Bombay High Court
Pralhad S/O. Laxman Tode vs The State Of Maharashtra on 3 May, 2024
Author: R.G.Avachat
Bench: R.G.Avachat
2024:BHC-AUG:10061-DB
Cri. Appeal Nos.211.19 and 602.2020.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.211 OF 2019
Pralhad s/o. Laxman Tode,
Age : 48 years, Occ. Agri.,
r/o. Antargaon, Tq. Naigaon,
Dist.Nanded ..Appellant
Vs.
The State of Maharashtra ..Respondent
----
Mr.P.S.Koshti, Advocate for appellant
Mrs.U.S.Bhosle, APP for respondent
----
AND
CRIMINAL APPEAL NO.603 OF 2020
The State of Maharashtra ..Appellant
Vs.
Pralhad s/o. Laxman Tode ..Respondent
----
Mrs.U.S.Bhosle, APP for appellant
Mr.P.S.Koshti, Advocate for respondent
----
CORAM : R.G.AVACHAT AND
NEERAJ P. DHOTE, JJ.
RESERVED ON : APRIL 08, 2024
PRONOUNCED ON : MAY 03, 2024
JUDGMENT (PER R.G.AVACHAT, J.):
-
These appeals are being decided by this common judgment
since they are interconnected. Criminal Appeal No.211 of 2019 is filed
by a convict against the judgment of conviction and consequential
order of sentence dated 05.05.2017, passed by the court of Addl.
Sessions Judge, Biloli, in Sessions Case No.44 of 2015, convicting him
for the offence punishable under Section 302 of Indian Penal Code
and therefore, sentencing him to suffer imprisonment for life. The
appellant was also prosecuted for the offences punishable under
Sections 307 and 309 of Indian Penal Code. He was, however,
acquitted thereof. Neither the State nor the victim has preferred any
appeal against acquittal. Acquittal of the offence under Section 309
of Indian Penal Code (attempt to commit suicide) has been passed
on the ground of the said section to have been declared
unconstitutional.
Another appeal (603 of 2020) is preferred by the State
for enhancement of sentence from life imprisonment to death.
2. The facts, giving rise to the present appeals, are as
follows:-
The First Information Report (Exh.12) was lodged by PW 2
- Narayan on 10.07.2015 by 09.20 in the morning. It is averred in
the FIR that PW 2 - Narayan along with his uncle Ashok (deceased)
and his servant (PW 7 - Sakharam Pawar) had slept in the field. The
appellant came to the place whereat they were sleeping. He was
armed with axe. He assaulted Ashok on his neck with axe. When
PW 2 - Narayan raised some voice, the appellant turned to him and
attempted to assault him with axe. PW 2 - Narayan avoided the
same. The blow, however, fell on his stomach. The appellant that
time told PW 2 - Narayan that he had killed his (appellant's) wife and
son at his residence and then came to the field to kill Ashok. It is
further averred in the FIR that the appellant consumed some
poisonous substance as an attempt to commit suicide. Based on the
FIR (Exh.12), crime vide C.R. No.40 of 2015, came to be registered
for the offences punishable under Sections 302, 307 and 309 of
Indian Penal Code.
3. PW 14 - Santosh Patil, A.P.I., was entrusted with the
investigation. Somebody had already informed the police about the
assault on Ashok. A station-diary entry to that effect was made by
PW 13 - Maroti Chavan, P.S.I. Both PW 13 and PW 14 paid visit to the
village Antargaon and particularly, both the places, i.e. house of the
appellant and agricultural field of Ashok (deceased). The house of
the appellant was locked from outside. It was broken open in the
presence of panchas. After having broken open the house, the wife
and son of the appellant were found dead lying in a pool of blood.
The scene of offence panchnama (Exh.10) was drawn. Then,
panchnama relating to the another crime scene in the field of
deceased Ashok (Exh.23) was drawn. The appellant was admitted to
hospital. The appellant was arrested after he was recovered.
