Bombay High Court
The State Of Maharashtra, Through ... vs Imdad Ali Waid Ali Sayyad on 25 April, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL CONFIRMATION CASE NO.2 OF 2015
WITH CRIMINAL APPEAL NO.43 OF 2016
CRIMINAL CONFIRMATION CASE NO.2 OF 2015
State of Maharashtra,
through Police Station Incharge,
Police Station, Ramnagar,
Chandrapur, Tah. And Distt.
Chandrapur. ........ APPLICANT
// VERSUS //
Imdad Ali Waid Ali Sayyad,
r/o. Mata Nagar, Tumsar,
District Bhandara,
(Detained in District Prison,
Chandrapur). ........ RESPONDENT
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Mr.V.A.Thakare, A.P.P. for the Applicant/State.
Ms F.N.Haidari, Adv. (appointed) for the
Respondent/Accused.
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******
::: Uploaded on - 25/04/2016 ::: Downloaded on - 26/04/2016 00:10:55 :::
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CRIMINAL APPEAL NO.43 OF 2016 :
Imdad Ali Waid Ali Sayyad,
Aged about 53 years, Occ.Labour,
r/o. Mata Nagar, Tumsar,
District Bhandara,
(Presently detained in Central
Prison, Nagpur, C-9199) ........ APPELLANT
// VERSUS //
State of Maharashtra,
through Police Station Incharge,
Police Station, Ramnagar,
Chandrapur, Tah. and Distt.
Chandrapur. ........ RESPONDENT
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Ms F.N.Haidari, Adv. (appointed) for the
Appellant/Accused.
Mr.V.A.Thakare, A.P.P. for the Respondent/State.
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CORAM : B. R. GAVAI &
MRS.SWAPNA JOSHI, JJ.
DATE : 12th/25th April, 2016.
ORAL JUDGMENT (Per B. R. Gavai, J) :
1. Since the learned Additional Sessions Judge, Chandrapur
vide his Judgment and Order dt.3.12.2015 passed in Sessions Case
No.81 of 2014 has awarded death sentence to the appellant/accused
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herein and directed him to be hanged by neck till death, present
reference has been made to this Court. The Criminal Appeal has been
filed by the appellant being aggrieved by the Judgment and Order of
sentence as recorded by the learned trial Judge thereby holding him
guilty for the offences punishable under Sections 302 and 201 of the
Indian Penal Code and sentencing him to death and to suffer rigorous
imprisonment for three years respectively and to pay a fine of
Rs.1000/-; in default, to suffer simple imprisonment for three months
respectively.
2. The prosecution case, in nutshell, as could be gathered
from the material placed on record, is thus :
The accused is husband of deceased Shamshad. Deceased
Isana was daughter of deceased Shamshad and the appellant.
Deceased Harunisa was mother of deceased Shamshad. It is the
prosecution case that the matrimonial relations between deceased
Shamshad and the appellant were not cordial. It is further the
prosecution case that the appellant wanted the house, in which they
were residing and which belonged to Shamshad, to be transferred by
Shamshad in his name. It is the prosecution case that, on account of
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dispute between deceased Shamshad and the appellant, the appellant
left the house 2 to 3 years prior to the date of incident and that, after
the appellant left the house, Shamshad married one Rafiur Raheman,
who was much younger to her in age. It is further the prosecution
case that Shamshad had married Rafiur Raheman without divorcing
the appellant. It is also the prosecution case that, even thereafter, the
appellant used to visit the house demanding Shamshad to transfer
half share in the house in his name.
3. The further prosecution case is that, on the day of incident
i.e. on 2.4.2014, between 8.00 to 8.30 p.m., the accused came at the
house of deceased Shamshad and picked up a quarrel on some
grounds and thereafter, by means of knife, assaulted Shamshad, Isana
as well as Harunisa. The neighbourers heard the hue and cry from the
house of deceased Shamshad and thereafter, some of the
neighbourers including Tawangarkhan Gulzarkhan (PW-5) and the
second husband of deceased Shamshad namely Rafiur Raheman
carried all the three injured persons to the Civil Hospital,
Chandrapur, where Shamshad and Isana were declared dead by the
doctor and Harunisa was alive. Harunisa was transferred to the
Intensive Care Unit in the hospital. Asil Ali (PW-1), son of deceased
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Shamshad and the appellant, was informed by the neighbourers on
telephone. He immediately came to their house, but it was reported
to him that all the injured were shifted to the Civil hospital,
Chandrapur. When he went inside the house, he found the house
flooded with blood. He then went to the hospital, where he came to
know that his mother and sister had died and his grandmother was
seriously injured. It is further prosecution case that, on inquiry by
Asin Ali with injured Harunisa in the I.C.U., she told him that the
accused had come to their house and had picked up a quarrel with
Shamshad and thereafter, assaulted her by means of Khanjar.
Accordingly, Asin Ali (PW-1) lodged oral report with the Police
Station, Ramnagar, Chandrapur below Exh.10. On the basis of oral
report, printed F.I.R. came to be registered vide Crime No.104 of
2014 below Exh.11.
4. On the basis of said F.I.R., P.I. Shivaji Vishwanath Bachate
(PW-10) carried on investigation. He immediately visited the spot,
prepared spot panchanama, seized various incriminating articles from
the spot. The dead bodies of Shamshad and Isana were referred for
post mortem. He recorded dying declaration of injured Harunisa
below Exh.69. He also sent requisition to the Executive Magistrate for
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recording the dying declaration of deceased Harunisa. Accordingly,
the dying declaration came to be recorded by the Santosh Vijayrao
Khandre (PW-7), Executive Magistrate. Since the accused was not
traceable, search warrant came to be issued below Exh.71. The
accused came to be arrested after about 1 ½ months from the date of
incident on 13.5.2014. While arresting the accused, certain material
was seized from him vide panchanama below Exh.74 on 17.5.2014. A
statement was made by the accused on a memorandum under Section
27 of the Indian Evidence Act below Exh.50 with regard to
concealment of knife used in commission of the crime. Said knife
came to be seized vide panchanama below Exh.51. During
investigation, voluminous evidence was collected by prosecution. We
do not propose to reproduce the entire material inasmuch as in the
later part of the Judgment, we will consider the vital material, on
which the prosecution as well as the defence rely.
5. On conclusion of investigation, charge sheet came to be
filed in the Court of learned Chief Judicial Magistrate, Chandrapur.
Since the offence was exclusively triable by the Court of Sessions, the
case was committed to the Court of learned Sessions Judge,
Chandrapur. The learned Sessions Judge framed charges on
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20.9.2014 below Exh.3. The accused pleaded not guilty and claimed
to be tried. The prosecution in all examined ten witnesses in addition
to exhibiting voluminous documentary evidence. At the conclusion of
the trial, the learned trial Judge passed the order of conviction and
sentence as aforesaid. As such, the present reference and appeal by
the accused.
6. We have heard Ms F.N.Haidari, learned Counsel appointed
to appear from the Legal Aid Panel on behalf of the
appellant/accused. The learned Counsel appearing on behalf of the
appellant/convict submits that the prosecution case is full of lacunas.
She submits that, on one hand, it is the prosecution case that the
second husband of Shamshad namely Rafiur had taken all the three
deceased to the hospital and on the other hand, Tawangarkhan
Gulzarkhan (PW-5) in his evidence claims that it is he who had taken
the deceased to the hospital. Learned Counsel further submits that
the prosecution had neither examined the said Rafiur or Shalik who is
said to have informed Asil Ali (PW1) about the incident. The learned
Counsel further submits that the alleged eye witness i.e.
Tawangarkhan Gulzarkhan (PW-5) cannot be said to be a trustworthy
eye witness. The learned Counsel submits that the said witness is
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also a panch witness to all the panchanamas and therefore, he is a
stock witness. Learned Counsel submits that though Tawangarkhan
Gulzarkhan (PW-5) was throughout with the Investigating agency, his
statement is recorded on the next date. She submits that the very
conduct of the said witness in not informing the police about the said
incident creates a serious doubt regarding veracity of his testimony.
The learned Counsel further submits that the prosecution has also not
seized the blood stained clothes from this witness. The learned
Counsel relying on various Judgments of the Apex Court as well as
this Court submits that if blood stained clothes of the witness, who
alleges to have taken the injured persons to the hospital, are not
seized, the very credibility of said witness is at stake. The learned
Counsel, therefore, submits that the evidence of said eye witness
Tawangarkhan Gulzarkhan (PW-5) is required to be totally discarded.
7. The learned Counsel submits that, insofar as two written
dying declarations are concerned, the said dying declarations are not
trustworthy at all. She submits that, in the dying declaration which is
below Exh.55, there are various erasers. It is further submitted that
the dying declarations do not have a certification by doctor at the
beginning as well as at the end regarding mental as well as physical
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condition of deceased Harunisa to make the dying declarations. She
further submits that, even in the dying declaration below Exh.69,
there is no certification by the doctor. The learned Counsel further
submits that, if the thumb impression on both the dying declarations
are compared, it will show that the dying declarations are not
genuine. The learned Counsel further submits that perusal of
evidence of Dr.Vikrant Dhawande (PW-8) as well as medico-legal
papers below Exh.63 (report of Harunisa by General hospital,
Chandrapur) would show that the patient was not in the fit condition
to make the dying declaration. The learned Counsel further submits
that the document below Exh.66 (Requisition to the Civil Surgeon for
Postmortem examination) would also fortify the said position. The
learned Counsel further, for the same reason, submits that the oral
dying declarations allegedly given to Asil Ali (PW-1) and
Tawangarkhan Gulzarkhan (PW-5) cannot be believed.
8. Ms F.N.Haidari, learned Counsel further submits that, if
the timings of both the written dying declarations are compared, it
could be seen that there is overlapping of time and it is not possible
that both the dying declarations could be recorded within the said
span of time.
10 conf2.15.odt
9. Insofar as seizure of the weapon allegedly used by the
present appellant under memorandum u/s.27 of the Indian Evidence
Act, 1872 is concerned, the learned Counsel submits that the seizure
is from the open place being accessible to one and all and therefore,
the said recovery would be of no assistance to the prosecution. She
further submits that, in any way, the circumstance regarding blood
stains being found on the said knife and other materials having blood
of blood group "A", which is the blood group of deceased Harunisa,
having not been put to the appellant, the said circumstance cannot be
used against the appellant.
10. It is further submitted that the charge u/s.452 of the
Indian Penal Code is not framed. The learned Counsel further submits
that though it has come in the evidence of I.O. P.I. Bachate (PW-10)
that the mobile seized from the accused was belonging to one Umesh,
there is no investigation as to how the same has come in the hands of
the appellant. She further submits that the CDRs (Call Detail Reports)
are also not proved. It is, therefore, submitted that the order of
conviction is not sustainable in law and the appeal filed by the
appellant/accused deserves to be allowed.
