Rare Judgement: Kashmir Court Awards Death Sentence

In 2005, a minor baby of around six years went missing in Mehjoor Nagar. It triggered a crisis as there were no leads anywhere. Finally, police set up a special investigation camp and after a month-long investigation arrested Farooq Ahmad Pinzoo. He had raped the minor, put her little body in a sack and dumped it into a trench. Earlier, accused of sodomy, the bus conductor had married and divorced his wife. He was arrested and sent to jail and later he moved on bail as well. Finally, the court of Second Additional Sessions Judge presided by Tahir Khurshid Raina awarded a death penalty to the convict.

This is considered to be a rare verdict especially in wake of the fact that courts across J&K have rarely given the death penalty to the criminals.In the larger public interest, Kashmir Life is reproducing part of the long judgment that pertains to the quantum of the punishment.

In the court of 2nd Additional Sessions Judge, Srinagar

Present. Tahir  Khurshid  Raina

File No: 172/2na Session

Date of institution: 12.11.2005

Date of Decision: 30.12.2017

State through P/S Sadder

Versus

Farooq  Ahmed Pinzoo Son of Md Shaban Pinzoo R/o Mahjoor Nagar

Case FIR No FIR no 180 of 2005 P/S  Sadder U/S 302/364/376/ 201 RPC

Mr Mujeeeb Andrabi, APP for the state. Accused with his counsel present.

QUANTUM OF SENTENCE

1. After convicting the accused for the commission of offences under sections 364,376,302,201 RPC, the case was kept for hearing on the quantum of sentence.
2. Learned APP has strenuously prayed to the court for an award of death penalty to the accused for commission of horrendous crime with a child of tender age and thereafter threw her dead body in the trench which on its recovery sent a shock wave to the entire society, resulted into lot of public outcry.  He argued  that  keeping  in view  the  entire  complexion of the case, it  falls  in  the  category   of  “rarest  of  the  rare”   which  entails   death penalty
3. On the other hand counsel for the convict argued that case was based on circumstantial evidence carrying weak chain and hence life imprisonment is the suitable punishment for the convict.
4. This court in furtherance of the onerous duty to award just and appropriate punishment resorted to the mandate of constitutional Bench judgment  of  Hon’ble  SC given  in  case titled  Bachan Singh  v. State  of Punjab AIR 1980  SC, resorted  to various  enquiries  from  the convict  and his  counsel  so as to  enlist  both  aggravating  and  mitigating factors  to  be considered for awarding  just and proportionate  sentence.
5. There is infact no structured sentencing guidelines for the courts to award sentence. Though the Malimath committee on Reforms on Criminal Justice system emphasized the need for introducing sentencing guidelines for the courts in order to minimize uncertainty,  but  no  such structural  guidelines are available in this regard.
6. However, we have got judicial guidance from the superior courts in the form of principle’s  and factors that courts  have to  take  into account while exercising discretion in sentencing.
7. As quoted above, the main guiding principles for awarding sentence in the court in the murder case are laid down in Bachan Singh case (supra) followed by Machhi Singh and catena of other cases.
8. In the case of murder, the convict is to be awarded either death penalty or life imprisonment. However, Hon’ble S.C has held that life imprisonment is a rule and death penalty is an exception to be passed only in rarest of the rare case. And “rarest of the rare case” are mentioned as which are extremely brutal, grotesque, diabolical, revolting  or committed in a dastardly manner so as to arouse intense and extreme  indignation  of the community.
9. In Machi Singh case, Hon’ble SC further held that while deciding between life imprisonment and capital punishment, courts have to analyse —-  is there something uncommon about the crime, which warrants option of life imprisonment inadequate and call for a death penalty. And the conscious of the society Is the main factor to  be  taken  while  deciding between lifer and capital punishment to be awarded to the convict.
10. Fact remains that death penalty has been a continuous debate between abolitionist and retentiolist. In Jag-mahan’s case, Hon’ble SC held that If  a murder  Is diabolically committed and cruelly executed! would justify  death penalty. In spite of the heated debate on the abolition of death penalty, It  Is still retained in the Code by majority countries in the world  and taken as the only potent deterrence against the criminals  who have done highly horrendous crime against state and society.
11. Our country too has retained it as the part of penology. The superior courts infact in their judgments and in guiding principles laid down over the years, kept the option of death penalty intact, subject to the gravity of offence, coupled with many other factors to be considered for award of death penalty. Hon’ble SC in Bachan Singh’s case (supra) while discussing the cantors of death penalty and its requirement in the Penal code, referred to the famous statement of the jurist of his times – Sir James Fitz James Stephen who said:

“No other punishment deters man so effectively from committing crime as the punishment of death. This  is one   of   those proposition  which  is  difficult  to prove simply because they  are  in  themselves more oblivious than any  proof can  make them.”

12. Fact remains, punishment is  the  way  in  which society expresses its  condemnation  for  wrong doing.  And in order to maintain respect for law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the object of punishment as being deterrent or reformative and nothing else. The truth is that some crimes are so outrageous that society insists on adequate punishment, because wrong doer deserves it, irrespective of fact whether it is deterrent or not.

