DNYANESHWAR SURESH BORKARversusSTATE OF MAHARASHTRA

                          [2019] 4 S.C.R. 863                           863


              DNYANESHWAR SURESH BORKAR                                 A
                                 v.
                  STATE OF MAHARASHTRA
                 (Criminal Appeal No. 1411 of 2018)
                       FEBRUARY 20, 2019                                B
  [A. K. SIKRI. S. ABDUL NAZEER AND M.R. SHAH, JJ.]
       Sentence/Sentencing: Death sentence – For killing a minor
child – Held: The offence committed was brutal, but did not warrant
death sentence as the accused was not a previous convict or a
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professional killer – At the time of commission of offence, he was
22 years of age – His jail conduct was also reported to be good –
Mitigating circumstances being in favour of the appellant, in the
interest of justice, death sentence is commuted to life imprisonment.
      Partly allowing the appeal, the Court
                                                                        D
       HELD: Striking the balance between the aggravating and
mitigating circumstances, mitigating circumstances are in favour
of the accused while commuting the death sentence to life
imprisonment. The mitigating circumstances in favour of the
accused are that : the accused at the time of commission of the
offence was aged of 22 years; that, by now, he has spent 18 years       E
in the jail; that, while in jail, his conduct was good; that, the
accused tried to become a civilized man and completed his
graduation in B.A. from jail. He has tried to become reformative;
that, from the poems, written by him in the jail, it appeared that
he realised his mistake which was committed by him at the time          F
when he was of young age and therefore he can be reformed and
rehabilitated. These details show there was a possibility that
accused would not commit similar criminal acts. That the accused
would not be a continuing threat to the society. In the facts and
circumstances of the case, the decision of capital punishment is
not warranted. [Para 6.1, 7] [866-C-H]                                  G

      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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                                863
864            SUPREME COURT REPORTS                           [2019] 4 S.C.R.


A                              Case Law Reference
            (2017) 4 SCC 393               relied on              Para 4
            (1980) 2 SCC 684               relied on              Para 8
            (2017) 11 SCC 265              relied on              Para 8
B
           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      No.1411 of 2018.
           From the Judgment and Order dated 05.05.2006 of the High Court
      of Judicature at Bombay in Confirmation Case No. 1 of 2005 with
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      Criminal Appeal No. 618 of 2005.
            Anand Grover, Sr. Adv., Himanshu Agarwal, Shadan Farasat,
      Ms. Jahnavi Sindhu, Ms. Shruti Narayan, Anshu Raj Singh, Ms. Tripti
      Tandon, Advs. for the Appellant.
D            Ms. 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 the
      impugned judgment and order dated 05.05.2006 passed by the High Court
E     of Bombay in Confirmation Case No.1 of 2005 with Criminal Appeal
      No.618 of 2005 whereby the High Court has allowed the Confirmation
      Case filed by the State and dismissed the appellant’s Criminal Appeal
      and confirmed the conviction for the offences punishable under Section
      302 of the Indian Penal Code (IPC) and confirmed the death sentence
F     awarded by the learned Sessions Court, the accused viz Dnyaneshwar
      Suresh Borkar has preferred the present appeal.
             2. That the appellant herein-original accused was tried by the
      learned Sessions Court for the offences under Sections 302, 364 and
      Section 201 read with Section 34 of the IPC for having killed a minor
G     child viz ‘Rishikesh’. That the learned Additional Sessions Judge, Pune
      held the appellant herein guilty for the offences punishable under Sections
      302, 364 and Section 201 read with Section 34 of the IPC and awarded
      the capital punishment. The conviction and sentence imposed by the
      learned Additional Sessions Judge have been confirmed by the High
      Court by the impugned judgment and order. Hence the present appeal.
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       DNYANESHWAR SURESH BORKAR v. STATE OF                                  865
            MAHARASHTRA [M. R. SHAH, J.]

