3. The case pertains to serial bomb blast which took place on 14.2.2998 between 3.50 P.M. and 4.20 P.M. when the then President of Bharathiya Janata Party Thiru.L.K.Advani was to address an election meeting at R.S. Puram, in Coimbatore city. There were series of 12 bomb blasts, killing 47 persons and injuring 218 persons. Extensive damage was also caused to private and public properties.
4. On 15.2.1998 in the early morning hours during combing operation by the police in Babulal building at Thirumal Street, at Coimbatore city, a blast took place in which, 6 Muslims were killed and three police personnel sustained injuries. There were bomb explosion on 15.2.1998, 16.2.1998 and 17.2.1998. Due to the effects of bomb blasts which took place between 14.2.1998 and 17.2.1998, 58 persons were killed and about 250 persons were injured. Damages caused to the private and public properties were to the tune of Rs.4.37 Crores. Bombs/explosive materials concealed in 24 other places were later recovered/defused by the police. The facts of this case are dealt with in the judgment in C.A.No.1111 of 2007 batch etc., and therefore, it is not necessary to restate it once again.
5. In the present revision the revision petitioners who are some of the witnesses examined by the prosecution, pray for enhancement of sentence awarded to the Respondents 1 to 43.
6. The trial Court in paragraph Nos. 21 to 25 of its judgment, has recorded the reasons as to why it has not imposed the capital sentence.
" 21.All these details have already been communicated in a signed memorandum submitted by a group of the accused to the Honble High Court in the memorandum. Hence this court considers that in the given circumstances the interests of the accused have not been fully, properly and absolutely safeguarded by proper legal assistance to all the accused. Under such situation and circumstances this court with the available materials have concluded and pronounced the judgement and this court earnestly believes and apprehends that had the legal assistance been properly utilized more details and facts would have come to light in assisting this court to find out the truth. Therefore this court considers this issue as the mitigating factor in favour of the accused.
22.Apart from this factor this court has found out that there had been prejudices on the part of accused which are stated in detail hereunder. That no accused of the 166 accused were granted bail during the trial proceedings to enable them to effectively defend the charges against them. This has deprived them from gathering adequate material which would of any legal support to their plea. Huge volume of records and materials to unimaginable levels have compelled them to curtail certain rights bestowed to them under law. Emergence of factions and groups inside the prison during their prolonged incarceration, under the leadership of A-1 S.A.Basha, A-2 Mohamed Ansari,a group formed by the A-65 to 100 and a separate group not belonging to these three groups amongst the accused resulted a great damage and prejudice in shaping their defense, conduct of the trial proceedings and choosing of lawyers.
23.Apart from that, the schedule of the examination of the witnesses in a random manner without giving adequate time to the defense to prepare themselves to defend them has also caused prejudice. Besides the examination of the corroborative witnesses on different occasions and conduct of the cross examinations also on different occasions also have caused prejudice to the plea of the defense.
24.Many witnesses had been examined in the absence of the connected or concerned accused while they had been produced before any other court for other cases had also caused prejudice to the concerned accused. Besides conflict of interest amongst the accused themselves in their defense has also caused prejudice to their plea of defense. Finally knowingly or inadvertently, admissions made by the learned counsels during the cross examination also has caused prejudice to the case of the accused.