11 conf2.15.odt
11. The learned Counsel relies on the following Judgments of
the Apex Court as well as this Court in support of various
propositions which have been enumerated hereinaboven :
a) 2014 ALL MR (Cri) 3882, Mahesh Vasant
Salunke .vs. State of Maharashtra.
b) 2016 (1) Mh.L.J. (Cri) 493, Vilas @ Bandu
Punjabrao Misal .vs. State of Maharashtra.
c) 2005 ALL MR (Cri) 1599, Suresh s/o. Arjun
d)
Dodorkar (Sonar) .vs. State of Maharashtra.
2010 ALL MR (Cri) 147, Suresh s/o.
Shrirang Mandawgane .vs. State of
Maharashtra.
e) 2014 ALL MR (Cri) 5089, Parasram
Chandrasha Ghante .vs. State of
Maharashtra.
f) 2009 ALL MR (Cri) 2931, Dnyandeo
Dhandiba Jadhav and Others .vs. State of
Maharashtra.
g) 2014 (1) SCC (Cri) 677, Sujit Biswas .vs.
State of Assam.
h) Criminal Appeal No.384 of 2009, Praful @
Prabhakar Ramaji Kohad .vs. State of
Maharashtra (Judgment by Nagpur Bench).
12 conf2.15.odt
(i) 2013 ALL MR (Cri) 2750, Ishwar s/o.
Pandurang Masram .vs. State of
Maharashtra.
(j) 2013 ALL MR (Cri) 2240 (SC), Raj Kumar
Singh @ Raju @ Batya .vs. State of
Rajasthan.
(k) 1995 Supp. (3) 357, Akhilesh Hajam .vs.
State of Bihar.
(l) Criminal Appeal No.341 of 2012 (SC), D.
Thamodaran .vs. Kandasamy and another.
12.
Per contra, Mr.V.A.Thakare, learned A.P.P. for the State
submits that the evidence of Tawangarkhan Gulzarkhan (PW-5)
clearly implicates the present appellant. He submits that the F.I.R. is
immediately lodged by the son of present appellant himself. He
submits that there is no reason as to why a son should falsely
implicate his father. It is further submitted that, insofar as both the
dying declarations are concerned, the evidence of Dr.Ulhas Sarode
(PW-6) would reveal that deceased Harunisa was fully fit and
conscious at the time of recording her statement by the Executive
Magistrate. He has further submitted that he had examined Harunisa
and opined that she was fit to give statement. It is, therefore,
submitted that the attack on the dying declarations is without
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substance. The learned A.P.P. further submits that merely because
the blood stained clothes of witnesses are not seized, it cannot be a
ground to falsify the prosecution version. The learned A.P.P. further
submits that the circumstances like : driving license of the appellant
being seized from the spot; seizure of knife used in the crime under
memorandum of the appellant u/s.27 of the Indian Evidence Act; the
C.A. report finding the said seized materials having blood of blood
group 'A', which is the blood group of deceased Harunisa
unclinchingly establish the prosecution case beyond reasonable
doubt. The learned A.P.P. further submits that merely because there
are certain loopholes in the investigation, it cannot be a ground for
disbelieving the prosecution case, if it otherwise establishes guilt of
the accused.
13. The learned A.P.P. relies on the following Judgments in
support of submissions made by him.
a) Vadivelu Thevar and another .vs. State of
Madras, AIR 1957 SC 614.
b) Surajdeo Yadav .vs. State of Bihar, AIR 1996 SC
3157.
14 conf2.15.odt
c) Kathi Bharat Vajsur and another vs. State of
Gujarat, (2012) 5 SCC 724.
d) Babu Ram vs. State (Delhi Administration) and
Others, 1998 SCC (Cri) 597.
e) Ganga Singh .vs. State of Madhya Pradesh,
(2013) 7 SCC 278.
f) Sri Bhagwan .vs. State of Uttar Pradesh, (2013)
12 SCC 137.
g) (2005) 10 SCC 701, Mishrilal and Others .vs.
State of M.P. and Others.
h) Khuji @ Surendra Tiwari .vs. State of M.P., AIR
1991 SC 1853.
I) State of Punjab .vs. Mohinder Singh and Others,
reported in (2007) 13 SCC 560.
j) Yuvaraj Ambar Mohite .vs. State of Maharashtra,
(2006) 12 SCC 512.
k) Balwant Singh and another .vs. State of
Haryana, AIR 1995 SC 84.
l) Shivaji Sahabrao Bobade and another .vs. State
of Maharashtra, (1973) 2 SCC 793.
m) Anjanappa .vs. State of Karnataka, (2014) 2 SCC
n) State of Haryana .vs. Harpal Singh and Others,
(1978) 4 SCC 465.
15 conf2.15.odt
o) Ponnusamy .vs. State of Tamil Nadu,
represented by its Inspector of Police, (2012) 11
SCC 355.
p) Vithal .vs. State of Maharashtra, 2007 Cr.L.J.
q) Sheikh Rafi .vs. State of A.P. and another, 2007
Cri.L.J. 2746.
r) Jai Dev and and another .vs. State of Punjab,
AIR 1963 SC 612(1).
s) Himachal Pradesh Administration .vs. Shri Om
Prakash, (1972) 1 SCC 249.
t) Ashok Debbarama @ Achak Debbarama .vs.
State of Tripura, AIR 2014 SC (Supp) 1434.
u) Jai Shree Yadav .vs. State of Uttar Pradesh, 2004
Cri.L.J. 4826.
v) Bachan Singh .vs. State of Punjab, 1980 (2) SCC
w) Machhi Singh and Others vs. State of Punjab,
1983 (3) SCC 470.
x) Deepak Rai .vs. State of Bihar ,203 (19) SCC 421.
y) Shubnam .vs. State of Uttar Pradesh, 2015 (6)
SCC 632.
z) Mofil Khan and another .vs. State of Jharkhand,
2015 (1) SCC 67.
aa) Ravji @ Ram Chandra vs. State of Rajasthan,
1996 (2) SCC 175.
16 conf2.15.odt
bb) Babloo @ Mubarik Hussain .vs. State of
Rajasthan, 2006 (13) SCC 116.
cc) Umashankar Panda .vs. State of M.P., 1996 (8)
SCC 110.
dd) Purushottam Dashrath Bhorate .vs. State of
Maharashtra, 2015 (6) SCC 652.
ee) State of Maharashtra .vs. Rakesh Manohar
Kamble @ Neeraj Ramesh Wakekar and another,
2014 ALL MR (Cri).
ff) State of Maharashtra vs. Shtrughana Baban
Meshram, 2015 (4) Bom.C.R. (Cri) 744.
ig
14. With the assistance of the Ms F.N.Haidari, learned Counsel
appointed to appear on behalf of the appellant and Mr.V.A.Thakare,
learned A.P.P., we have scrutinized the entire evidence in detail.
From the material placed on record, it would reveal that the
prosecution case mainly rests on the following :
A) two dying declarations Exh.55 and Exh.69, one
recorded by the I.O. and the another recorded by the
Executive Magistrate,
B) two oral dying declarations one given to Asil Ali
(PW-1) and the another one given to Tawangarkhan
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Gulzarkhan (PW-5),
C) motive that the appellant was enraged since
deceased Shamshad had refused to transfer part of the house
in the name of the appellant.
D) the ocular testimony of Tawangarkhan
Gulzarkhan (PW-5),
E) the F.I.R. lodged by Asil Ali (PW-1) implicating
the present appellant,
F)
finding of driving license and mobile handset of
the appellant on the spot,
G) seizure of rexine bag and key chain from the
appellant while he was arrested, wherein the mobile number
of the appellant was written,
H) memorandum of accused u/s.27 of the Indian
Evidence Act leading to seizure of the weapon used in the
crime,
I) the Query report by Medical Officer certifying that
the injuries on the person of the deceased are possible by the
said weapon and the Chemical Analyser's report finding blood
stains of blood group 'A' on the driving license of the
appellant and the weapon seized at his instance.
18 conf2.15.odt
15. We will deal with each of the factors independently.
Firstly, we will deal with the dying declarations.
16. Exh.69 is the dying declaration recorded by I.O. Shivaji
Vishwanath Bachate (PW-10). Perusal of the said dying declaration
would reveal that there is no endorsement on the same prior to
recording of the dying declaration that maker thereof was examined
by the Medical Officer and that he found the maker of the statement
to be physically and mentally fit to give the statement. Nodoubt that,
in the said dying declaration, deceased Harunisa has clearly
implicated the present appellant. On the dying declaration, there is a
thumb impression of the deceased showing the time put therein as
'10.40 p.m'. There is also a signature of Dr.Ulhas Sarode (PW-6)
below the said dying declaration. The same also shows time to be
'10.40 hours'. However, even at the end of the dying declaration,
there is no endorsement that Dr.Ulhas Sarode was present
throughout recording of the dying declaration and that the deceased
was in a physical and mentally fit position to make statement.
17. The next is the dying declaration recorded by Santosh
Vijayrao Khandre (PW-7), Executive Magistrate. Perusal of the dying
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declaration would reveal that though there is an endorsement prior to
declaration by Dr.Ulhas Sarode (PW-6) that the deceased was fit for
giving statement, no time is mentioned therein. It could be seen that,
in the said dying declaration, on the first page, there in a printed
format having column nos 1 to 11. However, it appears that, since the
space in column no.8 was insufficient, after the printed format, again
narration has been written. The thumb impression of the deceased is
taken at two places one is at column no.10 on the first page and the
second one is at the end at page no.2 of the said declaration. The
timing at which the said dying declaration starts is shown to be '10.25
hours'. Perusal of the said dying declaration would reveal that, at
various places, there are erasers and new words are substituted.
Perusal of evidence of Santosh Khandre (PW-7) would reveal that the
said witness has clearly admitted in his cross-examination that
neither the Medical Officer nor he had mentioned timing about
fitness given by the Medical Officer below Exh.54. He has further
admitted that the erasers and overwritings upon Exh.55 (Dying
declaration) is in his handwriting. He has further admitted that he
has not made his initials near erasers and overwritings upon Exh.55.
18. It could further be noted that the medical case papers
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regarding treatment of deceased Harunisa. which is at Exh.63 shows
that when she was admitted at 9.10 p.m., her general condition was
not satisfactory. The medical papers would also show that the blood
transfusion was given to her twice while she was under treatment.
The evidence of Dr.Vikrant Dhawande (PW-8), who was treating the
said patient, shows that he has clearly admitted in his examination-
in-chief itself that the patient's general condition was not satisfactory.
He has further stated that he had tried to treat her by blood
transmission and even after blood transmission, the patient was not
improving. He has admitted that the patient's condition was critical.
