DNYANESHWAR SURESH BORKAR versus STATE OF MAHARASHTRA on 20 February 2019

[2019] 4 S.C.R. 863

DNYANESHWAR SURESH BORKAR

v.

STATE OF MAHARASHTRA

(Criminal Appeal No. 1411 of 2018)

FEBRUARY 20, 2019

[A. K. SIKRI. S. ABDUL NAZEER AND M.R. SHAH, JJ.]

Sentence/Sentencing: Death sentence – For killing a minorchild – Held: The offence committed was brutal, but did not warrantdeath sentence as the accused was not a previous convict or aprofessional killer – At the time of commission of offence, he was22 years of age – His jail conduct was also reported to be good –Mitigating circumstances being in favour of the appellant, in theinterest of justice, death sentence is commuted to life imprisonment.

Partly allowing the appeal, the Court

HELD: Striking the balance between the aggravating andmitigating circumstances, mitigating circumstances are in favourof the accused while commuting the death sentence to lifeimprisonment. The mitigating circumstances in favour of theaccused are that : the accused at the time of commission of theoffence was aged of 22 years; that, by now, he has spent 18 yearsin the jail; that, while in jail, his conduct was good; that, theaccused tried to become a civilized man and completed hisgraduation in B.A. from jail. He has tried to become reformative;that, from the poems, written by him in the jail, it appeared thathe realised his mistake which was committed by him at the timewhen he was of young age and therefore he can be reformed andrehabilitated. These details show there was a possibility thataccused would not commit similar criminal acts. That the accusedwould not be a continuing threat to the society. In the facts andcircumstances of the case, the decision of capital punishment isnot warranted. [Para 6.1, 7] [866-C-H]

Sunil v. State of Madhya Pradesh(2017) 4 SCC 393;Bachan Singh v. State of Punjab (1980) 2 SCC 684;Shyam Singh alias Bhima v. State of Madhya Pradesh(2017) 11 SCC 265 – relied on.

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CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.1411 of 2018.

From the Judgment and Order dated 05.05.2006 of the High Courtof Judicature at Bombay in Confirmation Case No. 1 of 2005 withCCriminal Appeal No. 618 of 2005.

Anand Grover, Sr. Adv., Himanshu Agarwal, Shadan Farasat,Ms. Jahnavi Sindhu, Ms. Shruti Narayan, Anshu Raj Singh, Ms. TriptiTandon, Advs. for the Appellant.

DMs. Deepa Kulkarni, Nishant Ramakantrao Katneshwarkar, Advs.for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J. 1. Feeling aggrieved and dissatisfied with theimpugned judgment and order dated 05.05.2006 passed by the High CourtEof Bombay in Confirmation Case No.1 of 2005 with Criminal AppealNo.618 of 2005 whereby the High Court has allowed the ConfirmationCase filed by the State and dismissed the appellant’s Criminal Appealand confirmed the conviction for the offences punishable under Section302 of the Indian Penal Code (IPC) and confirmed the death sentenceFawarded by the learned Sessions Court, the accused viz DnyaneshwarSuresh Borkar has preferred the present appeal.

2. That the appellant herein-original accused was tried by thelearned Sessions Court for the offences under Sections 302, 364 andSection 201 read with Section 34 of the IPC for having killed a minorGchild viz ‘Rishikesh’. That the learned Additional Sessions Judge, Puneheld the appellant herein guilty for the offences punishable under Sections302, 364 and Section 201 read with Section 34 of the IPC and awardedthe capital punishment. The conviction and sentence imposed by thelearned Additional Sessions Judge have been confirmed by the HighCourt by the impugned judgment and order. Hence the present appeal.

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3. At the outset, it is required to be noted that Shri Anand Grover,learned Senior Counsel appearing on behalf of the appellant has fairlystated and conceded that so far as the conviction is concerned, theappellant is not challenging the same. However, he has prayed for tocommute the capital punishment imposed by the learned Sessions Court,confirmed by the High Court. Therefore, as such the present appeal isnow restricted to the sentence imposed by the learned Additional SessionsJudge of capital punishment confirmed by the High Court.