Clothes on his person were seized. A knife and other articles were
already seized from the house of the appellant, while axe was seized
from the field of Ashok (deceased). Inquest was conducted on the
mortal remains of three deceased Gaubai, Hanmant and Ashok under
panchnamas (Exhs.41 and 42). Thereafter, their dead bodies were
subjected to postmortem examination. Statements of the persons
acquainted with the facts and circumstances of the case were
recorded. Upon completion of the investigation, charge sheet was
filed against the appellant before learned Judicial Magistrate, First
Class, Naigaon Bazar, Dist. Nanded. Learned Magistrate committed
the case to the court of Addl. Sessions Judge, Biloli (trial court). The
trial court framed Charge (Exh.2). The appellant pleaded not guilty.
His defence was of false implication.
4. The prosecution to establish the charge, examined
fourteen witnesses and adduced in evidence certain documents. The
trial court on appreciation of the evidence before him in the case,
convicted the appellant as stated above.
5. Learned counsel appointed to represent the appellant
would submit that the case in relation to the murder of wife and son
of the appellant is based on circumstantial evidence. The appellant
was not seen at his home nor is there any evidence to indicate him
to have been last seen in the company of the deceased wife and son.
So far as regards the murder of Ashok is concerned, learned counsel
would submit that the family members of Ashok (deceased) had,
time and again, asked him not to keep relationship with Gaubai
(deceased). There, therefore, used to be frequent quarrels between
Ashok on one hand and his family members on the other. His death
took place in the midnight. The so called eye-witnesses were not
present at the crime scene. According to learned counsel, they were
planted witnesses. They are interested witnesses. According to him,
there are material contradictions between the evidence of the eye
witnesses namely, PW 2 - Narayan and PW 7 - Sakharam.
Statements of the witnesses have been recorded late. There is no
evidence to corroborate the evidence of the interested witnesses.
According to him, the extra-judicial confession is very weak piece of
evidence. Same has not been corroborated. The house of the
appellant was locked. Key there of was not recovered nor discovered
at the instance of the appellant. The C.A. reports do not carry much
relevance since the carrier of the articles to C.F.S.L. has not been
examined. Possibility of tampering with those articles also could
not be ruled out. According to him, the case of murder of wife and
son of the appellant was based on circumstantial evidence. The
circumstances relied on have neither been proved nor do they
constitute the complete chain to unerringly point out the guilt of the
appellant and of none else.
6. On the submission of learned APP for enhancement of
sentence is concerned, learned counsel for the appellant would
submit that the appellant has been behind the bars since
01.07.2015. His conduct in jail is very good. He is, therefore, kept in
open prison. The reports in that regards solicited by this court from
the authorities concerned were referred to and relied on.
7. Learned APP would, on the other hand, submit that the
appellant has committed three brutal murders. According to her, the
trial court ought to have imposed death sentence on the appellant.
According to her, it is a rarest of rare case. She took us through the
evidence of each witness, to ultimately urge for dismissal of the
convict's appeal and allowing of the appeal for enhancement filed by
the State.
8. Considered the submissions advanced. Perused the
evidence on record. Also perused the judgment impugned herein.
9. Let us advert to the evidence on record and appreciate
the same.
PW 2 - Narayan is nephew of the appellant. Deceased
Ashok was the appellant's real brother. Ramkishan, father of PW 2 -
Narayan, was the third brother of the appellant and deceased Ashok.
The appellant would reside in the village along with his wife and two
sons namely, Gaubai, Hanmant and Madhav, respectively. On the
given night, Madhav was not home. It is in the evidence of PW 2 -
Narayan that he along with his uncle Ashok (deceased) and their
employee Sakharam (PW 7) were asleep in their field. They were
sleeping on separate wooden cots at a distance of 5 ft. between each
of them. At about 02.00 in the intervening night of 9 th and 10th July,
2015, he heard some noise. Both he and PW 7 - Sakharam,
therefore, woke up. Sakharam had a torch with him. He switched it
on. They saw the appellant to have assaulted on the neck of Ashok
with axe. He made shouts "A...A...A". He then questioned the
appellant as to why did he assault Ashok. The appellant, thereafter,
replied him to have come there just after having killed his wife and
son (Gaubai and Hanmant). The appellant then attempted to give
axe blow on the person of PW 2 - Narayan. He avoided the blow.