19. It is further to be noted that, at around 9.30 p.m., on the
date of incident, an intimation was given by the Duty Officer-
incharge, Police Aid Centre, General Hospital, Chandrapur to the
Medical Officer seeking certification as to whether deceased Harunisa
was fit to give statement. Same is exhibited below Exh.56. On the
said memo, a certificate is given by Medical Officer that the patient
was not able to give such a statement. Along with the said requisition,
a statement has been recorded by the Duty Officer-incharge, Police
Aid Centre of one Ayyub Bhai Kasam Bhai Kacchi. He narrates about
Shamshad, Isana and Harunissa being brought to the hospital
21 conf2.15.odt
wherein Shamshad and Isana were found to be dead. He further
states that Harunisa was in critically injured condition. She was
brought to the Casualty ward.
20. Perusal of the evidence of Dr.Ulhas Anna Sarode (PW-6)
would further reveal that he states that the Executive Magistrate
called for his opinion in between 8.20 p.m. to 8.25 p.m. He further
states that the Executive Magistrate started recording statement of
Harunisa at 8.25 p.m. and completed the process of recording her
statement within 10 to 15 minutes thereafter. Thereafter, he left the
I.C.U. and did not examine her thereafter.
21. It could be seen that the endorsement in respect of the
time at which the dying declaration below Exh.69 was over is shown
to be '10.40 p.m'. Whereas the dying declaration below Ex.55 shows
that it commenced at '10.25' and has come to an end at '11.45'. As
already discussed hereinabove, the evidence of Dr.Vikrant Khushalrao
Dhawande shows that the general condition of Harunisa was not
satisfactory and the memo below Exh.56 shows that, at 9.30 p.m., the
patient was not able to give statement and hence, the statement of
one another person namely Ayyub Khan was recorded. All these
22 conf2.15.odt
aspects create a serious doubt as to whether the deceased was in a
condition to give dying declaration or not. Nodoubt that it is a settled
law that, even on the basis of dying declaration, conviction of accused
can be rested. However, for doing the same, the Court must come to
the conclusion that the dying declaration is free from any doubt; it is
trustworthy, reliable and is one which inspires confidence in the mind
of the Court. From the aforesaid factors narrated hereinabove, we
find that it cannot be said that the two written dying declarations are
free from doubt; inasmuch there is a serious doubt as to whether the
deceased was in physically and mentally fit condition to give the
dying declarations.
22. Insofar as the oral dying declarations allegedly given to
Asil Ali (PW-1) and Tawangarkhan Gulzarkhan (PW-5) are
concerned, we find that since it is in serious doubt as to whether the
deceased was in a physically and mentally fit condition to make a
statement, the said dying declarations also cannot be relied upon.
23. Insofar as motive is concerned, we find that prosecution
has failed to prove that the house was in the name of deceased
Shamshad. On the contrary, the material placed on record would
23 conf2.15.odt
show that the house was in the name of deceased Harunisa. As such,
we find that prosecution has also failed to establish motive beyond
reasonable doubt.
24. That leaves us with the evidence of Tawangarkhan
Gulzarkhan (PW-5). He states in his evidence that, on the day of
incident, he had gone of Warora naka and had come back to his
house at around 8.30 p.m., and noticed that there were shouts
coming out from the house of Harunisa. He further states that he also
rushed towards the house of Harunisa. He witnessed that the accused
was holding Khanjar and caught hold the hair of Isana and thereafter
assaulted her by said Khanjar upon back side of her neck. Earlier also,
he had seen blood oozing from her remaining body. Isana thereafter
fell on the ground and thereafter, Shamshad came out of house.
Shamshad was also seriously injured and blood was oozing from
various parts of her body. The accused thereafter assaulted behind
the back side of her neck and thereafter Shamshad fell on the ground.
The said witness further states that he has witnessed that blood was
flowing just like water from tap. He thereafter tried to search for an
auto but he could not get the same. At last, he brought one
ambulance by driving the same. Tawangarkhan Gulzarkhan (PW-5)
24 conf2.15.odt
further states that, after he raised shouts, some people gathered on
the spot. He thereafter carried Harunisa, Shamshad and Isana to
Government Hospital, Chandrapur in the same Ambulance with the
help of people. Harunisa was also serious at that time but she was
alive and talking. Harunisa was stating that the assault was done by
the accused. The doctor, on examination, declared Shamshad and
Isana dead and admitted Harunisa for further treatment.
25.
The evidence of this witness is sought to be attacked on
two grounds : First that he is a stock witness, inasmuch as he is also a
witness to all the panchanamas. Secondly, it is sought to be attacked
on the ground that he was not telling truth. It is also submitted that
though he was with police throughout the night, his statement came
to be recorded on the next date.
26. The Bench consisting of Hon'ble three Judges of the Apex
Court, as early as in the year 1957, in the case of Vadivelu Thevar
and another .vs. State of Madras reported in AIR 1957 SC 614 have
observed thus :
25 conf2.15.odt
"11.In view of these considerations, we have no hesitation in
holding that the contention that in a murder case, the court
should insist upon plurality of witnesses, is much too broadly
stated. Section 134 of the Indian Evidence Act, has
categorically laid it down that " no particular number of
witnesses shall, in any case, be required for the proof of any
fact." The legislature determined, as long ago as 1872,
presumably after due consideration of the pros and cons,
that it shall not be necessary for proof or disproof of a fact,
to call any particular number of witnesses. In England, both
before and after the passing of the Indian Evidence Act,
1872, there have been a number of statutes as set out in
Sarkar's Law of Evidence - 9th Edition, at pp. 1100 and
1101, forbidding convictions on the testimony of a single
witness. The Indian Legislature has not insisted on laying
down any such exceptions to the general rule recognized in
Section 134 quoted above. The section enshrines the well
recognized maxim that " Evidence has to be weighed and not
counted". Our Legislature has given statutory recognition to
the fact that administration of justice may be hampered if a
particular number of witnesses were to be insisted upon. It is
not seldom that a crime has been committed in the presence
of only one witness, leaving aside those cases which are not
of uncommon occurrence, where determination of guilt
depends entirely on circumstantial evidence. If the
Legislature were to insist upon plurality of witnesses, cases
where the testimony of a single witness only could be
26 conf2.15.odt
available in proof of the crime, would go unpunished. It is
here that the discretion of the presiding judge comes into
play. The matter thus must depend upon the circumstances
of each case and the quality of the evidence of the single
witness whose testimony has to be either accepted or rejected.
If such a testimony is found by the court to be entirely
reliable, there is no legal impediment to the conviction of the
accused person on such proof. Even as the guilt of an accused
person may be proved by the testimony of a single witness,
the innocence of an accused person may be established on the
testimony of a single witness, even though a considerable
number of witnesses may be forthcoming to testify to the
truth of the case for the prosecution. Hence, in our opinion,
it is a sound and well- established rule of law that the court
is concerned with the quality and not with the quantity of
the evidence necessary for proving or disproving a fact.
Generally speaking, oral testimony in this context may be
classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should
have no difficulty in coming to its conclusion either way - it
may convict or may acquit on the testimony of a single
witness, if it is found to be above reproach or suspicion of
27 conf2.15.odt
interestedness, incompetence or subornation. In the second
category, the court, equally has no difficulty in coming to its
conclusion. It is in the third category of cases, that the court
has to be circumspect and has to look for corroboration in
material particulars by reliable testimony, direct or
circumstantial. There is another danger in insisting on
plurality of witnesses. Irrespective of the quality of the oral
evidence of a single witness, if courts were to insist on
plurality of witnesses in proof of any fact, they will be
indirectly encouraging subornation of witnesses. Situations
may arise and do arise where only a single person is
available to give evidence in support of a disputed fact. The
court naturally has to weigh carefully such a testimony and
if it is satisfied that the evidence is reliable and free from all
taints which tend to render oral testimony open to suspicion,
it becomes its duty to act upon such testimony. The law
reports contain many precedents where the court had to
depend and act upon the testimony of a single witness in
support of the prosecution. There are exceptions to this rule,
for example, in cases of sexual offences or of the testimony of
an approver; both these are cases in which the oral
testimony is, by its very nature, suspect, being that of a
participator in crime. But, where there are no such
exceptional reasons operating, it becomes the duty of the
court to convict,if it is satisfied that the testimony of a single
witness is entirely reliable. We have, therefore, no reasons to
refuse to act upon the testimony of the first witness, which is
28 conf2.15.odt
the only reliable evidence in support of the prosecution.
27. It could thus be seen that Their Lordships have held that there
are three categories of witnesses : a) wholly reliable, b) wholly
unreliable and c) neither wholly reliable nor wholly unreliable. It has
further been held by Their Lordships that in case of wholly reliable
testimony, there should be no difficulty in coming to the conclusion
either way i.e. conviction or acquittal on the testimony of a single
witness. It has further been held that, even in case of wholly
unreliable witness, there should be no difficulty inasmuch as the
evidence of said witness could be of no use. It has been held by the
Hon'ble Apex Court that, only in the case of third category, the Court
has to be circumspect and has to look for corroboration in material
particulars by reliable testimony, direct or circumstantial.
28. In the light of these guiding principles, our first duty
would be to examine as to in what category of aforesaid three
categories, testimony of Tawangarkhan Gulzarkhan (PW-5) would
come. As already discussed hereinabove, we have held that the
evidence of Tawangarkhan Gulzarkhan (PW-5) insofar as oral dying
declaration is concerned, the same cannot be believed. However, the
29 conf2.15.odt
principle " falsus in uno, falsus in omnibus " is not applicable in India.
As such, we will have to scrutinise the evidence for separating chaff
from the grain.
29. An Opportunity was given to the appellant herein to cross-
examine the witness to challenge the veracity of this witness. As
already discussed hereinabove, in examination-in-chief,
Tawangarkhan Gulzarkhan (PW-5) has given eye witness account.
However, perusal of the cross-examination would reveal that there is
no attack in the cross-examination to the eye witness account given
by the said witness. Perusal of the cross-examination would reveal
that the attack in the cross-examination is only on two aspects. One
with regard to physical and mental condition of Harunisa to make the
dying declaration. The suggestions are that either Harunisa could not
have made dying declaration to this witness or he could not have
entered in I.C.U. wherein the deceased could have talked to him.
However, insofar as the actual attack is concerned, no effort of
whatsoever nature has been made in his cross-examination to attack
the veracity of this witness. On the contrary, perusal of the entire
cross-examination would reveal that the entire effort has been made
in order to bring the case under one of the exceptions to Section 300
30 conf2.15.odt
of the Indian Penal Code. In the circumstances, we have no hesitation
to hold that the testimony of Tawangarkhan Gulzarkhan (PW-5) has
gone totally unchallenged and unshaken insofar as the aspect of this
witness personally witnessing the incident is concerned.