25.These various factors drive this court to come to a decision to decline from ordering capital sentence despite the fact that the nature of the crime committed would attract no less of a death penalty. Therefore these circumstances and factors outweigh the legal ingredients for the awarding of the death penalty. There cannot be any mercy to be shown to these accused since their cruel act of the commission of this crime goes beyond all horizons and purview of mercy. Therefore this court would invoke the maximum prescribed sentences contemplated for those penal provisions with which the accused have been charged. "
7. The learned counsel appearing for the revision petitioners has placed reliance upon the following judgments:-
1. 1970 (3) SCC page 493 - Ram Narain and others vs. State of Uttar Pradesh;
2. (1983) 3 SCC 470 - Machhi Singh and others vs. State of Punjab;
3. (1987) 3 SCC page 80 - Mahesh vs. State of Madhya Pradesh;
4. (1991) 3 SCC page 471- Sevakaperumal vs State of Tamil Nadu;
5. (2002) 7 SCC page 334 - Mohd.Khalid vs. State of West Bengal;
8. It is the submission of the learned counsel appearing for the revision petitioner that the gravity of the offences is very grave in nature and it has been committed with a calculative mind of taking revenge on the innocent public especially the people belonging to Hindu community by planting and exploding bombs at 12 places in Coimbatore which resulted in the death of so many innocent persons and causing extensive damages to the public and private property. The learned counsel appearing for the revision petitioner would further contend that the courts while awarding the sentence, would alive not only the right of criminals but also the right of the victims of the crime and to see that the accused are appropriately punished so as to act as a deterrent. It is also the submission of the learned counsel appearing for the revision petitioners that the brutal murder of 58 innocent persons and injuring more than 250 persons would no doubtly fall in the category of rarest of rare cases attracting capital punishment and trial Court without issuing any proper and cogent reasons, has chosen to award only the sentence of imprisonment ranging to various terms.
9. Per contra, the learned Public Prosecutor would submit that the trial court has taken into consideration the various aspects and also awarded the sentence of imprisonment and the scope of this court in exercise of revisional power to enhance the sentence is very much limited.
10. This court has considered the submissions made by the learned counsel appearing for the revision petitioners and the learned Public Prosecutor.
11. The learned counsel appearing for the revision petitioner would submit that the offence committed by the accused are heinous and grave in nature and it is a clearly case of a terrorist Act. Therefore, no sympathy of any sort ought to have been shown to them and the capital sentence would meet the ends of justice and which would some what heal the wounds of the persons who were affected due to the serial bomb blasts.
12. The attention of this Court was drawn to the judgment of Machhi Singh and others vs. State of Punjab, reported in 1983(3) SCC page 470 wherein, it has been held as follows:-
" The following questions may be asked and answered as a test to determine the 'rarest' of 'rare' case in which death sentence can be inflicted:
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?
The following guidelines which emerge from Bachan Singh case1 will have to be applied to the facts of each individual case where the question of imposition of death sentence arises:
(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the offender also require to be taken into consideration along with the circumstances of the crime.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
Bachan Singh vs. State of Pubjab, (1980) 2 SCC 684: 1980 SCC (Cri) 580: AIR 1980 SC 898 : 1980 Crl. LJ 636, explained.
In rarest of rare cases when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such a sentiment in the following circumstances:
(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.
(2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin commits murder for the sake of money or reward, or cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of bride burning or dowry deaths or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
(4) When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
(5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.
If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare case, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so".
13. In (1987) 3 SCC 80 - Mahesh v. State of M.P., it has been held that:
"It will be a mockery of justice to permit these appellants to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the appellants would be to render the justicing system of this country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon. When we say this, we do not ignore the need for a reformative approach in the sentencing process. But here, we have no alternative but to confirm the death sentence".
14. In 1991 (3) SCC page 471 - Sevaka Perumal v. State of T.N, the facts of the case is that innocent boys from affluent families were taken to far flung places and they were murdered and 4 murders in a span of 5 years were committed for gain in cold-blooded, in a premeditated and planned way. The Sessions Court imposed death sentences which was conformed by this Court and as against that appeal was preferred before the Hon'ble Supreme Court of India and it has been held as follows:-
" There is no infirmity in the sentence awarded by the Sessions Court and confirmed by the High Court warranting interference. The facts would establish his depravity and hardened criminality of the accused. No regard for precious lives of innocent young boys was shown. They adopted the crime of murder for gain as a means of living. The compassionate grounds such as the accused are young men and breadwinners of their family consisting of a young wife, minor child and aged parents would always be present in most cases and are not relevant for interference.
Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats. If the courts did not protect the injured, the injured would then resort to private vengeance. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of order should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that, State of criminal law continues to be as it should be a decisive reflection of social consciousness of society. Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation of sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused and all other attending circumstances are relevant facts which would enter into the area of consideration. For instance a murder committed due to deep seated personal rivalry may not call for penalty of death. But an organised crime or mass murders of innocent people would call for imposition of death sentence as deterrence".