The blow, however, fell on his stomach. The appellant, thereafter,
proceeded towards Sakharam (PW 7) to assault him. The appellant,
thereafter, went towards his own cattle-shed. It is further in his
evidence that he immediately went to his village Manur, half km.
away from the scene of offence and informed his paternal aunt and
her husband Balaji Patil. All of them then came back to the field. It
is further in his evidence that while they were around the dead body
of Ashok, the appellant came. He took two rounds around the dead
body of Ashok. The appellant then had bouts of vomiting. He,
thereafter, slept on wooden cot of Sakharam (PW 7). PW 2 -
Narayan immediately called his aunt Shantabai, wife of Ashok. Some
of the villagers gathered. One Sambhaji Tode (PW 3) took him and
the appellant to the hospital for treatment. The police recorded his
statement (FIR - Exh.12) in rural hospital at Naigaon. It is further in
his evidence that the appellant used to beat up his wife Gaubai
(deceased) for trifle reasons. The appellant was hot-tempered. He
would suspect each and every act of his family members. PW 2 -
Narayan referred to the FIR (Exh.12) and identified his signature
thereon. According to him, his statement was also recorded by the
Judicial Magistrate. His statement (Exh.13) recorded under Section
164 of the Code of Criminal Procedure was also referred to him.
10. PW 2 - Narayan was subjected to a searching cross-
examination. He was suggested that even after receiving blow of
axe, he was conscious oriented and able to speak. This suggestion
goes a long way to indicate the appellant to have admitted that PW 2
- Narayan was given axe blow. PW 2 - Narayan was confronted with
the FIR (Exh.12). Following matter was admitted to have not been
stated by him to police in the FIR :-
5- I made a statement before police that I myself
and Sakharam Pawar was slept on the wooden cot
(Baj). l made a statement before police that
Sakharam Pawar wake up from the sleep and he on
the torch towards the sound and Sakharam Pawar
was having torch in his hand. I made a statement
before police that accused Pralhad after the incident
went towards his own cattle shed (Akhada). I made
statement before the police that accused Pralhad
went towards Sakharam Pawar to give a blow. I made
a statement before the police that Sakharam Pawar
came along with me to Manur. ................
Same suggests him to have made some improvement over his
contentions in the FIR. He also admitted that police constable had
accompanied him in the court at Kandhar. This suggestion was in
relation to recording of statement under Section 164 of Cr.P.C. He
denied that his father and deceased Ashok were members of joint
family. He has, however, admitted that his father and deceased
Ashok were residing in their house built by his grandfather; whereas
the appellant was residing in a house, which was in dilapidated
condition.
11. It was further suggested to PW 2 - Narayan that there
was illicit relationship between Ashok and Gaubai (wife of appellant).
Two days before the incident, there was quarrel among the family
members of Ashok over his relationship with Gaubai. It was also
suggested to him that Ashok had asked Gaubai to leave the
appellant and children and start residing with him. All these
suggestions have been denied by this witness. It is also brought on
record through the cross-examination of PW 2 - Narayan that the
house of Pralhad (appellant) was located in a thickly populated area.
He, however, claimed ignorance about the appellant to have not
been present at his residence on the fateful night.
12. PW 7 - Sakharam gave his evidence consistent with the
evidence of PW 2 - Narayan. It is in his evidence that he hailed from
village Mahati, Tq. Umri. He was serving with Ashok (deceased) as
farm labour. It is in his evidence that on the fateful night, PW 2 -
Narayan, he himself and Ashok were asleep on separate wooden cots
in the agricultural field. On hearing some noise, he and PW 2 -
Narayan woke up. He switched on the torch. He saw the appellant
to have axed Ashok. It is further in his evidence that the appellant
suspected the deceased Ashok to have illicit relationship with his
wife. He, therefore, killed him. It is further in his evidence that the
appellant then assaulted PW 2 - Narayan on his thigh. It is further in
his evidence that he accompanied PW 2 - Narayan to village Manur
and informed the incident to the sister and brother-in-law of Ashok.
