Bombay High Court
State Of Maharashtra vs Deepak Birbahadur Jath on 10 October, 2024
Author: Revati Mohite Dere
Bench: Revati Mohite Dere
Digitally
signed by
SHAGUFTA
2024:BHC-AS:40240-DB
SHAGUFTA QUTBUDDIN
QUTBUDDIN PATHAN
PATHAN Date: CONF-4-2023 & APEAL-434-2024-J.doc
2024.10.10
18:52:09
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CONFIRMATION CASE NO. 4 OF 2023
The State of Maharashtra
Through Bandra Police Station,
Mumbai
... Appellant
Vide C.R. No. 156 of 2017
Versus
Deepak Birbahadur Jath,
Age about 45 years,
Residing at Room No.16, Ganesh Nagar,
Bandstand, B.J. Road, Bandra (W),
Mumbai - 400 050
... Respondent
At present in District Central Prison,
Akola
WITH
CRIMINAL APPEAL NO. 434 OF 2024
WITH
INTERIM APPLICATION NO. 1305 OF 2024
(Application for Bail and Suspension of Sentence)
IN
CRIMINAL APPEAL NO. 434 OF 2024
Deepak Birbahadur Jath,
Age about 45 years,
Residing at Room No.16, Ganesh Nagar,
Bandstand, B.J. Road, Bandra (W),
Mumbai - 400 050
SQ Pathan 1/52
::: Uploaded on - 10/10/2024 ::: Downloaded on - 11/10/2024 00:19:59 :::
CONF-4-2023 & APEAL-434-2024-J.doc
At present in District Central Prison, ... Appellant/
Akola Applicant
Versus
The State of Maharashtra
Through Bandra Police Station,
Mumbai ... Respondent
Vide C.R. No. 156 of 2017
Mr. K. V. Saste, Addl. P.P for the Appellant-State in CONF-
4/2023 & for the Respondent-State in Appeal/434/2024
Ms. Farhana Shah for the Respondent in CONF-4/2023, for the
Appellant in Appeal/434/2024 and for the Applicant in
IA1305/2024
CORAM : REVATI MOHITE DERE &
SHYAM C. CHANDAK, JJ.
RESERVED ON : 11th JULY 2024
PRONOUNCED ON : 10th OCTOBER 2024
JUDGMENT (Per Revati Mohite Dere, J.) :
1 The aforesaid confirmation case arises out of a
reference made by the learned Sessions Judge, City Civil Court,
Mumbai, under Section 366(1) of the Code of Criminal
Procedure (`Cr.P.C') for confirmation of the death sentence
CONF-4-2023 & APEAL-434-2024-J.doc
awarded to the convict, vide judgment and order dated 7 th
November 2023 passed in Sessions Case No. 562/2017. The
learned Sessions Judge vide the said judgment and order has
sentenced accused-Deepak Birbahadur Jath, to death. The
operative part of the order reads thus :
"O R D E R
1. Accused Deepak Birbahadur Jath is hereby convicted for
the commission of offences punishable U/s.302, 307 of
Indian Penal Code registered by Bandra Police Station in
Crime No.156 of 2017.
2. Accused Deepak Birbahadur Jath is hereby sentenced to
Death and fine of Rs 5,000/- (Rupees Five Thousand Only)
in default further rigorous imprisonment of six months on
each count of Death of Amrawati and Angel, for the
commission of offence punishable U/s.302, of Indian Penal
Code registered by Bandra Police Station in Crime No.156
of 2017.
3. The sentence of the death penalty be executed once by
hanging the accused Deepak Birbahadur Jath by the neck
till he is dead subject to confirmation of the death sentence
by the Hon'ble High Court under Section 368(a) read with
Section 366 of the Code of Criminal Procedure, 1973.
4. Accused Deepak Birbahadur Jath is hereby sentenced for
rigorous imprisonment of life and fine of Rs.5000/- in
default further rigorous imprisonment of six months for
CONF-4-2023 & APEAL-434-2024-J.doc
the commission of offence punishable U/s. 307 of Indian
Penal Code registered by Bandra Police Station in Crime
No.155 of 2017.
5. All sentences to run consecutively.
6. Accused is entitled for set off for the period already
undergone if entitled to.
...... ........"
2 Deepak Birbahadur Jath (respondent in Confirmation
Case) has also filed the aforesaid appeal against his conviction
and sentence as stated aforesaid. For the sake of convenience,
hereinafter, we would be referring Deepak Jath as `accused'.
3 Since the challenge is to the same impugned judgment
and order, the confirmation case as well as the appeal against
conviction, are being disposed of together.