30. Insofar as the contention of the learned Counsel for the
appellant herein that Tawangarkhan Gulzarkhan (PW-5) is a stock
witness is concerned, neither any suggestion is given to this witness
or P.I. Bachate (PW-10) that he is a stock witness and he is deposing
falsely at the instance of police. In that view of the matter, merely
because the witness has acted as a panch witness, in our view, it
would not be sufficient enough to discard his testimony. It is further
to be noted that the spot panchanama which also contains map of the
spot of incident would clearly show that the house of Tawangarkhan
(PW-5) is exactly opposite to the house of the deceased Harunisa,
where the incident has taken place. The map would also show that
on the western side, in front of the house where the incident has
taken place, there is cement tiled road and an electric pole
no.D14/D270 and 4/6/A/P007. Since we have disbelieved the
evidence of Tawangarkhan Gulzarkhan (PW-5) insofar as oral dying
declaration is concerned and believed his evidence insofar as actual
31 conf2.15.odt
witnessing the incident is concerned, his evidence would fall in the
category neither 'wholly reliable' nor 'wholly unreliable'. As such, as a
matter of caution, it will be necessary to have some corroboration to
the ocular testimony of Tawangarkhan (PW-5).
31. Insofar as the contention of the learned Counsel for the
appellant herein that, since the clothes of Tawangarkhan Gulzarkhan
(PW-5) were not seized, an adverse inference should be drawn is
concerned, it will be relevant to refer to the observations in the
Judgment of Their Lordships of the Apex Court in the case of
Balwant Singh vs. State of Haryana reported in AIR 1995 SC 84,
which are thus :
"There is nothing on record to show that the clothes of
PW 8 and PW 10 had not been stained with blood
while lifting the deceased and the mere negligence of
the investigating officer to take their clothes into
possession cannot affect the trustworthiness of these
witnesses. The explanation given by PW 3 about the
absence of entry of the arrival of injured Suraj Bhan at
the Primary Health Centre is sound and does not
detract from the reliability of the prosecution case. "
32 conf2.15.odt
32. It will also be appropriate to refer to the Judgment of the
Apex Court in the case of Jai Shree Yadav .vs. State of U.P. reported
in 2004 Cr.L.J. 4826, wherein it is observed thus :
" It was also pointed out from his evidence that though his
father was profusely bleeding the clothes of this witness
were not blood stained which indicated that he never even
touched the body of his father which is an unnatural
conduct on the part of a son present at the time of the
murder of his father. This witness when cross-examined in
this regard, submitted that since his father had died already
he did not carry the body of his father nor did he touch the
body of his father. In our opinion different people react
differently to a given situation and from the fact that this
witness did not choose to fall on the body of his father or
carry his dead body from where it was lying, by itself
cannot be a ground to reject his evidence. "
33. In that view of the matter, we find that the contention on
behalf of the appellant herein that since blood stained clothes of
Tawangarkhan (PW-5) are not seized, his evidence cannot be
believed needs to be rejected.
34. Asil Ali (PW-1) is son of the appellant herein and deceased
33 conf2.15.odt
Shamshad. He is the first informant. On the basis of his oral report
below Exh.10, the First Information Report vide Crime No.104 of
2014 below Exh.11 came to be registered.
35. By now it is a settled principle of law that the First
Information Report is not a substantive piece of evidence, but it can
be used either for the purpose of corroboration or contradiction. Asil
Ali (PW-1) is not an eye witness. However, on receipt of information,
he has immediately lodged the F.I.R. In the F.I.R., he has clearly
implicated his first father to be the person who had assaulted his
mother, sister and grandmother with knife. The First Information
Report is sought to be attacked on the ground that there is a delay of
2½ hours in recording the FIR. However, in the cross-examination of
either Asil Ali (PW-1) or cross-examination of I.O. P.I. Bachate (PW-
10), no question has been asked by the defence with regard to delay
in lodging the F.I.R. In any case, it appears that, after receipt of the
information regarding commission of crime in the Police Station, P.I,
Bachate (PW-10) immediately set the investigation into motion. He
visited the spot and the hospital. As such, we find that the attack on
the said ground would not be of much assistance to the defence.
34 conf2.15.odt
36. That leaves us with the memorandum of appellant herein
u/s.27 of the Indian Evidence Act and consequent recovery of weapon
used in commission of the crime. The memorandum u/s.27 is below
Ex.50. Only such part of the statement on memorandum u/s.27
which distinctively leads to the discovery of incriminating material
would be admissible in evidence. Though the memorandum below
Exh.50 is totally incriminating in nature, only such part of the
statement which leads to discovery of incriminating material can be
read in evidence. In the memorandum, the accused has stated that,
while going along the road, he had kept concealed near graveyard the
knife with which he had attacked his wife, daughter and mother-in-
law. Perusal of panchanama at Exh.51 would reveal that the accused
asked the police party to stop the vehicle near 'Waghai Devasthan'
and alighted from the vehicle. The appellant herein led the panchas
and security guards to a room constructed with kaccha bricks. On the
eastern side of Waghai Devasthan and stated that he had slept in the
said room at night after the incident and thereafter, he took out and
produced one blood stained iron knife kept concealed in the hay in
the said room. The said panchanama is duly exhibited in the evidence
of Tawangarkhan (PW-5). Except a general statement that the
appellant had not made a confession, no questions with regard to said
35 conf2.15.odt
weapon being not concealed are put to Tawangarkhan (PW-5) in his
cross-examination. The I.O. P.I. Bachate (PW-10) has also stated in
his evidence that the appellant had shown the spot and thereafter, he
had handed over knife from the concealed spot having blood stains.
No cross-examination of P.I. Bachate (PW-10) has been made on that
aspect. The panchanama would also show that there is a specific
mention with regard to sealing of the said weapon.
37.
The Query Report at Exh.22 would reveal that the Medical
Officer has given the opinion that the injuries caused by the appellant
herein could be possible by the said weapon which was seized at the
instance of the present appellant.
38. Insofar as the finding of blood stains of blood group "A",
which is the blood group of deceased Harunisa is concerned, we are
in agreement with the learned Counsel for the appellant that since
the said specific question was not put to the accused in his
examination u/s.313 of the Code of Criminal Procedure, it cannot be
used against him.
39. However, the present case is not a case based on the
36 conf2.15.odt
circumstantial evidence wherein the prosecution would be required to
prove each and every incriminating circumstance beyond reasonable
doubt and would be further required to establish the chain of events
which leads to no other conclusion than guilt of the accused. As
already discussed hereinabove, we find the evidence of
Tawangarkhan (PW-5) to be trustworthy insofar as actual act of
assault is concerned and the circumstances which we have stated
hereinabove and which have been found to be duly proved, are
only to corroborate the testimony of Tawangarkhan (PW-5) which, in
our view, is otherwise believable, insofar as witnessing the incident is
concerned.
40. That leads us to the last issue. The appellant herein in his
examination u/s.313 of the Code of Criminal Procedure below
Exh.108 has stated thus :
" I, accused named - Sayyad Imdad Ali Wahed
Ali, aged - 51 yrs., resident of Bhanapeth Ward, give
statement as under -
I along with wife named - Shamshad,
daughter Isana, sons - Asil and Sahil and the mother-in-
law together was leading family life happily. Two-three
years prior to the incident, when the Talaq (divorce) had
37 conf2.15.odt
not taken place, my wife Shamshad had kept a young boy
named Rafiq Ur Rahman as a husband and driven me out
from the house of mother-in-law, following which I had to
face defamation in our society. On the day of incident, I
had gone to the house of mother-in-law for convincing my
wife. At that time, wife Shamshad said, " Sale (abusive
term), you have now become an aged one. You are not
having a vigour as before. Only a young boy can satiate
the need of my body. I am happy with Rafiur. You are no
more required now. " On being so uttered, I got provoked
and got very much furious. In a fit of anger, I delivered
blow of knife from their house itself, on the person of
Shamshad. At that time, my mother-in-law and the
daughter came forward to obstruct me. But, as I lost
control on mind, I assaulted them also with the same
knife. I did not deliver blow on their person deliberately.
This is my statement. It is read over and
explained to me in Hindi language. It is recorded correctly
as per my version."
Nodoubt that since the statement u/s.313 of the Code of
Criminal Procedure is not a statement made on oath, conviction on
the basis of such sole statement would not be tenable.
41. Their Lordships of the Apex Court in the case of Ashok
38 conf2.15.odt
Debbarama @ Achak Debbarama .vs. State of Tripura reported in
AIR 2014 SC (Supp) 1434 have considered the legal position with
regard to purpose of statement made u/s.313 of the Code of Criminal
Procedure. It is observed thus :
21. We are of the view that, under Section 313
statement, if the accused admits that, from the
evidence of various witnesses, four persons sustained
severe bullet injuries by the firing by the accused and
his associates, that admission of guilt in Section 313
statement cannot be brushed aside. This Court in State
of Maharashtra v. Sukhdev Singh and another (1992)
3 SCC 700 : (AIR 1992 SC 2100) held that since no
oath is administered to the accused, the statement
made by the accused under Section 313 CrPC will not
be evidence stricto sensu and the accused, of course,
shall not render himself liable to punishment merely on
the basis of answers given while he was being
examined under Section 313 CrPC. But, Sub-section
(4) says that the answers given by the accused in
response to his examination under Section 313 CrPC
can be taken into consideration in such an inquiry or
trial. This Court in Hate Singh Bhagat Singh (AIR
1953 SC 468) (supra) held that the answers given by
the accused under Section 313 examination can be
used for proving his guilt as much as the evidence
39 conf2.15.odt
given by the prosecution witness. In Narain Singh v.
State of Punjab (1963) 3 SCR 678, this Court held
that when the accused confesses to the commission of
the offence with which he is charged, the Court may
rely upon the confession and proceed to convict him.
22.This Court in Mohan Singh v. Prem Singh and
another (2002) 10 SCC 236 : (AIR 2002 SC 3582)
held that the statement made in defence by accused
under Section 313 CrPC can certainly be taken aid of
to lend credence to the evidence led by the prosecution,
but only a part of such statement under Section 313
CrPC cannot be made the sole basis of his conviction.
In this connection, reference may also be made to the
judgment of this Court in Devender Kumar Singla v.
Baldev Krishan Singla (2005) 9 SCC 15 : (AIR 2004
SC 3084) and Bishnu Prasad Sinha and another v.
State of Assam (2007) 11 SCC 467. The above-
mentioned decisions would indicate that the statement
of the accused under Section 313 CrPC for the
admission of his guilt or confession as such cannot be
made the sole basis for finding the accused guilty, the
reason being he is not making the statement on oath,
but all the same the confession or admission of guilt
can be taken as a piece of evidence since the same lends
credence to the evidence led by the prosecution.
40 conf2.15.odt
23. We may, however, indicate that the answers given
by the accused while examining him under Section
313, fully corroborate the evidence of PW10 and PW13
and hence the offences levelled against the Appellant
stand proved and the trial Court and the High Court
have rightly found him guilty for the offences under
Sections 326, 436 and 302 read with Section 34, IPC."