In Jameel V/S State of  UP  SCC  (Supp) 303, the Hon’ble SC held:

“The general policy which the courts have followed with regard to sentencing is that the punishment must be appropriate and proportional to the gravity of the offence committed. Imposition of the appropriate punishment is the matter in which the courts respond to the society’s cry for justice against the criminals. Justice demands that the courts should impose punishment befitting the crime so that the court reflects public abhorrence of the crime.”

13. Further held:

“It was 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. The sentencing  courts are expected to   consider   all   relevant   facts  and  circumstances  having  bearing  on  the question  of sentence  and proceed to Impose a sentence commensurate  with the gravity  of the offence.”

14. In Gopal Singh vs State of Utrakhand D.O.D 8.2.1010, it is held in Para 18 as under:

“Just punishment is the collective cry of the society. While the collective cry has to be kept upper most in the mind, simultaneously the principle of proportionately between the crime and punishment cannot be totally brushed aside. The principle of  just  punishment is the  bedrock  of sentencing in respect of a criminal offence……….”

15. Finally, I feel profitable to refer to the deep concern shown by the  Hon’ble  SC in case titled    Madan  Gopal  Kakkad  Vs Naval  Dubey 1992 (3) sec 204. What is said in the last para of the judgment   is reproduced below:

“Before   parting with the judgment, with deep concern, we may point out that though all sexual assaults on female children are not reported and do not come to light, yet there is an alarming and shocking increase of sexual offences committed   on children. That is due to the reasons that children are ignorant of the act of rape and are not able to offer resistance and become easy prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young gtr!s. Therefore such offenders who are menace to the civilized society should be mercilessly and inexorably punished in the severest terms. We feel that judges who bear the sword of justice should not hes1tate to use that sword with the utmost severity, to the full and to the end, if the gravity of the offences so demand.”