4 The prosecution case in brief is as under :
The incident in question took place on 14 th April
2017 between 12:00 to 12:30 noon, when Amravati (deceased)
CONF-4-2023 & APEAL-434-2024-J.doc
and her daughter Roshni (PW1) were preparing bracelets in the
house; and at which time, their tenant one Kanta Eikka (PW7)
with her 2 year old daughter-Angel (deceased) were sitting next to
Amravati. It is the prosecution case that the accused came there
with a bottle filled with petrol and stated that " आज मैं तु झे जिजंदा
ू ा" and poured the said petrol on Amravati; that the petrol
जला दं ग
also fell on Kanta (PW7) and her daughter-Angel; that when
Amravati tried to get up, the accused-Deepak Jath threw a lit
matchstick on Amravati, as a result of which, Amravati caught fire
and so did Kanta and her daughter-Angel. It is also the
prosecution case, that prior to pouring petrol on Amravati, the
accused had thrown petrol on PW1-Roshni, however, Roshni ran
inside the house, and when she came out, she saw her mother-
Amravati on fire. On hearing the cries, the neighbours came
and doused the fire, after which, the injured were taken to the
hospital, where Amravati's (deceased) statement was recorded.
Amravati and Angel, died during the course of treatment on 27th
April 2017 and 22nd April 2017, respectively, as a result of the
CONF-4-2023 & APEAL-434-2024-J.doc
burn injuries. Initially, on the basis of Amravati's statement, C.R.
was registered for the offence punishable under Section 307 of
the Indian Penal Code (`IPC') and on the demise of Amravati and
Kanta's daughter-Angel, Section 302 of the IPC came to be
added. During the course of investigation, the police arrested the
accused, recorded the statements of the witnesses, carried out
panchnama, etc. and thereafter, filed charge-sheet as against the
accused in the Court of the learned Metropolitan Magistrate,
Mumbai. Since the offences were triable by the Court of
Sessions, the learned Metropolitan Magistrate, Mumbai,
committed the case to the Court of Sessions, for trial.
The trial Court framed charge as against the accused
for the offences punishable under Sections 307, 326(A), 302 of
the IPC. The accused pleaded not guilty to the charge and
claimed to be tried.
The prosecution, in support of its case, examined as
CONF-4-2023 & APEAL-434-2024-J.doc
many as 17 witnesses i.e. PW1-Roshni Harijan (daughter of
deceased-Amravati); PW2-Riyaj Shaikh (Panch to the seizure of
clothes of the accused); PW3-Ajay Varma (Panch to the seizure of
lighter); PW4-Jitendra Singh (Panch to the inquest panchnama);
PW5-Shainaz Singh (fruit vendor); PW6-Suresh Valanju (shop-
keeper from whom, the lighter was purchased by the accused);
PW7-Kanta Eikka (injured, eye witness); PW8-Mithu Singh;
PW9-Birju Rana (tea stall owner, who saw the smoke and took
the victims to the hospital); PW10-Dr. Suhas Abhyankar,
(Medical Officer of Masina Hospital, where Amravati was
treated); PW11-Dr. Siddharth Sawardekar (Medical Officer, who
performed postmortem of Angel on 22nd April 2017); PW12-
Rohit Kalubarme, API attached to the Azad Nagar Police Station
(Investigating Officer, to whom Amravati gave a dying
declaration); PW13-Anandrao Ghadge, API, (who arrested the
accused and seized the accused's clothes); PW14-Deepika Parab,
(Executive Magistrate, who recorded the dying declaration of
Amravati on 15th April 2017); PW15-Dr. Amit Ilankar (Medical
CONF-4-2023 & APEAL-434-2024-J.doc
Officer, who gave opinion that Amravati was oriented and fit to
give her statement); PW16-Dr. Sunil Pandey (Medical Officer,
who examined the injured Kanta Eikka); and PW17-Vijay Belge,
Sr.PI, the Investigating Officer.
The accused's statement was recorded under Section
313 of the Cr.P.C. The accused in his 313 statement stated that
the deceased and others were calling him Chhakka and Hijda and
that though he was not talking to them, they were calling him
Chhakka. Exact words in 313 are, ' मे रे को छक्का जि जरा बोल र े थे .
इसजिलये मै ने उनको जिजंदा फुंक जिदया, मै ने कुछ जिकया न ीं. में उनसे बात भी
न ीं कर र ा था. मु झे दो बार छक्का जि जरा क ा'. It is the accused's
case, that on the second occasion, when he was called Chhakka
and Hijda, he flashed his private part, however, despite the same,
he was called Chhakka and Hijda. According to the accused, as
he was provoked, the incident took place.
After hearing the learned counsel for the respective
CONF-4-2023 & APEAL-434-2024-J.doc
parties, the learned Judge convicted and sentenced the accused,
as stated in para 1 above.