42. It could thus be seen that Their Lordships of the Apex
Court have held that though no conviction solely on the basis of
statement u/s.313 of the Code of Criminal Procedure can be made,
however, the statement made by the accused u/s.313 of the Code of
Criminal Procedure can certainly be taken aid of to lend credence to
the evidence led by the prosecution. As already discussed
hereinabove, from the ocular testimony of Tawangarkhan (PW-5)
corroborated by the F.I.R. lodged by Asil Ali (PW-1) - son of the
deceased Shamshad and the appellant herein, the memorandum of
appellant u/s.27 and consequent discovery and seizure of weapon
used in the crime from the place shown by the appellant herein and
the Query Report below Exh.22, which shows that the injuries
sustained by the three deceased persons are possible by the said
weapon, it can be said that the prosecution has established beyond
41 conf2.15.odt
reasonable doubt that it is the present appellant who is author of the
crime and as such, additional circumstance of the statement made by
the accused u/s.313 of the Code of Criminal Procedure can very well
be used to give credence to the prosecution case which is otherwise
independently established.
43. We have, therefore, no hesitation to hold that the order
passed by the learned trial Judge convicting the appellant herein for
the offence punishable under Section 302 of the Indian Penal Code
for causing death of deceased Shamshad, Isana and Harunisa
warrants no interference.
43. Having concluded that the appellant herein is guilty of the
offence punishable under Section 302 of the Indian Penal Code, we
proceed to hear the learned Counsel for the appellant on the question
as to whether the death sentence deserves to be confirmed or needs
to be substituted with other sentence.
45. We have extensively heard Mr.V.A.Thakare, learned A.P.P.
for the State and Ms. F.N.Haidari, learned Counsel for the appellant
herein on the quantum of sentence.
42 conf2.15.odt
46. Mr.V.A.Thakare, learned A.P.P., relying on various
Judgments of the Apex Court, submits that the crime committed by
the appellant herein has been committed in the most brutal manner.
The learned Counsel submits that the appellant herein had pre-
meditated to do away his wife, daughter and mother-in-law and has
killed them in a brutal manner. The learned A.P.P. submits that, from
the nature of injuries, it will be clear that the crime is gruesome and
shocking to the conscience of the Society wherein three innocent
helpless victims have been deprived of their lives for no fault of
theirs. The learned A.P.P. further submits that there are various
aggravating circumstances which are available in the present case like
the murder having been committed so as to take revenge against the
wife for not transferring the property in the appellant's name. Three
members of the family have been done with. The victims are
innocent, helpless women. It is submitted that it is nothing else but a
cold blooded murder without provocation. The learned A.P.P. relies
on the Judgment of the Apex Court in the cases of Shubnam .vs.
State of Uttar Pradesh, 2015 (6) SCC 632; Mofil Khan and
another .vs. State of Jharkhand, 2015 (1) SCC 67; Ravji @ Ram
Chandra vs. State of Rajasthan, 1996 (2) SCC 175; Umashankar
Panda .vs. State of M.P., 1996(8) SCC 110 and Purushottam
43 conf2.15.odt
Dashrath Bhorate .vs. State of Maharashtra, 2015 (6) SCC 652.
The learned A.P.P. also relies on the Judgment of this Court in the
case of State of Maharashtra .vs. Rakesh Manohar Kamble @
Neeraj Ramesh Wakekar reported in 2014 ALL MR (Cri) 2043, to
which one of us (B.R.Gavai, J) was a party.
47. As against this, Ms Haidari, learned Counsel appearing on
behalf of the appellant herein submits that the appellant is entitled to
mercy. He is 57 years of age. He is not a menace to the Society since
there are no criminal antecedents to his credit. She submits that the
crime is committed at the spur of moment, in a heat of passion, on
account of provocation from the wife. She further submits that the
prosecution has not placed on record evidence to show that the
appellant herein is a continuing threat to the Society. The learned
Counsel submits that it can be, at the most, said that the appellant
herein had an intention to commit murder of his wife; however, it
appears that, since the daughter and mother-in-law of the appellant
came to rescue his wife, accidentally they were also assaulted, due to
which they succumbed to the injuries. The learned Counsel,
therefore, submits that merely because three casualties have
happened in the incident, it cannot be said that the appellant herein
44 conf2.15.odt
had an intention to cause death of all the three ladies. The learned
Counsel submits that, from the entire material placed on record, it
appears that the appellant herein had lost his mental balance on
being provoked by his wife about his capacity and enraged with the
same, he has assaulted his wife and when the other two came to help
her, he has also assaulted them. The learned Counsel relies on the
Judgments of the Apex Court in the cases of Rajesh Kumar .vs.
State, through Government of NCT of Delhi reported in (2011) 13
SCC 706; Shankar Kisanrao Khade vs. State of Maharashtra,
(2013) 5 SCC 546; State of Uttar Pradesh .vs. Narendra and
Others, (2014) 10 SCC 261 and Amar Singh Yadav vs. State of
Uttar Pradesh, (2014) 13 SCC 443.
48. The law as to - in what circumstances death penalty would be
warranted or not, has been succinctly laid down by the Constitution
Bench of Their Lordships of the Apex Court in the case of Bachan
Singh .vs. State of Punjab reported in 1980 (2) SCC 684. In the last
35 years, there are various judicial pronouncements by the highest
Court of the Country further explaining the legal position. Recently,
in the case of Shabnam (cited supra), Their Lordships have again
reiterated the legal position. It will be appropriate to re-produce
45 conf2.15.odt
paragraph nos. 24 and 25 of the said Judgment. They are thus :
"24.We would not lumber the discussion by tracing
the entire death penalty jurisprudence as it has
evolved in India, but only limit the exercise to cull
out the determinants which would weigh large in
our mind to award appropriate sentence while
balancing the mitigating and aggravating
circumstances. We are mindful of the principles laid
down by this Court in Jagmohan Singh v. State of
U.P., (1973) 1 SCC 20 : 1973 SCC (Cri) 169; Bachan
Singh v. State of Punjab, (1980) 2 SCC 684 : 1980
SCC (Cri) 580 and Macchi Singh v. State of Punjab,
(1983) 3 SCC 470: 1983 SCC (Cri) 681, as followed
by this Court up to the present. The aforesaid
decisions indicate that the most significant aspect of
sentencing policy in Indian criminal jurisprudence
regarding award of death penalty is that life
sentence is a rule and death sentence is an exception
only to be awarded in "the rarest of rare cases".
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
the option to impose sentence of imprisonment for
life cannot be conscientiously exercised having
regard to the nature and circumstances of the crime
46 conf2.15.odt
and all the relevant circumstances. The
circumstances which should or should not be taken
into account, and the circumstances which should be
taken into account along with other circumstances,
as well as the circumstances which may, by
themselves, be sufficient, in the exercise of the
discretion regarding sentence cannot be exhaustively
enumerated. "
"25. The guidelines and principles for classification of
circumstances and determination of the culpability
indicia as laid down by this Court in the aforesaid
cases have been succinctly in Ramnaresh v. State of
Chattisgarh, (2012) 4 SCC 257 : (2012) 2 SCC (Cri)
382. The said are extracted as under : (SCC pp. 285-
86, paras 76-77) :
"Aggravating circumstances :
(1) The offences relating to the commission of
heinous crimes like murder, rape, armed dacoity,
kidnapping etc. by the accused with a prior record of
conviction for capital felony or offences committed by
the person having a substantial history of serious
assaults and criminal convictions.
(2) The offence was committed while the offender
was engaged in the commission of another serious
47 conf2.15.odt
offence.
(3) The offence was committed with the intention to
create a fear psychosis in the public at large and was
committed in a public place by a weapon or device
which clearly could be hazardous to the life of more
than one person.
(4) The offence of murder was committed for
ransom or like offences to receive money or monetary
benefits.
(5) Hired killings.
(6) The offence was committed outrageously for
want only while involving inhumane treatment and
torture to the victim.
(7) The offence was committed by a person while in
lawful custody.
(8) The murder or the offence was committed to
prevent a person lawfully carrying out his duty like
arrest or custody in a place of lawful confinement of
himself or another. For instance, murder is of a person
who had acted in lawful discharge of his duty under
Section 43 of the Code of Criminal Procedure.
(9) When the crime is enormous in proportion like
making an attempt of murder of the entire family or
members of a particular community.
(10) When the victim is innocent, helpless or a
person relies upon the trust of relationship and social
norms, like a child, helpless woman, a daughter or a
48 conf2.15.odt
niece staying with a father/uncle and is inflicted with
the crime by such a trusted person.
(11) When murder is committed for a motive which
evidences total depravity and meanness.
(12) When there is a cold-blooded murder without
provocation.
(13) The crime is committed so brutally that it pricks
or shocks not only the judicial conscience but even the
conscience of the society.
Mitigating circumstances :
(1) The manner and circumstances in and
under which the offence was committed, for example,
extreme mental or emotional disturbance or extreme
provocation in contradistinction to all these situations
in normal course.
(2) The age of the accused is a relevant
consideration but not a determinative factor by itself.
(3) The chances of the accused of not indulging
in commission of the crime again and the probability
of the accused being reformed and rehabilitated.
(4) The condition of the accused shows that he
was mentally defective and the defect impaired his
capacity to appreciate the circumstances of his
criminal conduct.
49 conf2.15.odt
(5) The circumstance which, in normal course
of life, would render such a behaviour possible and
could have the effect of giving rise to mental imbalance
in that given situation like persistent harassment or, in
fact, leading to such a peak of human behaviour that,
in the facts and circumstances of the case, the accused
believed that he was morally justified in committing
the offence.
(6) Where the court upon proper appreciation
of evidence is of the view that the crime was not
committed in a preordained manner and that the
death resulted in the course of commission of another
crime and that there was a possibility of it being
construed as consequences to the commission of the
primary crime.
(7) Where it is absolutely unsafe to rely upon
the testimony of a sole eyewitness though prosecution
has brought home the guilt of the accused.
77. While determining the questions relatable
to sentencing policy, the court has to follow certain
principles and those principles are the loadstar besides
the above considerations in imposition or otherwise of
the death sentence.
Principles :
(1) The court has to apply the test to determine, if it
50 conf2.15.odt
was the 'rarest of rare' case for imposition of a death
sentence.
(2) In the opinion of the court, imposition of any
other punishment i.e. life imprisonment would be
completely inadequate and would not meet the ends of
justice.
(3) Life imprisonment is the rule and death sentence
is an exception.
(4) The option to impose sentence of imprisonment
for life cannot be cautiously exercised having regard to
the nature and circumstances of the crime and all
relevant circumstances.