All of them immediately came back to the field. It is further in his
evidence that the appellant took two rounds around the dead body of
Ashok. The appellant then had bouts of vomiting. The appellant and
Narayan were taken to the hospital for treatment.
13. PW 7 - Sakharam too was subjected to searching cross-
examination. He claimed ignorance as to the family members of
deceased Ashok to have advised him (Ashok) not to keep
relationship with the wife of the appellant. He also claimed
ignorance that there was, therefore, dispute among the family
members of Ashok. He denied to have not witnessed the incident.
14. PW 8 - Maruti Shinde is witness to the scene of offence
panchnama (Exh.23), drawn in the field. His evidence indicates that
an axe, pesticide-tin, a shoe, chappal, blood-mixed clay, Baniyan,
gunny-bag, blanket, etc. were seized under panchnama (Exh.23)
15. PW 1 is witness to the scene of offence panchnama
(Exh.10) drawn at the house of the appellant. It is in his evidence
that the police broke open the lock of the house of the appellant on
10.07.2015. On breaking open the house, Gaubai and her son
Hanmant were found dead in a pool of blood. There were six bags of
fertilizers. Those were stained with blood. He also saw blood stains
on the wall of the room. One bicycle was there in the room. One
wooden cot was there. Gaubai had suffered neck-cut injury. A knife
was lying between the two dead bodies. The police officials seized
all those articles and drew panchnama (Exh.10). According to this
witness, photographs of the scene of offence were also snapped.
During his cross-examination, he could not give the exact boundaries
of the house of the appellant. He admitted that there was no
signature on the packet containing cotton swab.
16. PW 3 - Sambhaji's evidence is to the effect that he knew
the appellant and PW 2 - Narayan as well. He was their distant
relative. On hearing hue and cry on the night of 10.07.2015, he
woke up and came out of his house to see what had happened. He
was informed that the appellant committed murder of his brother
Ashok in the field. He, therefore, immediately, rushed to the field
and saw Ashok was lying on the wooden cot. He also saw the
appellant was laid on another cot. He noticed one axe near the
appellant. It is further in his evidence that he saw the appellant had
bouts of vomiting. Sambhaji, therefore, called vehicle. He
accompanied to take the appellant and PW 2 - Narayan for treatment
in the hospital at Naigaon. It is further in his evidence that on way to
the hospital, PW 2 - Narayan narrated the entire incident and how
the appellant axed his brother Ashok. During cross-examination,
whatever he has deposed to in examination-in-chief was disputed.
He too was suggested that there was illicit relationship between the
deceased Ashok and Gaubai (deceased), wife of the appellant. He
denied the same.
17. PW 4 - Ananda's evidence indicates that he knew both
appellant and deceased Ashok. It is in his evidence that by 3:00 in
the night, he heard some noise on the road. He came out of the
house. The family members of Ashok were crying. He learnt that
Ashok was killed in the field. He, therefore, rushed to the field and
saw Ashok dead. He also saw the appellant was lying on the nearby
cot. There was axe by the appellant's side. It is further in his
evidence that while he returned to the village, the police had already
arrived. He peeped into the house of the appellant to notice the
appellant's wife and son lying dead in the pool of blood. The
suggestion indicating the appellant's defence were put to him. Since
he was not eye-witness to the incident, he was not subjected to a
searching cross-examination.
18. PW 5 - Saraswati is the sister of deceased Ashok and
appellant as well. It is in her evidence that PW 2 - Narayan had
come to her residence in the dead of night. He told her the appellant
to have committed murder of Ashok. She along with her husband,
therefore, accompanied PW 2 - Narayan to Ashok's field. It is further
in her evidence that she saw the dead body of Ashok in the field.