5 Ms. Farhana Shah, learned counsel appearing for the
accused submitted that the incident took place on account of
Amravati calling the accused Chhakka and Hijda. She submits
that the accused was examined, post the incident and was found
to be mentally unstable. She submitted that the accused was not
only unfit during the trial, but was also unable to comprehend the
trial. She relied on the medical case papers of the accused, which
are part of the paper-book. Ms. Shah submitted that infact, the
accused was declared unfit for trial on 23 rd October 2021 and
that the trial proceeded from 10 th June 2022, only when he was
declared fit for trial. She submitted that the evidence of the eye-
witnesses i.e. PW1-Roshni and PW7-Kanta, cannot be relied
upon because of the inconsistencies in their evidence and as such,
the accused is entitled to benefit of doubt. She further submits
that in the event, the Court comes to the conclusion that the
CONF-4-2023 & APEAL-434-2024-J.doc
accused has committed the offences in question, this is not a case
warranting death sentence, having regard to the facts of the case.
6 Mr. Saste, learned Addl. P.P supported the impugned
judgment and order of conviction and sentence. He submitted
that the evidence of PW1-Roshni and PW7-Kanta, (injured),
inspire confidence and as such, have rightly been relied upon by
the trial Court, whilst convicting the accused. Learned Addl. P.P
also relied on the evidence of PW9-Birju Rana, who helped take
Amravati to the hospital and to whom an oral dying declaration
was made by Amravati. Learned Addl. P.P further relied on the
evidence of PW12-Rohit Kalubarme, API attached to Azad Nagar
Police Station, who recorded the dying declaration of Amravati,
clearly pointing to the complicity of the accused. He submitted
that the said dying declaration has been duly corroborated by
PW15-Dr. Amit Ilankar, Medical Officer attached to the Sion
Hospital, who has deposed that Amravati, at the time of making
the dying declaration, was oriented and fit to make the statement.
CONF-4-2023 & APEAL-434-2024-J.doc
As far as sentence of capital punishment is concerned, he
submitted that two persons had lost their lives in the said incident
and that the act of the accused in coming and throwing petrol
shows that it was pre-planned and as such, no interference was
warranted in the sentence so awarded by the trial Court.
7 We have heard learned counsel for the respective
parties and perused the evidence with their assistance.
8 PW1-Roshni, is the daughter of deceased-Amravati.
At the relevant time, she was aged 17 years and at the time of
deposition, 19 years. PW1-Roshni, in her evidence, has stated
that at the time of the incident, she was studying and was also
helping her mother prepare bracelets; and that the accused being
her neighbour, she knew him. She has stated that 15 days prior
to the incident i.e. on 14th April 2017, when she was sitting
outside her house, at about 10:30 a.m, the accused came from his
house; saw that there was no one in the lane; after which, he
CONF-4-2023 & APEAL-434-2024-J.doc
lowered his pant and flashed his private part at her; that she went
inside the house and disclosed the said incident to her mother-
Amravati; pursuant to which, her mother-Amravati went and
disclosed the incident to the accused's father, after which there
was a quarrel between the accused's father and her mother
(Amravati). According to PW1-Roshni, after the said incident,
the accused would look at her angrily, whenever he would see
her. According to PW1-Roshni, on 14th April 2017, at about
12:00/12:30 noon, when she was sitting with her mother
(Amravati) in the lane outside their house and preparing
bracelets, Kanta Eikka (PW7) and her daughter-Angel joined
them; that at that time, the accused came there with a plastic
bottle, containing petrol and poured petrol on her person; that
she ran from the said spot, after which, the accused poured petrol
on the persons present there; that when she was running, she
heard the accused threatening her mother (Amravati) "aaj main
tujhe jinda jala dunga"; that as her skin was burning due to petrol,
she went inside the house, cleaned herself, and when she came
CONF-4-2023 & APEAL-434-2024-J.doc
out, she saw that her mother-Amravati, Angel and Kanta (PW7)
were in flames; that she started shouting for help, pursuant to
which, her neighbours came to the spot; that with their help,
Amravati, Kanta and Angel were taken to Sion hospital; however,
as the doctor refused to admit Amravati in Sion hospital, she was
shifted to Masina Hospital, Byculla. PW1-Roshni, has stated that
her mother (Amravati) was admitted at Masina hospital for 14
days and that during the treatment she expired; that Angel also
expired in Sion hospital during the course of treatment and Kanta
sustained serious injuries. According to PW1-Roshni, the police
recorded her statement, drew the spot panchnama in her
presence, after she showed the spot to the police; seized the
mobile phone of her mother-Amravati, , which was completely
damaged due to fire; seized the burnt clothes of her mother-
Amravati, Angel and Kanta (PW7); and also seized some
bracelets and a plastic bottle from which the accused had thrown
petrol. PW1 has identified the aforesaid articles in Court.
In her cross-examination, PW1 has given her date of
CONF-4-2023 & APEAL-434-2024-J.doc
birth as 15th February 1998. Admittedly, there is no challenge to
the same. PW1 in her cross-examination, has further stated that
they had given a complaint in the Police Station with respect to
the incident that had taken place 15 days prior i.e. on 14 th April
2017 i.e. the incident when the accused flashed his private part,
however, the police did not take any action nor did the police
give her a copy of the complaint. PW1 has admitted that after
the said incident, though the accused would look at her angrily,
neither she nor her parents informed the police about the same.