(5) The method (planned or otherwise) and the
manner (extent of brutality and inhumanity, etc.) in
which the crime was committed and the circumstances
leading to commission of such heinous crime. "
49. It could thus be seen that Their Lordships have held that
most significant aspect of sentencing policy in Indian Criminal
Jurisprudence regarding award of death penalty is that life sentence
is a rule and death sentence is an exception only to be awarded in
"the rarest of the rare case". It has further been held that death
sentence must be imposed only when life imprisonment appears to be
51 conf2.15.odt
an altogether inadequate punishment having regard to the relevant
circumstances of the crime.
50. It could further be seen that the Apex Court has culled out
various aggravating circumstances and mitigating circumstances. The
principles laid down by the Court requiring the Court to apply the test
to determine, if it was the 'rarest of the rare' case for imposition of
death sentence. The Court must come to the conclusion that
imposition of any other punishment i.e. life imprisonment would be
completely inadequate and would not meet the ends of justice. It has
further been held that the death sentence should be imposed when
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 relevant circumstances. It has been
further laid down that the Court should take into consideration the
method (planned or otherwise) and the manner (extent of brutality
and inhumanity, etc.) in which the crime was committed and the
circumstances leading to commission of such heinous crime.
51. In the light of these guiding principles, we will have to
consider as to what are the aggravating circumstances in the present
52 conf2.15.odt
case. We find that, in the present case, the aggravating circumstance
is that the appellant herein has committed murder of his own wife,
daughter and mother-in-law. Undisputedly, three innocent persons
have been deprived of their lives by the appellant. Nodoubt, that the
wife of the appellant herein has sustained inasmuch as 16 external
injuries whereas the daughter and the mother-in-law have sustained
six and three injuries respectively. We have basically convicted the
appellant herein on the basis of evidence of Tawangarkhan (PW-5)
seeking corroboration from the other circumstances including his
statement u/s. 313 of the Code of Criminal Procedure. In the present
case, though it has been the case of prosecution that the motive
behind commission of crime in the present case is denial by deceased
Shamshad to transfer the house in the name of appellant herein , the
prosecution has utterly failed to prove the said motive. On the
contrary, it has come in the evidence of prosecution witnesses itself
that the house was in the name of Harunisa i.e. mother-in-law of the
appellant herein and not in the name of Shamshad. In that view of
the matter, it cannot be said that the offence was committed since
deceased Shamshad refused to transfer the house property in the
name of the appellant herein. Insofar as the evidence of
Tawangarkhan (PW-5) is concerned, his evidence only shows that he
53 conf2.15.odt
had seen the appellant herein assaulting deceased Isana and deceased
Shamshad. However, he is also not aware about the genesis of
incident. Insofar as evidence of Asil Ali (PW-1) to the effect that his
grandmother told him that the appellant herein assaulted his mother,
sister and grandmother is concerned and the appellant was saying
that, as the house property was not transferred in his name, he has
assaulted them is concerned; as already discussed hereinabove, we
have disbelieved the written dying declaration so also the oral dying
declaration. In the light of this, we find that the statement of
appellant herein u/s.313 of Cr.P.C., which we have relied on while
convicting the appellant, will have to be taken into consideration. The
statement has been reproduced in toto by us hereinabove. It shows
that, 2-3 years prior to the incident, deceased Shamshad had kept a
young body namely Rafiq Ur Rahman as a husband and had driven
the appellant herein out from the house of mother-in-law. He has
stated that, on account of this, he has to face defamation in the
Society. He has further stated that, on the day of incident, he had
gone to the house of his mother-in-law for convincing his wife. At
that time, his wife Shamshad abused him saying that he has now
become an aged one and that he was not having a vigour as before.
The appellant further states that his wife told him that only a young
54 conf2.15.odt
boy can satiate the need of her body and that she was happy with
Rafiqur and that he was no more required now. The appellant further
states that, on being so uttered, he got provoked and got very much
furious. In a fit of anger, he delivered a blow of knife which was
lying in the house itself, on the person of Shamshad. He further states
that, at that time, his mother-in-law and daughter came forward to
obstruct him. But, as he had lost control on his mind, he assaulted
them also with the same knife.
52. It is further to be noted that Asil Ali (PW-1), who is son of
the appellant herein and deceased Shamshad, on the question being
put to him that, as to whether on account of second marriage by his
mother without any divorce with the appellant, mental condition of
appellant was disturbed, the witness has replied that the appellant
was half mad or mentally disturbed even prior to second marriage.
He has further admitted that it was true to say that the appellant used
to visit their house and used to behave abnormally i.e. making
abuses, throwing articles. He has further admitted that the family had
not taken any care or caution about abnormal behaviour of the
appellant prior to the incident.
55 conf2.15.odt
53. As held in the catena of cases, balance between
aggravating circumstances and mitigating circumstances has to be
drawn giving full weightage to the mitigating circumstances. It has
further been held that just balance has to be drawn between the
aggravating circumstances and mitigating circumstances and the
death sentence is to be awarded when the option to impose sentence
of imprisonment for life, cannot be conscientiously exercised. It has
further been held that, while taking decision, question has to be
asked and answered as to whether there is something uncommon
about the murder which renders sentence of life inadequate and calls
for death sentence. Another question that is required to be answered
is as to whether the circumstances of the crime are such that there is
no alternative to imposition of death sentence, even giving weightage
to mitigating circumstances which speaks in favour of the offender.
54. On the material placed on record and from the evidence of
Asil Ali (PW-1) itself, it could be seen that the appellant herein was
mentally imbalanced person. It is admitted position that either the
appellant had left the house or was driven away prior to 2-3 years of
the incident. It is also admitted position that deceased Shamshad had
married a boy much younger than her in age, without seeking divorce
56 conf2.15.odt
from the appellant herein. The possibility that the appellant would
have come to take revenge against deceased Shamshad for her
betrayal and hence, assaulted her and while doing so, since the
deceased daughter and mother-in-law came to her rescue, he
assaulting them also, cannot be ruled out. As already discussed
hereinabove, prosecution has failed to bring on record the real
genesis of the incident. However, there is nothing on record to show
that the appellant herein had pre-meditated to do away all three
members of the family. We, therefore, find that the appellant would
be entitled to benefit of the first mitigating circumstance.
55. Insofar as the second mitigating circumstance is
concerned, the age of the appellant herein may not be a determining
factor but nonetheless it would be a relevant consideration. The
appellant herein is aged about 57 years. One of the considerations in
the case of Shankar Kisanrao Khade (supra) for converting the
death sentence to life imprisonment was age of the accused therein
namely Shankar Kisanrao Khade. Insofar as the third mitigating
circumstance is concerned, prosecution has placed nothing on record
to show that the appellant herein may indulge in such crimes again
and there is no possibility at all of his being reformed and
57 conf2.15.odt
rehabilitated. Insofar as the fourth mitigating circumstance is
concerned, as discussed hereinabove, the possibility of the appellant
herein being mentally defective and at that moment, the said defect
impairing his capacity of understanding, thereby leading to his
criminal conduct cannot be ruled out. Insofar as the fifth mitigating
circumstance is concerned, on account of the appellant's wife
deserting him and she marrying a boy much younger than her in age
and the resultant humiliation in the society and neglect by the
members of his family, the possibility of the appellant herein taking
the extreme step to do away his wife, as an outburst of persistent
humiliation and mental torture and in the result, also assaulting his
daughter and mother-in-law, who had come to save his wife, also
cannot be ruled out. As already discussed hereinabove, the possibility
of the appellant herein having an intention only to harm his wife and
by accident, since the two other unfortunate victims had come to the
rescue of their mother or daughter, they being assaulted and hence,
succumbing to the injuries also cannot be ruled out.
In that view of the matter, we find that if balance sheet of
aggravating circumstances and mitigating circumstances is drawn, the
same would tilt in favour of the appellant herein.
58 conf2.15.odt
56. Now we will deal with the cases which are cited by the
learned A.P.P. Insofar as the case of Shabnam .vs. State of Uttar
Pradesh (supra) is concerned, accused Shabnam was daughter of
Master Shaukat Ali (deceased's father). She was having an affair with
other accused Saleem. The entire family was opposed to the affair
between the accused persons. Not only that, but accused Shabnam
had also conceived. Both the appellants, therefore, hatched a
conspiracy to do away with all the family members. Accused
Shabnam first administered sedative mixed in tea to the deceased
persons and thereafter, the appellants therein assaulted six members
of the family with axe and also even did not spare the innocent child
of ten months. In this background, Their Lordships observed thus :
"33. Of all the crimes that shock the souls of men, none
has ever been held in greater abhorrence than parricide,
which is by all odds the most complete and terrible
inversion, not alone of human nature but of brute instinct.
Such a deed would be sufficiently appalling where the
perpetrator and the victims are uneducated and backward,
but it gains a ghastly illumination from the descent, moral
upbringing, and elegant respectful living of the educated
family where the father and daughter are both teachers.
Here is a case where the daughter, appellant-accused
59 conf2.15.odt
Shabnam, who has been brought up in an educated and
independent environment by her family and was respectfully
employed as a Shikshamitra (teacher) at the school,
influenced by the love and lust of her paramour has
committed this brutal parricide exterminating seven lives
including that of an innocent child. Not only did she forget
her love for and duty towards her family, but also
perpetrated the multiple homicide in her own house so as to
fulfill her desire to be with the co-accused Salim and grab
the property leaving no heir but herself. The appellant-co-
accused Salim hatched the intricate plan with her, slayed
the six deceased persons with an axe, escaped the crime
scene, hid the murder weapon and supported the false story
of occurrence. Both the appellants-accused wrench the heart
of our society where family is an institution of love and
trust, which they have disrespected and corrupted for the
sake of their love affair.
34. The appellants-accused have put an end to seven
innocent lives while they lay asleep defenceless and
unsuspecting, in safety of their own house, absolutely
unaware of the gory scheme of their daughter and her
paramour. The appellant-accused driven by the opposition
to their alliance from the deceased family and alive to the
conception of their illegitimate child, had hatched the
depraved plan to first administer them sedatives mixed in
tea prepared by appellant-accused Shabnam, who the family
60 conf2.15.odt
would not raise suspicion at, and thereafter, bleeding them
to death by slitting the vital blood vessels in their throats.
The appellants-accused couple did not even spare the ten
month old infant, who could not have protested to their
liaison, and ruthlessly throttled him to death so as to leave
no survivors for claiming share in the family's property in
the future. As soon as the family members were rendered
dead, while appellant-accused Saleem fled from the spot
disposing of the murder weapon and other evidence of
crime, the appellant-accused Shabnam feigned
unconsciousness and laid by the side of deceased father's
mutilated body, to callously insinuate that the crime
had been committed by an outsider while she was asleep on
the roof-top. The appellant-accused lovers have consistently
denied their guilt throughout the trial and, on the
prosecution case being proved, stooped down
to implicate each other in the commission of offence so as to
exonerate themselves from the consequences of their
obnoxious act. "
57. It could thus be seen that, in the said case, the appellant
therein had prepared a complete plan to do away with the six
deceased members of the family. Initially, they were given sedative
and when they were not in a position to do anything, they were
assaulted while in sleep. This was done since the family members
were opposed to the affair between the appellants therein and they
61 conf2.15.odt
did not want anybody in the family to claim share in the property. In
the present case, we find that there is no evidence of pre-meditation.