15. The learned counsel also placed reliance upon the judgment reported in 2002 (7) SCC page 334-Mohammad Kalid vs. State of West Bengal, which arose at the prosecution under Terrorist and Disruptive Activities (Prevention) Act, 1987. The facts of the said case are that on 16.3.1993, due to bomb blast in Bow Bazaar area of Calcutta a building was totally demolished/crumbled and there was a partial crumbling down of two other adjacent buildings which resulted in trapping of number of people in which replaces and the large number of have been died. The accused were found guilty and convicted under various provisions of TADA and IPC and appeals were preferred before the Hon'ble Supreme Court of India. The Hon'ble Supreme Court of India considered the meaning of terrorism and held as follows:-
"Terrorism is one of the manifestations of increased lawlessness and cult of violence. Violence and crime constitute a threat to an established order and are a revolt against a civilised society. Terrorism has not been defined under TADA nor is it possible to give a precise definition of terrorism or lay down what constitutes terrorism. It may be possible to describe it as use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. There may be death, injury, or destruction of property or even deprivation of individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is to overawe the Government or disturb the harmony of the society or terrorise people and the society and not only those directly assaulted, with a view to disturb the even tempo, peace and tranquillity of the society and create a sense of fear and insecurity. Whether the criminal act was committed with an intention to strike terror in the people or a section of the people would depend upon the facts of each case. For finding out the intention of the accused, there would hardly be a few cases where there would be direct evidence. It has to be mainly inferred from the circumstances of each case.
Jayawant Dattatray Suryarao v. State of Maharashtra (2001)10 SCC 109 : 2002 SCC (Cri) 897 : Hitendra Vishnu Thakur vs. State of Maharashtra, (1994) 4 SCC 602: 1994 SCC (Cri) 1087, relied on League of Nations Convention (1937), relied on The preparation of bombs and possession of bombs would tantamount to terrorizing the people. Credible evidence proves it to be a terrorist act. The explosion of a large number of live bombs is a clear indication of conspiracy. It was further held that it cannot be contended that if the bombs are for self-defence there was no mens rea. Preparation and storage of bombs are per se illegal acts.
The right of self-defence commences not before a reasonable apprehension arises in the mind of the accused. right is not available if there is sufficient time for recourse to a public authority. Here there was no evidence that there was any indication about an attack on the Muslims and, therefore, the question of any reasonable apprehension does not arise. The cover of self-protection when pierced unravels a sinister design to unleash terror. There was no scope for inferring the so-called view of the accused persons that the police may not help them. That occasion had not arisen".
16. The learned counsel appearing for the revision petitioner would submit that the serial bomb blasts at Coimbatore was purely a terrorist act which resulted in death of large number of peoples and injuries to so many persons and extensive damage to private and public properties and therefore, the trial Court should have awarded the death penalty to the accused/Respondents 1 to 43.
17. The learned counsel for the revision petitioners had also drawn the attention of this Court to the following judgments:
1. 2002 (7) SCC 39 - Tarun Bora alias Alok Hazarika vs. State of Assam;
2. 2003 (8) SCC 461- Nazir Khan v. State of Delhi
3. 2004 (4) SCC 622- Madan Singh vs. State of Bihar
4. 2005(2) SCC 409 - Prakash Kumar @ Prakash Bhutto vs. State of Gujarat.
18. 2002 (7) SCC 39- Tarun Bora alias Alok Hazarika vs. State of Assam pertains to the prosecution in TADA of cadre belonging to Ulfa of Assam wherein the Hon'ble Supreme Court of India has taken into consideration the gravity of the offences and not accepted the plea of the appellant/accused for leniency.
19. 2003(8) SCC 461 - Nazir Khan v. State of Delhi, also pertains to the prosecution under TADA. The facts of the case are that the foreigners were kidnapped for ransom so as to pressurise the Indian Government to release some dreaded militants confined in the jails of India and the designated court has awarded life sentence and challenging the legality of the same appeals were preferred before the Apex Court. The Apex Court while sustaining the conviction and sentence, has also considered the proportionality of the sentence and held as follows:
"The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence that reflects more subtle considerations of culpability that are raised by the special facts of each case. Punishment ought always to fit with the crime".