She has denied the suggestion that the accused was a mentally ill
person. It is pertinent to note that PW1 in her cross-examination
has admitted that it was true that the accused poured petrol on
her person, due to which, she was scared and ran away without
helping her mother and others; and that when she returned, she
saw her mother-Amravati, Angel and Kanta (PW7) in flames.
Infact, there is no cross-examination with respect to the incident
which took place on 14th April 2017 as stated herein-above i.e.
how the accused came to the spot and poured petrol on her, her
CONF-4-2023 & APEAL-434-2024-J.doc
mother-Amravati and others. The same has gone completely
unchallenged.
9 The other witness is PW7-Kanta Eikka (injured
witness). PW7-Kanta has, in her evidence, stated that she was
living as a tenant of Amravati (deceased); that on 14 th July 2017
at about 12:00 to 12.30 in the afternoon, she was sitting and
making bracelets, when the accused came there; that the accused
was angry and was having a bottle filled with petrol with him
ू ा,
and was saying " जिजंदा जला दं ग ू ा" to Amravati
जिजंदा जला दं ग
(deceased); that the accused sprinkled petrol on Amravati
(deceased); that she and her daughter-Angel were sitting nearby
and a few drops fell on them; that thereafter, the accused took a
lighter and set Amravati ablaze; that she and her daughter Angel
also sustained burn injuries in the said incident; that her daughter
was admitted to the hospital for 8-9 days, after which, she
expired; that she too sustained serious burn injuries i.e. injuries to
her right hand, chest and right leg, however, she survived.
CONF-4-2023 & APEAL-434-2024-J.doc
According to PW7, the accused ran away from the spot, soon
after the incident.
In her cross-examination, PW7 has admitted that she
had never seen the accused quarreling or fighting with anyone in
the area; that she knew him for five years; that the accused was
behind Amravati's daughter-Roshni and wanted to marry her and
since Amravati and her daughter were not ready, there were issues
between them. PW7 has further in her cross-examination, stated
that she did not know whether the accused was harassing or
chasing any other girls in the area and that she did not have any
personal knowledge about the accused wanting to marry
Amravati's daughter. The actual incident of the accused pouring
petrol on Amravati and setting her ablaze has gone unchallenged.
10 Thus, it is evident from the aforesaid evidence of
PW1-Roshni, that the accused poured petrol on her and then on
Amravati and set Amravati ablaze. As noted above, the said
CONF-4-2023 & APEAL-434-2024-J.doc
evidence has gone unchallenged. PW7-Kanta (injured) has
corroborated the evidence of PW1. PW7's evidence clearly shows
ू ा",
that the accused came to the spot, after saying " जिजंदा जला दं ग
poured kerosene on Amravati and set her ablaze and in the said
process, she and Angel also sustained burn injuries. Even PW7-
Kanta's evidence with respect to the actual incident has gone
challenged. Infact, there is nothing in the cross examination of
PW7-Kanta, to disbelieve her testimony, more particularly when
she was an injured witness. We find the evidence of both these
witnesses credible, inspiring confidence.
11 The aforesaid evidence of PW1-Roshni Harijan and
PW7-Kanta Eikka is duly corroborated by PW5-Shainaz Singh
and PW9-Birju Rana.
12 PW5-Shainaz Singh was residing next to deceased
Amravati's house. PW5 has stated that he was working as a fruit
vendor at Band Stand; that on 14th April 2017, as usual he was at
CONF-4-2023 & APEAL-434-2024-J.doc
his shop; that when he saw smoke coming out of the house in the
nearby chawl, he went towards the said house; that when he was
reaching the said house, he saw the accused trying to escape; that
he dashed against the accused and asked him as to what had
happened, pursuant to which, the accused replied that he should
go and see what has happened; that when he went to Amravati's
house, he saw that two ladies and one child had sustained burn
injuries, out of which, one lady had sustained serious injuries;
that the said lady was saying "मु झे fnid जट (accused) ने petrol
डाल के जलाया" again and again; that he wrapped her with a saree
and bed sheet and took her to Sion Hospital.
Although 5-6 questions were put to PW5-Shainaz in
his cross-examination, nothing material has been elicited to
discredit his testimony. In his cross-examination, PW5 has
accepted that he did not know the reason why the accused had
burnt the victim.
