LexBIRJU versus STATE OF M.P.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2014] 1 S.C.R. 1047 BIRJU v. STATE OF M.P. (Criminal Appeal Nos.1352-1353 of 2012) FEBRUARY 14, 2014 [K.S. RADHAKRISHNAN AND VIKRAMAJIT SEN, JJ.] PENAL CODE, 1860: A B s.302 /PC and s.27 of the Arms Act - Murder of a child c aged 1 year - Conviction - Death sentence awarded by courts below, keeping in view a large number of criminal cases pending against accused - Held: Prosecution, by evidence of eye witness and medical evidence and FSL report, has successfully proved the cause of death and use of firearm by 0 accused - The findings of trial court as affirmed by High Court that offences under s. 302 /PC and s.27 of the Arms Act have been made out against accused are concurred with - However, sentence of death is converted into one of imprisonment for 20 years without remission, over the period already E undergone. · SENTENCE/SENTENCING: Death sentence awarded by courts below - Based on criminal antecedents of accused - Held: Death was caused F in retaliation to not meeting the demand of accused - It is not a rarest of rare case warranting capital punishment - Prior conviction will be a relevant factor, but in the instant case, accused has only been charge-sheeted and not convicted and, therefore, it is not a relevant factor for applying the RR G test so as to award capital punishment - However, it may be relevant factor for awarding a sentence - In the instant case, when there are more than two dozen cases against accused of which three relate to offence of murder and two to attempt 1047 H 1048 SUPREME COURT REPORTS [2014] 1 S.C.R. A to murder, it may have an impact on the sentencing policy, since the presence of accused could be a continuing threat to society and calls for longer period of incarceration - This is a fit case where 20 years of rigorous imprisonment, without remission, to the appellant, over the period which he has B already undergone, would be an adequate sentence and will render substantial justice - Criminal law - Motive. EVIDENCE: Evidence of hostile witness - Held: Cannot be discarded C as a whole and relevant parts thereof, which are admissible in law, can be used, either by prosecution or defence. CODE OF CRIMINAL PROCEDURE, 1973: s.235(2) - Hearing on question of sentence - Held: In D awarding sentence, in appropriate cases, while hearing the accused uls 235(2) Cr.P.C., courts can also call for a report from the Probation Officer and examine whether accused is likely to indulge in commission of any crime or there is any probability of accused being reformed and rehabilitated - E Probation of Offenders Act, 1958. The appellant-accused was prosecuted for committing the murder of a child aged one year who was in the arms of his grand-father (PW-1 ), on the allegation F that the appellant demanded Rs.100/- from PW-1 to purchase liquor and on refusal, he took over a country made pistol and fired a shot which hit the child, resulting into his death. The trial court convicted the accused and keeping the fact in view that he had 24 criminal cases G pending against him out of which 3 were murder cases and 2 were of attempt to murder cases, sentenced him to death. The High Court confirmed the conviction and the death sentence. It took the view that there was no probability that the accused would not commit criminal H acts of violence and it would constitute a continuing BIRJU v. STATE OF M.P. 1049 threat to the society and there would be no probability A that the accused could be reformed or rehabilitated. Disposing of·the appeals, the Court HELD: 1.1 PWs 1 to 4 and 7 fully and completely supported the case of the prosecution. Their version is 8 consistent and highly reliable. Eye witnesses' version is fully corroborated with post-mortem and FSL reports. PW6, of course, has been declared as hostile, but the evidence of a hostile witness cannot be discarded as a whole and the relevant parts thereof, which are C admissible in law, can be used, either by the prosecution or the defence. [para 9] [1055-F-H; 1056-A] Muniappan and Others v. State of Tamil Nadu 2010 (10) SCR 262 = (201 O) 9 sec 567 - relied on. D 1.2 Motive for committing the murder was evidently for getting the money to consume liquor for which, unfortunately, a child of one year became the casualty. PW10, the Doctor opined that the wound was caused by firearm and the deceased died within 24 hours of post- E mortem examination. The prosecution
Excerpt shown. Read the full judgment & AI analysis in Lexace.