       3. At the outset, it is required to be noted that Shri Anand Grover,   A
learned Senior Counsel appearing on behalf of the appellant has fairly
stated and conceded that so far as the conviction is concerned, the
appellant is not challenging the same. However, he has prayed for to
commute the capital punishment imposed by the learned Sessions Court,
confirmed by the High Court. Therefore, as such the present appeal is
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now restricted to the sentence imposed by the learned Additional Sessions
Judge of capital punishment confirmed by the High Court.
       4. Shri Grover has pointed out the mitigating circumstances which
warrant commutation of death sentence to life imprisonment. It is
vehemently submitted that accused, at the time of crime, was aged of
22-23 years. That he neither have any criminal record nor was he a            C
hardened criminal. That he was a student studying in a college without
any history or misdemeanour noted in the college or in the village of his
residence. That he has a widowed mother and is the eldest child. By
now he has undergone 18 years of sentence without remission and with
remission it would be 231/2 years. It is submitted that conduct of the        D
accused in the jail is very good. It is submitted that the appellant’s
behaviour and conduct in jail has shown that though the appellant may
have committed a crime when he was a young adult, he has used his
incarceration to reflect on his actions and learnt from his mistakes. As
an 18 years old boy, he was a young impressionable citizen trying to
make something out of himself and in the process lost his way and made        E
a fatal mistake. However, if there is anything the appellant’s years in
prison have shown, it is that he is by no means a hardened criminal and
most definitely not beyond the pale of reformation. He further submitted
that during the span of 18 years in the jail, not only he has learned a
lesson but he has realized the mistake committed by him and he has tried      F
to become a civilized person and that he has completed his graduation in
Bachelor of Arts (B.A.) and has also undergone training of Gandhian
thoughts undertaken by Gandhi Research Foundation, Jalgaon. It is further
submitted that the poems written by the accused in the jail reflect his
current mind of state and by which it can be said that he has realized the
mistake committed by him at the time when he was just 22 years of age         G
and that he is reformative. In view of the above submission and relying
upon 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 life
imprisonment.
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866            SUPREME COURT REPORTS                           [2019] 4 S.C.R.


A            5. Ms. Deepa Kulkarni learned Counsel appearing for the State
      has submitted that in view of the fact that the accused killed a minor
      child for ransom, which has ultimately affected the family members of
      the deceased and the manner in which the offence was committed was
      pre-planned, it is prayed not to show any leniency.
B           6. We have heard the learned counsel appearing on behalf of the
      respective parties and the prayer made by the learned counsel appearing
      on behalf of the appellant to commute the death sentence to life
      imprisonment.
             6.1 Having heard learned counsel appearing on behalf of the
C     parties on the sentence, we are of the opinion that, in the facts and
      circumstances of the case, capital punishment is not warranted. Striking
      the balance between the aggravating and mitigating circumstances, we
      are of the opinion that mitigating circumstances are in favour of the
      accused while commuting the death sentence to life imprisonment. The
      mitigating circumstances in favour of the accused are that :
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         a. the accused at the time of commission of the offence was aged of
             22 years;
         b. that, by now, he has spent 18 years in the jail;
         c. that, while in jail, his conduct is good;
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         d. that, the accused has tried to join the society and has tried to
            become 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 he
             has realised his mistake which was committed by him at the time
F
             when 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 would
      not commit similar criminal acts. That the accused would not be a
G     continuing threat to the society. Considering the aforesaid facts and
      circumstances of the case and applying the law laid down by this Court
      in the case of Sunil (supra), we are of the opinion that in the facts and
      circumstances of the case, the decision of capital punishment is not
      warranted. We have considered each of the circumstance and the crime

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        DNYANESHWAR SURESH BORKAR v. STATE OF                                    867
             MAHARASHTRA [M. R. SHAH, J.]

as well as the facts leading to the commission of the crime by the accused.      A
Though, we acknowledge the gravity of the offence, we are unable to
satisfy ourselves that this case would fall in the category of ‘rarest of
rare 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 or
                                                                                 B
a professional killer. At the time of commission of offence, he was 22
years of age. His jail conduct is also reported to be good.
      8. Considering the aforesaid mitigating circumstances and
considering the decision of this Court in Bachan Singh v. State of
Punjab (1980) 2 SCC 684 as well as another decision of this Court in
Shyam Singh alias Bhima v. State of Madhya Pradesh (2017) 11                     C
SCC 265 and the decision of this Court in Sunil (Supra), we think that it
will be in the interest of justice to commute the death sentence to life
imprisonment.
       9. In view of the reasons stated above, present appeal is allowed
in part. The conviction of the accused for the offences under Sections           D
302, 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 the
reasons stated above, we commute the death sentence to life
imprisonment. It will be open to the accused to apply for remission to the
State Government which may be considered in accordance with law                  E
and on its own merits. Present appeal is disposed of accordingly in terms
of the above.

Devika Gujral                                           Appeal partly allowed.

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