13 PW9-Birju Rana has in his evidence stated that he was
CONF-4-2023 & APEAL-434-2024-J.doc
running a Tea and Samosa Stall; that on 14 th April 2017, when he
was standing in front of Girish Tower, he saw smoke coming from
the Ganesh Nagar lane; that he ran towards his house and told his
brother to switch off the DP, pursuant to which his brother
switched off the DP; that in the lane, one lady named Amravati
was lying in a burnt condition; that Shainaz (PW5) brought one
bed-sheet, wrapped Amravati and brought her on the road; that
they put her in a tempo and took her to Sion Hospital; that at
that time, Amravati told that that the accused had sprinkled
petrol on her person and set her ablaze.
In the cross-examination, PW9-Birju Rana has
admitted that he was sitting besides Amravati, when they took her
to the hospital; that she was speaking in a low voice; that she was
repeatedly saying that the accused had burnt her. Although an
endeavour was made to discredit the testimony of PW9 by
submitting that he was deposing at the behest of the police, as he
did not have a license for the stall i.e. his business, the said
CONF-4-2023 & APEAL-434-2024-J.doc
suggestion has been denied by him.
14 The evidence of PW5-Shainaz and PW9-Birju reveals
that Amravati had made an oral dying declaration to them, that
the accused had set her ablaze. Their evidence inspires
confidence and there is nothing in their cross which will want us
to disbelieve their presence at the spot; or the oral dying
declaration made to them.
15 PW8-Mithu Singh has also deposed that on 14 th April
2017 at about 9:30 - 10:00 a.m, he heard PW1-Roshni shouting
and saying that the accused had poured petrol on her body and
face; that when he went there, he found Amravati and one small
child had sustained burn injuries. The said evidence has gone
unchallenged in the cross-examination. Thus, this witness has also
duly corroborated the witnesses with respect to the accused
throwing petrol on the victims.
CONF-4-2023 & APEAL-434-2024-J.doc
16 Coming to the written dying declaration, the
prosecution, in support of its case, examined PW12-Rohit
Kalubarme, PW14-Deepika Parab and PW15-Dr. Amit Ilankar, to
prove the said dying declarations.
17 PW12-Rohit Kalubarme was examined by the
prosecution to prove the complaint (FIR) given by Amravati
(deceased) i.e. Exh.P-59. According to PW12-Rohit Kalubarme,
on 14th April 2017, he was attached to Bandra Police Station, as
a PSI on day duty. PW12-Rohit Kalubarme has deposed that the
concerned police received information that a person was
admitted in Sion Hospital, pursuant to which, he visited the
hospital and recorded the complaint; that he made inquiries with
the medical officer about the condition of the patient, pursuant
to which, the doctor gave an endorsement on the left hand side
of the said report; and that he recorded the complaint as per the
say of the patient. PW12 has further deposed that the
CONF-4-2023 & APEAL-434-2024-J.doc
complainant i.e. Amravati disclosed to him (i) that the accused
had an earlier dispute and hence he poured cumbersome
material and lit them up and stated ' vkt eS rq>s ftank tyk
naqxk'; (ii) that the accused had poured the cumbersome material
on her, the other lady and a child and set her (Amravati) ablaze
first, and then another lady and child; pursuant to which, they
all sustained burn injuries. PW12 identified the complaint and
the endorsement made by the Medical Officer with his signature
on the said complaint. He also identified the right toe
impression of the complainant i.e. Amravati and his (PW12's)
signature on the said complaint. The said complaint which was
treated as an FIR was marked as Exh.P-59. According to PW12,
he thereafter visited the spot of the incident in Ganesh Nagar
Slum; called panchas; that the spot was shown by the
complainant's daughter; that one Samsung Mobile, burnt
clothes, half burnt plastic bottle and dress of a child was seized
and the said articles were sealed. The said panchanama is at
Exh.28. PW12 has identified the seized articles i.e. burnt bottle
CONF-4-2023 & APEAL-434-2024-J.doc
(Art.1), Mobile (Art.1), burnt clothes (Art.3), baby frock
(Art.4), Kurti (Art.5) and partly burnt tarpaulin (Art.8). He has
further stated that on 17th April 2017, the accused gave a
disclosure statement that he will show the place where the
lighter was concealed by him and that he should accompany
him; that pursuant thereto, memorandum statement was
recorded (Exh.25) and thereafter, he alongwith panchas and the
accused went in a vehicle near a garden, where the accused
stopped the vehicle and removed the lighter from the trunk of
the tree and produced the same. The said lighter was identified
as Art.9. According to PW12, the accused disclosed that he had
purchased the lighter from Gurukrupa Shop and accordingly
showed them the shop from where the said lighter was
purchased. The said panchanama is at Exh.26. During the
course of the investigation, the said witness recorded the
statement of the witnesses and thereafter handed over the
investigation to P.I.-Vijay Berde.