There was no motive. It is also not as if that the appellant herein had
taken benefit of the unsuspected victims while he was living with
them.
58. Insofar as the Judgment in the case of Mofil Khan and
another is concerned, all the accused therein were brothers and
nephews of deceased Haneef Khan. The accused armed with sharp
edged weapons like sword, tangi, bhujali and spade had first
assaulted Haneef Khan in the mosque. The deceased succumbed to
the injuries inflicted by the accused persons leaving the deceased at
the spot. The appellants therein proceeded towards the house of the
deceased whereupon, hearing cries of their father, the deceased's son
Gufran Khan @ Pala and Imran Khan had come out on the street.
The accused assaulted the two unarmed brothers with the aforesaid
weapons, due to which the brothers collapsed and died in front of
their house. Thereafter, the accused and others entered the house of
the deceased and committed murder of Kasuman Bibi, wife of the
deceased and his four sons namely Anish Khan, aged 5 years; Danish
Khan, aged about 8 years; Yusuf Khan (physically disabled), aged
62 conf2.15.odt
about 18 years and Maherban Khan, aged about 12 years. After
committing murder of the six persons, the accused threatened other
members of the household including their mother, Jainub Khatoon
(PW-2) of meeting the same fate, if they inform the police about the
said incident and thereafter, left the house taking away certain
documents relating to the lands, passbook, jewellery etc. It could thus
be seen that, in the said case, all the accused persons with pre-
meditated mind to do away the entire members of the Haneef Khan's
family so to grab the property had committed crime in extremely
brutal manner. In the said case, there was a clear motive i.e. intention
to grab the property. Not only that, but there was no provocation in
the said case and the accused persons therein had assaulted
unsuspecting Haneef Khan and other members of his family.
59. The third case on which the learned A.P.P. relies is the
case of Purshottam Dashrath Borate and another (cited supra). In
the said case, the victim was serving as an Associate in the BOP
Branch of Wipro Company in Pune. The Company had arranged for
and hired a private cab service to transport its employees from their
residence to the workplace and back after completing their work. In
addition, to ensure the safety and security of its female employees,
63 conf2.15.odt
the Company had imposed a mandatory condition upon the owner of
the cab that a security guard be present in the said vehicle, if a female
employee was being transported. On the fateful day, the cab was
deputed to pickup the deceased from her residence at 10.30 p.m.
After picking her up, the cab was also supposed to collect three other
employees. As per the usual practice, at about 10.15 p.m., the
deceased received a missed call from the driver of the cab informing
her of the pickup. The deceased called back accused no.1 to pick her
up in 10 minutes to take her to the workplace, upon which PW-12
and his son went down from their flat to drop her to the cab. At the
time of pickup, accused no.2 was sitting in the rear seat behind the
driver. The next employee to be collected by the cab was one Sagar
Bidkar. During the journey, between 10.30 p.m. and 11.00 p.m., the
deceased received calls on her mobile phone by one Jeevan Baral, a
friend of the deceased residing in Bangalore, PW-14 who heard the
victim questioning as to where he was taking the cab, why he had
stopped in a jungle and what he was doing. Thereafter, the phone call
between the deceased and PW-14 was abruptly disconnected and
attempts to call the deceased were rendered futile as her mobile
phone was found to be switched off. In the said case, prosecution has
proved that accused nos. 1 and 2 being aware of the fact that the
64 conf2.15.odt
deceased would be travelling to her workplace that night and that she
would be the first to be collected, under the guise of taking the
deceased to the workplace, they hatched a conspiracy to abduct her
and take her to a secluded place. Prosecution further proved that the
accused committed the heinous crime of gang rape and thereafter,
murdered the victim therein by strangulating her with her own
odhani, slashing her wrist with a blade and smashing her head with a
stone. It was further proved that the accused stripped the deceased of
her possessions and money and then left her body in the field of one
Kisan Bodke. Thereafter, the accused showing ignorance, picked up
PW-11 from his residence at around 12.45 a.m. and informed him
that the deceased had not come for work that day and the cause of
delay was on account of a punctured tyre. It could thus be seen that it
was a case wherein both the accused who were knowing that they
would be picking up the accused from her residence for taking her to
the workplace, hatched a conspiracy to abduct her to commit rape on
her and thereafter, do her away. They executed the plan as planned
by committing gang rape on the victim and thereafter, murdering her.
They did not stop at that, but contending ignorance informed PW-11
that the deceased was not picked up by them. In the said case, it was
not an act of provocation or one committed on the spur of moment.
65 conf2.15.odt
But it was the case of meticulously executed plan and cold blooded
murder without provocation and pre-planned crime. Their Lordships
of the Apex Court in para no.40 clearly observed that the said case
was not a case where the offence was committed by the accused
persons under the influence of extreme mental or emotional disorder.
60. Insofar as the Judgment in the case of Ravi @ Ram
Chandra (cited supra) is concerned, in the said case the appellant
was in his house along with his wife, mother and three minor
children. In the said case, the Court came to the specific conclusion
that the appellant therein in a cool and calculated manner wanted to
kill the wife and three minor children while they were asleep and
without giving an occasion to give any resistance whatsoever. It was
also proved that the appellant therein was fully determined to
commit the crime of murder and was conscious of the nature of crime
being committed by him. It was also proved that when his mother
tried to prevent him, he did not spare his mother and injured her with
an axe in an attempt to kill her also. Not only that, but he also
attempted to kill his neighbour's wife namely Smt. Galal (PW-4), who
was also asleep. It was also proved that he wanted to flee away and
when his neighbour came in his way and inquired as to what has
66 conf2.15.odt
happened, he also killed him in extremely brutal manner. It could
thus be seen that, in the said case, the Apex Court found that the
appellant therein had committed heinous crime in extremely brutal
manner and in a conscious state of mind and in a calculated manner.
Their Lordships have specifically come to the conclusion that there
was no evidence to show that the accused therein was in a confused
state of mind or was having psychic disorder.
61.
In the case of Umashankar Panda (cited supra), the
accused committed murder of his wife and two daughters who died
on the spot. He also caused injuries to his another daughter Komal
and two sons namely Balakrishna and Sonu with intent to commit
murder. However, they survived even after sustaining grievous
injuries. The accused therein thereafter fled from the spot. It was
again a case wherein all the family members were asleep and when
they were asleep, the accused started to kill his wife with the help of
a sword and on hearing the shoutings, the children woke up. The
wife questioned the accused why he was trying to kill her and the
accused without giving any answer, inflicted more injuries on her
head, hand and foot. The eldest daughter tried to save her mother.
The accused started inflicting wounds on his first daughter with the
67 conf2.15.odt
same sword. He also inflicted injuries with the same sword to another
daughter and finding that the sword he had used had been bent, he
left that sword and took out another big sword, kept in a box in the
room, and with the help of the second sword, he inflicted injuries to
the other children. Not only that, after doing that, he made an extra-
judicial confession to a witness stating that " I had slaughtered all of
them, how the three left alive ? " In the said case, the Apex Court
specifically came to the conclusion that there was no provocation and
therefore, there was nothing to suggest that there was any quarrel
between the accused and his wife or amongst any one of the family
members. Their Lordships further found that the way in which the
crime was executed clearly shows that it was a pre-meditated one and
not on account of sudden provocation or any mental derangement.
62. It could thus be seen that, in all the afore-said three cases,
the accused with pre-meditation and without there being any
provocation, had committed brutal crime, in which the unsuspecting
victims were murdered in a gruesome manner.
63. Insofar as the cases of Shabnam, Ravji @ Ram Chandra
and Umashankar Panda are concerned, the unsuspecting deceased
68 conf2.15.odt
therein, when they were asleep and not in a position to resist, were
brutally assaulted leading to their death. In the case of Shabnam,
accused Shabnam who had illicit relation with accused no.2, first
administered sedative to the members of the family and thereafter,
they assaulted the entire members of the family. Not only that, but
deceased Shabnam also tried to create a scene that she had become
unconscious due to the heinous act.
64.
Insofar as the present case is concerned, it could be seen
that the prosecution has failed to prove motive. We have further
found that the pre-meditation at the most could be against wife
Shabnam. We have also found that the possibility of provocation
being given by deceased Shabnam also cannot be ruled out. It is also
not the case, where the appellant was living with the deceased
persons and had taken disadvantage of living in the same house and
caused death of unsuspecting victims.
65. Now we will deal with the cases cited on behalf of the
Appellant.
Insofar as the case of Rajesh Kumar (cited supra) is
concerned, the accused therein, in order to take revenge against
69 conf2.15.odt
Mukesh (PW-2), who is his sister's brother, who was not giving
money, committed murder of two sons of Mukesh in a brutal manner.
The plea of insanity was rejected by the trial Court as well as the
High Court and death sentence was conferred upon him. While
commuting the death sentence into the sentence for imprisonment for
life, Their Lordships observed thus :
"73. In the instant case, the State has failed to show
that the appellant is a continuing threat to society or
that he is beyond reform and rehabilitation. On the
other hand, in paragraph 77 of the impugned judgment
the High Court observed as follows :
"We have no evidence that the appellant is incapable
of being rehabilitated in society. We also have no
evidence that he is capable of being rehabilitated in
society. This circumstance remains a neutral
circumstance."
74.It is clear from the aforesaid finding of the High Court
that there is no evidence to show that the accused is
incapable of being reformed or rehabilitated in society and
the High Court has considered the same as a neutral
circumstance. In our view the High Court was clearly in
error. The very fact that the accused can be rehabilitated
in society and is capable of being reformed, since the State
has not given any evidence to the contrary, is certainly a
70 conf2.15.odt
mitigating circumstance and which the High Court has
failed to take into consideration. The High Court has also
failed to take into consideration that the appellant is not a
continuing threat to society in the absence of any evidence
to the contrary. Therefore, in paragraph 78 of the
impugned judgment, the High Court, with respect, has
taken a very narrow and a myopic view of the mitigating
circumstances about the appellant. The High Court has
only considered that the appellant is a first time offender
and he has a family to look after. We are, therefore,
constrained to observe that the High Court's view of
mitigating circumstances has been very truncated and
narrow in so far as the appellant is concerned.
82. Unfortunately, the High Court contrary to the ratio in
the aforesaid cases, fell, in this case, into an error by
approving the death sentence as it was swayed by the cruel
manner in which the two children were done to death by
the appellant. The mitigating circumstances in favour of
the appellant, were not properly considered.