She then visited the house of the appellant and saw his wife and son
dead. During her cross-examination, it is brought on record that
while she reached the crime scene, no one was present except them.
It is further in her evidence that the appellant arrived during their
presence at the spot. She denied PW 2 - Narayan to have not
related her the appellant to have murdered Ashok.
19. PW 6 - Datta's evidence indicates that he knew deceased
Ashok, the appellant and their family members. It is in his evidence
that by 01.30 a.m., he woke up to answer the nature's call.
According to him, he was sleeping near Maroti temple in the village
on that night. He saw the appellant proceeded towards his field
armed with an axe. It is further in his evidence that he woke up all
his family members and proceeded towards the field of Ashok. He
saw Ashok had died and the appellant was vomiting. The appellant's
sister, his nephew and some others were present there. Except
disputing his version in the examination-in-chief, this witness was
not subjected to searching cross-examination.
20. PW 9 - Dr.Ananda's evidence indicates that he was
medical officer at rural hospital, Naigaon, on 10.07.2015. According
to him, he examined the appellant, who was brought by police and
his relatives. He extended the appellant primary medical treatment
and referred him to Civil Hospital, Nanded, and issued certificate
(Exh.25) to that effect. The certificate indicates it to be a case of
`organophosphorus poisoning'. His evidence further show that he
examined PW 2 - Narayan to notice contused abrasion on his lumber
region. The injuries were simple in nature.
21. PW 10 - Dr.Bhurke testified that he was Asst. Professor at
Medical College, Nanded. The police had brought the appellant to
the hospital on 10.07.2015. He examined the appellant and found
he was not in a position to talk. The police report submitted to him
indicates the appellant to have consumed poison. His evidence
further indicates that the appellant's condition was not good. There
were symptoms of poisoning. He, therefore, admitted him to the
hospital. The appellant was discharged from the hospital on
01.08.2015, i.e. about 20 days after the incident of murder of Ashok
and others. PW 10 - Dr. Bhurke referred to the appellant's discharge
card (Exh.28).
22. PW 11 - Prakash is a witness to the seizure of clothes on
the person of the appellant on 12.07.2015. He referred to the
panchnama (Exh.30) drawn in that regard.
23. PW 12 - Dr. Pushpak conducted postmortem examination
on the mortal remains of Gaubai, Hanmant and Ashok. He gave
details of the injuries on their person. According to him, the cause of
death of all the three was asphyxia due to cut-throat. The
postmortem report of the deceased are at Exhs.34, 35 and 36.
24. PW 13 - Maroti Chavan is A.P.I., attached to Kuntur Police
Station on 10.07.2015. It is in his evidence that API Patil had
informed him to have learnt from Ananda Shinde (PW 4) of
Antargaon that the appellant committed murder of his brother. He,
therefore, made the station-diary entry to that effect. The station-
diary entry has been tendered in evidence vide Exh.38. It is further
in his evidence that he accompanied API Patil (PW 14) to village
Antargaon.
25. PW 14 did investigation of the crime. His evidence
indicates that pursuant to the intimation about the incident, he
rushed to the village. He then visited the Rural Hospital, Naigaon.
He then visited the house of the appellant. It was locked. The
entrance door of the house was broken open to find the wife and
son of the appellant were lying in the pool of blood. His evidence
further indicates that he drew the scene of offence panchnama and
seized articles from both the crime scenes. He sent all those articles
to C.F.S.L. for chemical analysis and report. His evidence further
indicates that the inquest on the mortal remains of the three were
conducted in the presence of the panchas.
26. Above referred was the evidence in the case. PW 2 -
Narayan is none other than the son of real brother of the appellant
and deceased Ashok. He, therefore, cannot be branded as interested
witness. He did not have reason to give false evidence against his
uncle (appellant). His injury certificate (Exh.26) indicates his
presence at the crime scene in the field. PW 7 - Sakharam, although
a servant of deceased Ashok, was naturally bound to be in the field.