CONF-4-2023 & APEAL-434-2024-J.doc
In his cross-examination, PW12 has admitted that he
had taken permission of the Medical Officer, prior to recording
of the complaint, although the same was not a written
permission; and that after recording the complaint, he had
requested the Special Executive Magistrate to record Amravati's
statement. PW12 further in his cross-examination has deposed
that he had got the accused examined clinically before his
statement was recorded, however, his examination was not done
by a psychologist. PW12 has denied that the mental condition of
the accused was not proper and that despite the same, he
proceeded to record his memorandum statement. PW12 has
denied the suggestion that no such incident had taken place and
that he carried out the investigation properly. PW 12 has
denied that the complainant (Amravati) did not give any
complaint. As noted above, Amravati's statement recorded by
PW12 was treated as an FIR, and subsequently, as a dying
declaration, after her demise.
CONF-4-2023 & APEAL-434-2024-J.doc
It is pertinent to note, that there is no cross-
examination of PW12-Rohit Kalubarme vis-a-vis what was
disclosed by Amravati to him i.e. with respect to the accused
pouring liquid on her and stating ' vkt eS rq>s ftank tyk
naqxk'.
18 The said evidence of PW12-Rohit Kalubarme has
been duly corroborated by PW15-Dr. Amit Ilankar.
19 The prosecution examined PW15-Dr. Amit Ilankar,
who opined that Amravati was oriented and fit to give the
statement. PW15 has stated that on 14 th April 2017, he was
deputed in the Burns Ward in Sion Hospital; that one Amravati
was admitted in their ward; that the police approached him to
certify that the said patient was oriented and able to give the
statement; pursuant to which, he opined that the patient i.e.
Amravati was oriented and fit to give her statement. He has
stated that he gave an endorsement on the statement after it was
CONF-4-2023 & APEAL-434-2024-J.doc
recorded. He has identified the endorsement made by him which
is at Exhibit P-59.
There is nothing in the cross-examination of this
witness to disbelieve his testimony with respect to the
endorsement given by him on the statement recorded by the
police i.e. Exhibit P-59. There is no cross with respect to whether
Amravati was in a position to give the statement or not or
whether she was oriented or not when she gave the statement.
The aforesaid witness's evidence has also been duly
corroborated by PW14-Deepika Parab, Executive Magistrate,
Mumbai City, who recorded the dying declaration of Amravati
on 15th April 2017 at Masina Hospital.
20 The prosecution examined PW14-Deepika Parab,
Executive Magistrate, to prove the dying declaration made by
Amravati to the said witness. PW14-Deepali was working in the
Collector's Office, Mumbai City, as an Executive Magistrate,
CONF-4-2023 & APEAL-434-2024-J.doc
Mumbai City, at the relevant time. She has stated hat she was
informed that one Amravati had suffered burn injuries and that
she had to record her dying declaration; that she received the said
information at around 3:30 pm and accordingly, she reached
Masina Hospital at about 4:20 pm; that she made inquiry with
the Medical Officer as to whether Amravati was in a position to
give her dying declaration; that the Medical Officer informed her
that Amravati was in a fit condition to give a statement; that she
went and met Amravati, who was in the ICU in Masina Hospital;
that she introduced herself and informed her that she had come
to record her dying declaration; that Amravati consented for the
same; that she asked Amravati, her name, age and other details,
pursuant to which, Amravati informed her how she had sustained
the burn injuries. PW14 has stated in her evidence in para 4, that
Amravati informed her that she sustained burn injuries on 14 th
April 2017 at about 12:30 noon. PW14 has deposed as to what
was disclosed to her by Amravati in para 4 of her evidence. The
same reads thus :
CONF-4-2023 & APEAL-434-2024-J.doc
"fnid g;kus tqU;k oknkrqu eqyhP;k vaxkoj izFke isVªksy
Vkdys- eqyxh frFkwu iGwu xsyh- uarj R;kus vejkorh
g;kaP;k vaxkoj isVªksy Vkdys o yk;Vj us vkx ykoyh-
R;kP;k cktwyk vtwu ,d L=h clyh gksrh R;kaP;k vaxkoj
lqn/kk isVªksy Vkdys vkf.k fryk i.k vkx ykxyh R;kph
eqyxh vkf.k vktwcktqP;k yksdkauh vejkorhyk okpo.;kpk
iz;Ru dsyk- ftrsanz ;kauh R;kauk lk;u gkWLfiVy yk ?ksÅu
vkys o lk;u gkWLfiVy ;sFks Hkjrh dsys- R;k uarj frpk
uojk vkyk o R;kaus o fnjkus efluk gkWLfiVy ;sFks Hkjrh
dsys-"
PW14 has further stated that she read over Amravati's
statement to her; that Amravati accepted it to be correct; that as
she could not take her signature, she took impression of her right
big toe and handed over the papers to the police. PW14 has
identified the dying declaration scribed by her and has identified
the toe impression of Amravati and her own signature. The said
dying declaration was recorded on 15 th April 2017 at about
4:35 pm and was marked as Exh. P-67.