66. In the case of State of U.P. vs. Narendra, (2014) 10 SCC
261, seven accused armed with deadly weapons had come to the
house of the first informant Pushplata and killed her husband, two
sons and her brother. The deceased persons were assaulted since
71 conf2.15.odt
accused Rajpal Singh had a dispute over ownership of land with
deceased's husband Dr.Rajveer Singh. The learned trial Court had
convicted the accused therein for the offence punishable under
Section 302 of the Indian Penal Code and sentenced them to death.
The High Court converted the death sentence into imprisonment for
life. Their Lordships of the Apex Court upheld the finding of the High
Court that longevity of incarnatiion may make the accused see
reason and passage of time may make them ponder over the crime
they have committed. It was further observed by the Apex Court that
this might arouse in them a feeling of remorse and repentence.
67. In the case of Amar Singh Yadav (cited supra), the
appellant before the Apex Court was working as a Police Constable.
He had married one Urmila Devi. However, he had illicit relations
with two other women and had neglected the family. Urmila Devi,
therefore, got effected deduction of half salary of the accused from
the department directly to pull on the expenses of the family. On
account of this, the accused hatched a conspiracy to do away with the
family. He along with his companion took his wife and four children
in a Maruti Van on the pretext of making some purchases regarding
marriage of his daughter. At the time of return, the accused got
72 conf2.15.odt
Maruti Van stopped 25-30 metres ahead of Udharanpur bridge on
Jahanganj road and he along with the driver came out of the Van.
They sprinkled the petrol all around the Van after locking the doors
thereof and set the Maruti Van ablaze with an intention of burning all
the occupants of the Maruti Van to death. They tried to push the
vehicle down in the pit so that the occupants might not escape but
meanwhile, Inspector Police Station, Chhibramau along with his
companion Police Constables arrived there and he without caring for
his life broke open the doors of the burning vehicle and took out the
accused's wife and all four children from the burning car. Out of
them, the wife and two daughters died. Fortunately, one son and one
daughter survived. The learned trial Court convicted the accused and
sentenced to death. The High Court upheld the conviction and death
sentence. However, Their Lordships of the Apex Court converted the
death sentence to life imprisonment. While doing so, Their Lordships
observed thus :
"27.Though we are convinced that the prosecution has
proved the guilt of the accused beyond all reasonable doubt,
the accused committed the crime in a most cruel and
inhuman manner. The helpless wife and young children,
who fell victims to the avaricious conduct and lust of the
73 conf2.15.odt
appellant still the case does not fall within the four corners
of the principle of "the rarest of the rare case", though no
leniency can be shown to the appellant.
28. There is no reason to believe that the accused cannot be
reformed or rehabilitated and that he is likely to continue
criminal acts of violence as would constitute a continuing
threat to the society. "
68. In the light of aforesaid Judgments (cited supra) on behalf
of the appellant as well as prosecution, we will be required to
consider the quantum of sentence in the present case. In the case of
Swamy Shraddananda @ Murli Manohar Mishra .vs. State of
Karnataka reported in (2008) 13 SCC 767, Their Lordships of the
Apex Court have found a middle path where the case may just fall
short of the rarest of rare category, but, having regard to the nature
of crime, the Court may strongly feel that a sentence of life
imprisonment subject to remission, which normally works out to a
term of 14 years, would be grossly disproportionate and inadequate,
Their Lordships, therefore, observed thus :
" 92.The matter may be looked at from a slightly different
angle. The issue of sentencing has two aspects. A sentence
74 conf2.15.odt
may be excessive and unduly harsh or it may be highly
disproportionately inadequate. When an appellant comes to
this court carrying a death sentence awarded by the trial
court and confirmed by the High Court, this Court may find,
as in the present appeal, that the case just falls short of the
rarest of the rare category and may feel somewhat reluctant
in endorsing the death sentence. But at the same time,
having regard to the nature of the crime, the Court may
strongly feel that a sentence of life imprisonment that subject
to remission normally works out to a term of 14 years would
be grossly disproportionate and inadequate. What then the
Court should do? If the Court's option is limited only to two
punishments, one a sentence of imprisonment, for all intents
and purposes, of not more than 14 years and the other
death, the court may feel tempted and find itself nudged into
endorsing the death penalty. Such a course would indeed be
disastrous. A far more just, reasonable and proper course
would be to expand the options and to take over what, as a
matter of fact, lawfully belongs to the court, i.e., the vast
hiatus between 14 years' imprisonment and death. It needs
to be emphasized that the Court would take recourse to the
expanded option primarily because in the facts of the case,
the sentence of 14 years imprisonment would amount to no
punishment at all.
93.Further, the formalisation of a special category of
sentence, though for an extremely few number of cases,
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shall have the great advantage of having the death penalty
on the statute book but to actually use it as little as
possible, really in the rarest of the rare cases. This would
only be a reassertion of the Constitution Bench decision in
Bachan Singh (supra) besides being in accord with the
modern trends in penology.
94.In light of the discussions made above we are clearly of
the view that there is a good and strong basis for the Court
to substitute a death sentence by life imprisonment or by a
term in excess of fourteen years and further to direct that
the convict must not be released from the prison for the
rest of his life or for the actual term as specified in the
order, as the case may be."
69. Again, in the case of Sandeep .vs. State of Uttar Pradesh,
(2012) 6 SCC 107, Their Lordships observed thus :
"73.While we are convinced that the case of the prosecution
based on the evidence displayed, confirmed the commission
of offence by the appellants, without any iota of doubt, we
are of the considered opinion, that still the case does not
fall within the four corners of the principle of the 'rarest of
the rare case'. However, considering the plight of the
hapless young lady, who fell a victim to the avaricious
conduct and lust of the appellant Sandeep, the manner in
which the life of the deceased was snatched away by
causing multiple injuries all over the body with all kinds of
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weapons, no leniency can be shown to the said appellant.
74.In the decision reported in Swamy Sharaddananda,
even while setting aside the sentence of death penalty and
awarding the life imprisonment, it was explained that in
order to serve ends of justice, the appellant therein should
not be released from the prison till the end of his life.
Likewise, in Ramraj v. State of Chhattisgarh [AIR 2010 SC
420] this Court, while setting aside the death sentence,
directed that the appellant therein should serve a minimum
period of 20 years including the remissions and would not
be released on completion of 14 years of imprisonment.
75.Taking note of the above decisions and also taking into
account the facts and circumstances of the case on hand,
while holding that the imposition of death sentence to the
accused Sandeep was not warranted and while awarding
life imprisonment we hold that accused Sandeep must serve
a minimum of 30 years in jail without remissions before
consideration of his case for premature release."
70. In the case of Shankar Kisan Khade (surpa), the victim
was a minor girl about 11 years and was also intellectually
challenged. The accused used her as a tool to satisfy his lust and she
was thereafter done away. He was convicted for an offence
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punishable under Section 302 of the Indian Penal Code and was
sentenced to death. Their Lordships of the Apex Court observed thus :
59.Remember, the victim was a minor girl aged 11 years,
intellectually challenged and elders like the accused have an
obligation and duty to take care of such children, but the
accused has used her as a tool to satisfy his lust. Society
abhors such crimes which shock the conscience of the society
and always attract intense and extreme indignation of the
community. R-R test is fully satisfied against the accused, so
also the crime test and the criminal test. Even though all
the above mentioned tests have been satisfied in this case, I
am of the view that the extReme sentence of death penalty
is not warranted since one of the factors which influenced
the High Court to award death sentence was the previous
track record of the accused. "
Their Lordships further observed in paragraph 62 thus :
"62. Therefore, the mere pendency of few criminal cases as
such is not an aggravating circumstance to be taken note of
while awarding death sentence unless the accused is found
guilty and convicted in those cases. The High Court was,
therefore, in error in holding that those are relevant factors
to be considered in awarding appropriate sentence. "
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71. It could thus be seen that Their Lordships have taken a
view that merely pendency of criminal cases cannot be aggravating
circumstances to be taken note of while awarding death sentence.
72. We have already enumerated the aggravating as well as
mitigating circumstances hereinabove. We have held that, at the
most, pre-meditation could be there for committing murder of
deceased Shamshad. We have also held that the possibility of
deceased Isana and Harunisa succumbing to the injuries while they
were making an attempt to save Shamshad cannot be ruled out. We
have further held that the possibility of provocation also cannot be
ruled out. We have held that, from the evidence of son of the
appellant itself, it could be seen that the appellant herein was not a
person of stable mental status. We have further held that the
possibility of volcano erupting on account of continuous neglect by
the family and humiliation faced in the society, on account of
desertion by wife and she living with a man of much younger age,
thereby resulting in the incident cannot be ruled out. In any case, it is
not as if the appellant herein was residing with the members of the
family and had taken advantage of assaulting them when they were
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asleep. Prosecution has also failed to prove motive in the present
case.
73. It could further be seen that the prosecution has also not
placed any material on record to show that the appellant herein was a
continuing threat to the Society and that he was beyond reform and
rehabilitation, which is required to be proved by the prosecution as
held by the Apex Court in the case of Rajesh Kumar (supra).
74. We are, therefore, of the view that, in the present case,
though the appellant is guilty of causing death of members of his
family in a brutal manner, the case may just fall short of 'the rarest of
the rare' category. However, at the same time, having regard to the
nature of crime, we are of the considered view that the sentence of
life imprisonment subject to remission, which normally works out to
the term of 14 years, would be grossly disproportionate and
inadequate. We find that the present case is a fit case wherein the
middle path as laid down by the Hon'ble Supreme Court in the cases
of Swami Shraddananda, Sandeep, Shankar Kisanrao Khade and
Amar Singh Yadav (supra) needs to be followed.
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75. We find that, taking into consideration the circumstances
of the case, it will be in the interest of justice to commute the death
sentence into sentence for life imprisonment with further direction
that the appellant must serve in jail for a minimum period of 30 years
without remission before his case can be considered for premature
release.
The appeal is, therefore, partly allowed.
The death sentence awarded by the learned trial Court is
commuted to the sentence of life imprisonment. However, we direct
that the appellant herein must serve in the jail for a minimum period
of 30 years without remission, before consideration of his case for
premature release.
In view of the order passed in the present Criminal Appeal,
the Reference shall also stand disposed of. The Criminal Appeal and
the Reference are accordingly disposed of.
At this stage, we place on record our deep appreciation for
the valuable assistance rendered by Ms F.N.Haidari, learned Counsel
(appointed) for the appellant and Mr.V.A.Thakare, learned A.P.P.
appearing on behalf of the State. Thorough preparation by both of
them on facts as well as law deserves recognition.
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Fees of Ms F.N.Haidari, learned Counsel appointed from
the Legal Aid Panel to appear on behalf of the appellant herein are
quantified at Rs.15,000/-.
JUDGE JUDGE
//jaiswal//