20. 2004(4) SCC 622- Madan Singh vs. State of Bihar also pertains to the prosecution and conviction under Tada Act and the Hon'ble Supreme Court has considered the meaning of the word terrorism.
21. The sum and substance of the submissions made by the learned counsel appearing for the revision petitioner is that since accused committed by the respondents 1 to 43 who were admittedly terrorist Act, the trial Court has committed a grave error in imposing only sentence of imprisonment and it is not in commensurate with the gravity of the offence and therefore, prayed for enhancement of sentence to one of capital punishment.
22. This Court has carefully considered the submissions made by the respective counsel for the Respondents and the State also. Under Sub-section (2) of
Section 386 of Cr.P.C., this Court is having power to enhance a sentence so as to alter its nature. Sentence being a matter of discretion is well settled and when discretion has been properly exercised along accepted judicial lines, the appellate Court should not interfere to the detriment of the accused, except for very strong reasons which must be disclosed in the judgment. Interference will be justified only when the sentence is manifestly inadequate or unduly lenient in the particular circumstance of a case or when the failure to impose a proper sentence may result in miscarriage of justice. The said proposition has been laid down in the judgment of the Hon'ble Supreme Court of India reported in AIR 1955 Supreme Court page 778 : AIR 1973 SC 467- Bedraj vs. State of U.P.
23. In AIR 1959 SC page 144-Pranabkumar Mitra Vs. State of W.B., it has been held that the power of interference in exercise of revisional jurisdiction in the matter of sentence is discretionary. Keeping the said principles in mind, this Court has considered the reasons assigned by the trial Court while awarding sentence of imprisonment. It is to be noted at this juncture the State has not preferred any appeal for enhancement and in fact, not preferred appeal in respect of acquittal of some of the accused also. The trial of the case was very long drawn affair and during trial, none of the accused were enlarged on bail. In fact at the time of pronouncement of the judgment, some of the accused had already undergone the period of imprisonment awarded by the trial Court. The said fact is also an important factor to be taken into consideration while awarding capital punishment.
24. In the decision reported in 1913 (Vol.14) Lucknow 401-, it has been held that the High Court has power to enhance the sentence of an accused on the application of a private person, but it should not entertain the application by private parties for enhancement of sentence as Courts should not be allowed to become tools in the hands of members of different community giving vent to their private vengeance. The present Revision is preferred by some of the witnesses and the possibility of private vengeance cannot be ruled out as held in the above cited decision.
25. Though the trial Court in paragraph Nos.23 and 24 of its Judgment has recorded the reasons regarding the examination of the witnesses in a random manner without giving adequate time to the Defence to prepare themselves to defend the Accused, which resulted in prejudice and that the examination of witnesses in the absence of Accused, had also caused prejudice, we are not inclined to accept the same for the following reasons.
26. A perusal of the testimonies of witnesses would disclose that the respective counsel appearing for the Accused had cross-examined the witnesses in detail and they have been granted time whenever they required to cross-examine the witnesses. The applications filed by them for deferment of cross-examination were entertained by the trial Court and the Defence Counsel were given fullest opportunity to cross-examine the prosecution witnesses and they have also done so in detail. Therefore, in our considered opinion, the examination of witnesses in a random manner and without the presence of the Accused have not caused any prejudice to the Accused.
27. We also found that apart from the reasons given in paragraph Nos. 23 and 24 of the impugned judgment, the trial Court has taken into consideration all the relevant facts and circumstances and chosen to award sentence of imprisonment against the Respondents 1 to 43. This Court has also independently considered the submissions made on behalf of the Revision Petitioners and also perused the testimonies of the concerned witnesses. We find that the trial Court has properly appreciated the testimonies of witnesses and has recorded sound and tenable reasons for awarding the sentence of imprisonment against the said Respondents.
28. In our considered opinion, the discretion exercised by the trial Court, in awarding sentence of imprisonment cannot set to be arbitrary or unreasonable.
29. This Court finds no error apparent on the face of the record, illegality or infirmity in the discretion exercised by the trial Court while awarding the sentence of imprisonment to the above said accused. Therefore, this revision is dismissed.
gr