It is pertinent to note that the Apex Court in Sher
Singh & Anr. vs. State of Punjab1 has held in para 16 as under :
1 (2008) 4 SCC 265
CONF-4-2023 & APEAL-434-2024-J.doc
"16 .......... What is essential is that the person recording
the dying declaration must be satisfied that the deceased was
in a fit state of mind. Where it is proved by the testimony of
the Magistrate that the declarant was fit to make the
statement without there being the doctor's opinion to that
effect, it can be acted upon provided the court ultimately
holds the same to be voluntary and truthful. A certificate by
the doctor is essentially a rule of caution and, therefore, the
voluntary and truthful nature of a statement can be
established otherwise."
In the facts, PW14-Deepika Parab, after making
necessary inquiry, recorded her dying declaration and as such,
there is no reason to disbelieve her testimony and dying
declaration recorded by her, in the absence of a certification from
the doctor.
There is no cross-examination of the said witness,
with respect to what was disclosed by Amravati to PW14 i.e. the
contents of dying declaration or that Amravati was not in a
position to speak. The only cross-examination of PW14 is to the
effect, that there is no separate register or document maintained
with regard to recording of dying declaration i.e. except Exh.P-
CONF-4-2023 & APEAL-434-2024-J.doc
67, there is no other document to show that she had recorded the
dying declaration; and that she had not taken any endorsement
on the dying declaration of the concerned medical officer. PW14
has denied the suggestion that she had not visited Masina
Hospital or that she had not met Amravati or that she was
deposing falsely at the behest of the police.
As noted aforesaid, there is no cross-examination of
this witness vis-a-vis what was disclosed to her by Amravati i.e.
the act of the accused of pouring petrol and setting her ablaze.
No doubt, there is no endorsement of any doctor, when PW14
recorded Amravati's statement, however, there is no challenge to
the same or with respect to Amravati's medical condition.
21 The prosecution examined PW10-Dr.Suhas
Abhyankar, the doctor, who treated Amravati (deceased) at
Masina Hospital. PW10-Dr. Abhyankar has stated that he was
working with the Masina Hospital as a Consultant Reconstructive
CONF-4-2023 & APEAL-434-2024-J.doc
Surgeon since 2006; that a patient by name Amravati was brought
to the hospital on 14th April 2017; that she was forwarded from
Sion Hospital; that they started giving her treatment, as soon as
she came to Masina Hospital; that the general condition of the
patient was poor; that she was admitted in the hospital at about
4:15 pm; that Amravati had 94% burn injuries on her face, neck,
both upper extremities, chest, back, buttocks, lower limbs, and
private parts; that the foot soles and some part of back were not
having burn injuries; and, that she was under treatment till 27 th
April 2017. PW10 has further deposed that from 25 th April
2017, Amravati's general condition deteriorated, as a result of
infection and septicimia, resulting in multi organ failure.
According to PW10, Amravati was initially in a position to speak
and thereafter, she became semiconscious and that on 27 th April
2017, she died because of the said injuries and complications.
PW10 has placed on record the admission form which is at
Exhibit P-52 and the Certificate which is at Exhibit P-54. PW10
has categorically stated that the injuries were flame burn injuries.
CONF-4-2023 & APEAL-434-2024-J.doc
In the postmortem report, Amravati's cause of death is stated to
be "infection and septicimia, resulting in multi organ failure".
In his cross-examination, PW10, although has
admitted that he was not present when Amravati was brought to
the hospital, he has stated that he was informed about Amravati's
condition at 4:15 p.m itself and hence, he knew her medical
condition and as such, had given instructions regarding treatment
to be given to Amravati. According to PW10, he had personally
examined the patient at 7:00 p.m on the same day of admission.
22 Taking into consideration the aforesaid evidence
vis-a-vis dying declaration, we have no manner of doubt that
the prosecution has proved the oral, as well as written dying
declarations made to the witnesses by legal, cogent and
admissible evidence. All the dying declarations, oral and
written corrobrate each other. This evidence in turn is also
corroborated by the occular testimony of PW1- Roshni and
CONF-4-2023 & APEAL-434-2024-J.doc
PW7-Kanta (injured).
23 The fact, that PW7-Kanta Eikka, injured witness
had also sustained injuries has been duly proved by PW16-Dr.
Sunil Pandey. PW16 was working at the Sion Hospital at the
relevant time. He has stated that on 14 th April 2017, Kanta
was brought to the hospital; that she gave history of homicidal
burns; that on examination, he found that Kanta had sustained
burns over right upper arm; burns injury over right foot; burns
over left foot; flame burns over right side of chest and
abdomen and flame burns over a small portion of back on right
side. He has stated that the said injuries were grevious in
nature and were life threatening. He has identified the medical
certificate, which bears his signature, Exh.P-72.
There is nothing in the cross-examination of PW16-
Dr.Sunil Pandey with respect to the disclosure made by Kanta
to him i.e. `history of homicidal burns'.