He was engaged for agricultural operations. We do not find any
reason to disbelieve evidence of both PW 2 - Narayan and PW 7 -
Sakharam. Their evidence indicates the appellant to have axed
Ashok. They witnessed the same. Their evidence further indicates
that they went to the house of the sister (PW 5 Saraswati) of the
appellant and deceased Ashok. She along with her husband Balaji
Patil came to the field of Ashok. There is evidence to indicate that
the appellant consumed some poisonous substance and took two
rounds around the dead body of Ashok. He then threw up. PW 3 -
Sambhaji had accompanied PW 2 - Narayan and the appellant to the
Rural Hospital, Naigaon, for treatment. The appellant, thereafter,
was shifted to Medical College Hospital at Nanded. He was indoor
patient there for about 20 days. In our view, he had no reason to
consume poisonous substance with intention to commit suicide.
Based on the eye-witnesses account of PW 2 - Narayan and PW 7 -
Sakharam, the prosecution has proved the appellant to have
committed murder of his real brother Ashok in the field.
27. The appellant's wife Gaubai and son Hanmant were
found dead in the pool of blood in the appellant's house on the same
night. The house was locked from outside. The lock was broken in
the presence of panchas. PW 6 - Datta had seen the appellant
proceeding towards his field armed with axe. Same suggests that
the appellant, after having killed his wife and son, left the house and
proceeded towards the field.
28. The appellant gave additional statement under Section
313 of Cr.P.C. According to him, on the fateful night, he was in his
field. He meant to say that he was not home. According to him, his
another son Madhav had gone to the house of his friend for study.
He was informed by his relations that someone killed his wife and
son. Therefore, he started proceeding towards his house. He then
learnt that his brother Ashok too was murdered in his field. He was
killed by his sons and some unknown persons. According to him,
when he was proceeding towards his house, 3-4 unknown persons
overpowered him and forcibly administered poisonous substance.
They brought him to Akhada whereat, Ashok was lying dead.
According to him, because of administration of poison, he had bouts
of vomiting. When he gained consciousness, he realised to have
been in the hospital at Nanded. According to him, deceased Ashok
wanted to have illicit relationship with his wife. His sons were
persuading him not to be after the wife of the appellant. According
to him, he has been falsely implicated by the children of deceased
Ashok.
29. It is true that the appellant is not bound to lead any
defence evidence; but the version he has come with sounds
unreasonable. We have already observed above that based on the
eye witnesses account of informant PW 2 - Narayan and PW 7 -
Sakharam, it is proved that the appellant committed murder of his
brother Ashok. The tenor of cross-examination of the witnesses
indicates that the appellant was suspecting illicit relationship
between his wife Gaubai and deceased Ashok. The motive behind
commission of three murders appears to be the appellant to have
suspected such relationship.
30. On appreciation of the aforesaid evidence, we find no
reason to take a view different than one taken by the trial court in
convicting the appellant for the offence of murder and
consequentially, sentencing him to imprisonment for life. In our view,
the trial court ought to have passed separate conviction for each
murder and passed separate sentence in relation thereto. Same has
not been done. Be that as it may.
31. So far as the State's appeal for enhancement of sentence
from life to death is concerned, we find it to be not rarest of rare
case inspite of there being three murders committed by the
appellant. When this appeal came up for hearing by its turn, the
appellant has already undergone sentence of little over eight and
half years. In view of Manoj and others vs. State of Madhya
Pradesh, 2023(2)SCC 353, this Court had called certain reports
from the jail authorities. The reports have been placed on record.
The report of Medical Officer of open prison, Amravati, indicates the
appellant to have been keeping good health. The Superintendent of
Open Prison, Amravati, has certified the appellant to be of good
behaviour. He also certified the appellant to have never misbehaved
in jail. It has also been informed that the appellant has never been
granted remission. It is further informed that the appellant is doing
agricultural work honestly. His conduct is good. The Psychiatrist's
report in relation to the appellant indicates :-
"Clinical Impressions:
Pralhad self reported information, coupled with his
scored on psychological measures, suggest a
diagnosis of no depressive and psychotic, manic
obsessive features at present."