31. Now keeping in  view  these broad principles on the issue  of  awarding  sentence  by  the  courts,  let’s  address  the  quantum  of sentence in the case in hand.
32. As mentioned in the opening lines of the judgment, a little doll of  just  six  years  of age, who was yet  to  bloom and add to  the beauty  of  the  world  was  crushed  to  death  in  the  most  horrendous  and barbaric  manner  in the year 2005 by the accused/convict. After doing this highly  detestable act of extreme depravity, he wrapped her dead body in a sack and  threw  it  in  a  trench  to  conceal it  from  the  eyes of  the  people around.  And as the evidence goes, when all members of said locality were on search, he was a restless mute spectator of this unfortunate incident. This incident sent a shockwave in the entire area and every one came out to search her and yearn and prayed for her safe recovery. Finally on fifth day of her missing, she was recovered from the trench in a sack. Thousands of people assembled on the spot to see this horrible incident. And when people saw her dead body, there was a condemnation around and an outcry to nab the culprit soon. Public discontentment was so huge that police has to install a  special  camp  there  and  after  a  month’s  time  they  got  succeeded in nabbing  the  culprit  who  was none else but  the  resident  of  same locality whom the deceased of tender age would have taken him with respect and custodian of her life.
33. The learned APP vociferously argued and prayed for death penalty to the accused. He stated that the facts of the case are “Resipsa logitur’ i.e.  facts speaks for itself  and invite  death penalty.  He submitted that  this  incident  sent  a shockwave  in  the  entire  region,  which  kept  the police on toes for months to investigate the matter to match  with the cry of the people to nab the accused. He also submitted that there is a rise in the sexual offence against the women and where the child is the victim; court has to be more severest in awarding the punishment. He prayed that a strong  message in  this  case must  travel  to  the  society,  conveying an element of deterrence and the proportionality of the punishment matching with the gravity of the offence which was so barbaric that it  shocked the conscious of the society and people felt concerned about the safety of their children. He cited a judgment titled (Kamita Tiwari v. State of MP) DOD 4.9.1996 by Hon’ble SC carrying almost the same facts wherein the death penalty awarded by the Sessions court was upheld.
34. I have dealt with the issue very meticulously keeping in view the entire journey travelled by the superior courts on the science of penology vis-a-vis lifer and capital punishment is concerned.
35. Infact, Society speaks though Judge while sentence is being awarded to the convict. The facts of the case which stand proved reveals that a man of around 40- years who happened to be member of the same locality has committed a horrendous act of extreme depravity with the child who was just like his own daughter.
36. Even otherwise, as per our cultural ethos, the elders treat the child of the same locality as their common human asset to be taken care of jointly, to take care of their upbringing so that they may finally bring laurels for whole society. No one can even think in his imagination that a little doll who might have seen the accused with many hopes, especially as her custodian and in whose lap she would have felt all care and comforts, became responsible for crushing her at her budding stage of her life.
37. How he would have allured her for taking her to his home with profane intentions and how innocently she would have responded to him is really shocking. Then what would have been the situation for her when the man whom she expected to be her guardian, custodian and a father figure, turned villain and roughed her up brutally  which is absolutely grossest. She had  struggled  to  escape but  in  vain  to  muster  courage  to counter the vulgarity  of a able bodied man of his vicinity.
38. On the other hand, I also made attempt to know the mitigating  factors.  However, during  this  endeavour  I came  to  know  that accused is illiterate. He was a young man when his father expired.  He go two brothers who are taking care of his mother. He got married, but after one year of marriage, he divorced his wife. When he committed the offence, he was then bachelor. Earlier to profession of driver, he was a conductor of the bus.
39. His counsel argued that he is a man of good character and no conviction except this is to his discredit. However, learned APP rebutted this argument  by  stating  that  it  has come in  the  evidence that  he  was nabbed in  the  case only  an account of his notoriety  in  the  area and his earlier attempt  of sodomy on a child. Though the mother of the said child turned hostile in the court, but she confirmed slapping on the face of child by the convict. However, one another lady of the   same locality   who was witness in the case has stated before this court about his attempt of sodomy on the child.
40. It looks that throughout of his life journey till date, he has been in the company  of conductors and drivers  where it is presumed, he has got least lessons for human values and ideal conduct as the responsible person.
41. Finally, there is infact a steep rise in the sexual offences against women and children. And when child is a victim of such a horrendous act, then the court has to speak in the manners which matches with the collective conscious of the society and also to give deterrent message to those who carry the  same traits  to  face the  fate  which any perpetrator  of such crime will face from the courts of law.
42. Woman is the inextricable part of our society. We cannot imagine human existence without her. She has to be respected, cared, admired and adorned if the society has to survive and to be called a true civilized society.  All religions have emphasized on her respect and honor. However, I am pained to record the concern of the court that our society is fastly  lacking  that  probity  where woman feel to have such honorable place. Burgeoning crimes against woman are self explanatory in this regard and the present crime in which accused stand convicted reflects how man turns into beast.
43. However, there is a silver lining also. A serious voice is coming out from some quarters to curb this unfortunate situation wherein our woman folk feel insecure. Such voices need to be responded positively by all of us.
44. Courts cannot afford  to  remain  mute  spectators  in  this lofty endeavors and have to award stringent punishments when any such offender gets convicted by the court, as the case herein so that a proper and strong  message travels  in  the  length  and breadth  of the  society  for such offenders and their ilk.
45. Let us not wait for angels to come from the sky to reform our society. We  all  have  to  collectively  rise  to the  occasion  and   move in tandem  to save our  society from  criminality  and criminals  and obnoxious elements  to  make  it a habitat  of civilized  people with  high  morals, values and  probity   as  their   hallmark.   This will only elevate our status in the community of nations.
46. I made the attempt to consider both aggravating and mitigating factors consciously. After taking into account both, I feel that the aggravating factors outweigh the mitigating factors.
47. I find not a single clinching mitigating   factor which warrants a different opinion. Simply because he is not earlier convicted does not mean he is an angel and has done something first time for which he should be shown any leniency in the award of sentence. It can be like this also that  his  earlier  attempt  would not  have  seen light  of  the  day, to remained escaped from  the  long arm  of the  law. But ultimately he was caught.
48. Right to life is in fact the sacramental and celebrated right of the constitution which can be taken only by due course of law. Here he has taken the right to life of a small doll that too in the barbaric manner for satisfying her lust who was yet to bloom and enjoy the life and beauty of this world. He cannot now claim to be ensured same to him, once he is proved to be the murderer of a small girl who would have looked upon him with expectations, hope and safety in his presence.
49. The events unfolded from 31st July 2005 when deceased went missing till his arrest and his disclosure and recovery reveal a saga of shock and dismay in the whole vicinity. Mandate of Hon’ble SC in Bachan Singh and other cases thereafter talk of giving Death penalty in rarest of rare cases. The whole chain of evidence before this court when tested on the touchstone of principles quoted above, put this case in the rarest of the rare category. My opinion gets fully justified by the judgment of Hon’ble SC Kamti Tiwari case (supra) wherein the facts of the case were absolutely same and court upheld the capital punishment to the convict.

Accordingly convict is awarded capital punishment.

He’ shall be hanged till death.

35. To keep it on record/ accused has got arrested on 5.9.2005 and remained behind the bar till 24.7.2010. He was granted interim bail which he enjoyed for more than six years.  Later when he was  found regularly absent in the trial1   the same was canceled on 23.11.2017   by the court and he was again sent to judicial custody on 28.11.2017. Since then till date, he is  in  judicial  custody. So the  total  time  he has remained in custody comes to  four years eleven months and fourteen days.
36. After announcing the sentence1 the copy of the judgment is given to him in the open court and advised to prefer appeal in the Hon’bl High court/ Srinagar within fourteen days.
37. As the court has awarded death penalty to the accused/ same is required to be confirmed by the Hon’ble High court. Accordingly, the entire case file along with judgment is submitted to  Hon’ble High court Srinagar for confirmation under section 376 RPC.

Announced.

30.12.2017

(Tahir Khurshid Raina)

2nd  Addl Sessions Judge

Srinagar