4. Shri Grover has pointed out the mitigating circumstances whichwarrant commutation of death sentence to life imprisonment. It isvehemently submitted that accused, at the time of crime, was aged of22-23 years. That he neither have any criminal record nor was he ahardened criminal. That he was a student studying in a college withoutany history or misdemeanour noted in the college or in the village of hisresidence. That he has a widowed mother and is the eldest child. Bynow he has undergone 18 years of sentence without remission and withremission it would be 23[1/2] years. It is submitted that conduct of theaccused in the jail is very good. It is submitted that the appellant’sbehaviour and conduct in jail has shown that though the appellant mayhave committed a crime when he was a young adult, he has used hisincarceration to reflect on his actions and learnt from his mistakes. Asan 18 years old boy, he was a young impressionable citizen trying tomake something out of himself and in the process lost his way and madea fatal mistake. However, if there is anything the appellant’s years inprison have shown, it is that he is by no means a hardened criminal andmost definitely not beyond the pale of reformation. He further submittedthat during the span of 18 years in the jail, not only he has learned alesson but he has realized the mistake committed by him and he has triedto become a civilized person and that he has completed his graduation inBachelor of Arts (B.A.) and has also undergone training of Gandhianthoughts undertaken by Gandhi Research Foundation, Jalgaon. It is furthersubmitted that the poems written by the accused in the jail reflect hiscurrent mind of state and by which it can be said that he has realized themistake committed by him at the time when he was just 22 years of ageand that he is reformative. In view of the above submission and relyingupon the decision of this Court in Sunil v. State of Madhya Pradesh(2017) 4 SCC 393, it is prayed to commute the death sentence to lifeimprisonment.

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5. Ms. Deepa Kulkarni learned Counsel appearing for the Statehas submitted that in view of the fact that the accused killed a minorchild for ransom, which has ultimately affected the family members ofthe deceased and the manner in which the offence was committed was A

pre-planned, it is prayed not to show any leniency.B6. We have heard the learned counsel appearing on behalf of therespective parties and the prayer made by the learned counsel appearingon behalf of the appellant to commute the death sentence to lifeimprisonment.

6.1 Having heard learned counsel appearing on behalf of theCparties on the sentence, we are of the opinion that, in the facts andcircumstances of the case, capital punishment is not warranted. Strikingthe balance between the aggravating and mitigating circumstances, weare of the opinion that mitigating circumstances are in favour of theaccused while commuting the death sentence to life imprisonment. Themitigating circumstances in favour of the accused are that :D

a. the accused at the time of commission of the offence was aged of22 years;

b. that, by now, he has spent 18 years in the jail;

c. that, while in jail, his conduct is good; E

d. that, the accused has tried to join the society and has tried tobecome a civilized man and has completed his graduation in B.A.from jail. He has tried to become reformative;

e. that, from the poems, written by him in the jail, it appears that hehas realised his mistake which was committed by him at the timeFwhen he was of young age and that he is reformative;

f. therefore the appellant can be reformed and rehabilitated.

7. The above details show there is a possibility that accused wouldnot commit similar criminal acts. That the accused would not be aGcontinuing threat to the society. Considering the aforesaid facts andcircumstances of the case and applying the law laid down by this Courtin the case of Sunil (supra), we are of the opinion that in the facts andcircumstances of the case, the decision of capital punishment is notwarranted. We have considered each of the circumstance and the crime H

as well as the facts leading to the commission of the crime by the accused.Though, we acknowledge the gravity of the offence, we are unable tosatisfy ourselves that this case would fall in the category of ‘rarest ofrare case’ warranting the death sentence. The offence committed,undoubtedly, can be said to be brutal, but does not warrant death sentence.It is required to be noted that the accused was not a previous convict ora professional killer. At the time of commission of offence, he was 22years of age. His jail conduct is also reported to be good.

8. Considering the aforesaid mitigating circumstances andconsidering the decision of this Court in Bachan Singh v. State ofPunjab (1980) 2 SCC 684 as well as another decision of this Court inShyam Singh alias Bhima v. State of Madhya Pradesh (2017) 11SCC 265 and the decision of this Court in Sunil (Supra), we think that itwill be in the interest of justice to commute the death sentence to lifeimprisonment.

9. In view of the reasons stated above, present appeal is allowedin part. The conviction of the accused for the offences under Sections302, 364 and Section 201 read with Section 34 of the IPC is confirmed.However, in the facts and circumstances of the case and in view of thereasons stated above, we commute the death sentence to lifeimprisonment. It will be open to the accused to apply for remission to theState Government which may be considered in accordance with lawand on its own merits. Present appeal is disposed of accordingly in termsof the above.

Devika Gujral

Appeal partly allowed.

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