32. Learned counsel for the appellant relied on the judgment
in the case of Bachan Singh vs. State of Punjab, AIR 1980 SC
898. He referred to paragraph 204 of the judgment, which pertains
to mitigating circumstances. The same is reproduced below:-
204. Dr. Chitaley has suggested these mitigating
factors:
Mitigating circumstances: In the exercise of its
discretion in the above cases, the Court shall take into
account the following circumstances :
(1) That the offence was committed under the
influence of extreme mental or emotional
disturbance.
(2) The age of the accused. If the accused is young or
old, he shall not be sentenced to death.
(3) The probability that the accused would not
commit criminal acts of violence as would constitute a
continuing threat to society.
(4) The probability that the accused can be reformed
and rehabilitated. The State shall by evidence prove
that the accused does not satisfy the conditions 3 and
4 above.
(5) That in the facts and circumstances of the case the
accused believed that he was morally justified in
committing the offence.
(6) That the accused acted under the duress or
domination of another person.
(7) That the condition of the accused showed that he
was mentally defective and that the said defect
impaired his capacity to appreciate the criminality of
his conduct.
He then relied on the Apex Court judgment in the case of Machhi
Singh Vs. State of Punjab, AIR 1983 SC 957, wherein, it has
been observed thus:-
33. In this background the guidelines indicated in
Bachan Singh's case (supra) will have to be culled out
and applied to the facts of each individual case where
the question of imposing of death sentences arises.
The following propositions emerge from Bachan
Singh's case:
(i) the extreme penalty of death need not be
inflicted except in gravest cases of extreme
culpability;
(ii) Before opting for the death penalty the
circumstances of the 'offender' also require to be
taken into consideration along with the circumstances
of the 'crime'.
(iii) Life imprisonment is the rule and death
sentence is an exception. In other words 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, and only
provided 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 the relevant
circumstances.
(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so the
mitigating circumstances has to be accorded full
weightage and a just balance has to be struck
between the aggravating and the mitigating
circumstances before the option is exercised.
33. As against this, learned APP only submitted that it is a
rarest of rare case and the appellant committed three murders and
therefore, deserves death sentence. No aggravating circumstances
have been brought to our notice. On the contrary, it is reiterated
that the reports are received from the jail authority informing the
appellant is of good behaviour. He never misbehaved in jail.
Considering his conduct, he has been kept in open prison at
Amravati. It needs no mention that a prisoner is kept in open prison
when his conduct is found good. No submissions were advanced
regarding imposing sentence of life imprisonment to mean till the
end of natural life.
34. In the above factual backdrop and for the reasons given
herein above, we find that both the appeal deserve to be dismissed.
35. Needless to mention that in an appeal for enhancement
of sentence from life imprisonment to death, the appellant/State
ought to have urged for taking up such appeal for hearing
immediately/forthwith. It is reiterated that the appellant has, so far,
been behind the bars for eight and half years.
36. After having held the appellant guilty of the offence of
murder, the trial court had heard both the appellant and learned
APP-in-charge who conducted the case. Learned APP had submitted
before the trial court as under:-
"26. ..............
..............
.............. Heard ld. App Mr.D.V.Kulkarni on
the point of sentence, he submitted that the accused
has committed the murder of his wife, son and
brother with some ulterior motive, it is a serious
offence which affect the society, hence, sentence as
per law be awarded.
Same indicates that the State was not insistent to see that the
appellant was awarded death sentence. It suggests that according
to learned APP-in-charge of the case, it was not the rarest of rare
case and therefore, he made such submissions before the trial Court.
37. In the result, the appeals are hereby dismissed.
[NEERAJ P. DHOTE, J.] [R.G. AVACHAT, J.]
KBP