CONF-4-2023 & APEAL-434-2024-J.doc
24 As far as Angel, aged 2 years is concerned, it
appears that Angel sustained 60% burn injuries. PW11-
Dr.Siddharth Sawardekar has stated that he was attached to
the Sion Hospital as a Resident Doctor at the relevant time;
that on 22nd April 2017, he was assigned postmortem duty
alongwith another doctor; that the body of Angel was
forwarded by the police for postmortem, pursuant to which, he
conducted the postmortem on Angel on 22 nd April 2017.
According to PW11, on observing the body, he found 60%
burn injuries on Angel. On internal examination, he found
infections in lung and spleen. The cause of death stated by
PW11 is 'Septicemia following burns (unnatural)'. He has
identified his signature on the postmortem report, which is at
Exh.P-57. He has categorically deposed that the injuries to
Angel were such that it would cause death in natural course, if
left untreated.
25 The prosecution examined PW6-Suresh Valanju, the
CONF-4-2023 & APEAL-434-2024-J.doc
shop-keeper, who had sold the lighter to the accused. PW6 has
stated that he was running a stall by the name "Sadguru Krupa
Store" and would sell miscellaneous items at Band Stand; that he
knew the accused; that the accused had come to his shop on 14 th
April 2017 at 8:00 a.m and purchased a cigarette lighter from his
shop for Rs.25/-. He has identified the lighter (Article 9)
purchased from his shop.
In his cross-examination, PW6 has denied that he was
deposing falsely on the say of the police and that the accused had
not purchased a lighter from him.
26 Considering the evidence as stated aforesaid, we find
that the prosecution has proved the complicity of the accused in
the crime, beyond reasonable doubt.
27 Infact, the fact that the accused committed the said
act of throwing petrol on Amravati is not disputed by the
CONF-4-2023 & APEAL-434-2024-J.doc
accused. In this connection, it would be pertinent to note the
answers to the questions of the accused under 313 of Cr.P.C. To
question No. 3, when the accused was asked with respect to the
incident that had taken place 15 days prior to 14 th April 2017 i.e.
of lowering his pant and showing his private part to PW1-
Roshni, the accused has stated "मु झे छक्का क ा था इस जिलये मै ने
बताया, मु झे मालूम न ी जिक वो १७ साल जिक ै ". To question No. 6
that he poured petrol on PW1-Roshni, the accused has answered
in the affirmative i.e. "डाला मै ने". To the question No. 7 that
Roshni had stated that after pouring petrol, she started running
and that the accused poured petrol on everybody present there,
the accused answered, "बाकी लोगों के उपर न ी डाला". To question
No. 28 that on the day of the incident, the accused had come
there; that he was angry and had a kerosene bottle with him, the
accused replied that `he had a petrol bottle'. To question No. 30
put to the accused that Kanta (PW7) in her evidence, has stated
that the accused had poured kerosene on Amravati and some
drops fell on them and thereafter the accused had set her ablaze
CONF-4-2023 & APEAL-434-2024-J.doc
and in the said incident, she and her daughter-Angel also
sustained burn injuries, the accused replied `that he did not pour
kerosene, but he poured petrol'. To question No. 56 as to
whether the accused wanted to say anything more, the accused
replied as under :
"मे रे को छक्का जि जरा बोल र े थे . इसजिलये मै ने उनको जिजंदा
फुंक जिदया, मै ने कुछ जिकया न ीं. में उनसे बात भी न ीं कर र ा
था. मु झे दो बार छक्का जि जरा क ा."
28 From the aforesaid replies given by the accused in his
313 statement as well as the tenor of cross-examination of the
concerned witnesses, it is evident that the accused has not
challenged the act of throwing petrol on Amravati and PW1-
Roshni and of setting Amravati ablaze. The reason offered by the
accused is that he was called Hijda/Chhakka, as a result of which,
he committed the said act.
29 Although, during the course of hearing, learned
CONF-4-2023 & APEAL-434-2024-J.doc
counsel for the accused submitted that the accused was suffering
from mental illness at the time of the incident, there is nothing in
the cross-examination suggesting the same, nor have any medical
case papers been produced to show that the accused was
undergoing any treatment for his mental illness at the time when
the incident took place or prior thereto. However, it appears that
during the course of the trial, the advocate for the accused had
filed an application on 18th September 2021, seeking medical
check-up and treatment for the accused, since according to the
advocate for the accused, the accused was not mentally stable. In
the said application which is at page 97 of the paper-book
(Exhibit 38), the advocate for the accused has stated that when
the advocate interacted with the accused on 2 nd September 2021,
he was not speaking anything relevant; that he was speaking
incoherently and that he told the advocate that the complainant
and her mother (now deceased) used to call him Hijda and
Chhakka. Accordingly, the advocate for the accused prayed that
the accused be sent to J.J. Hospital for his medical examination,
CONF-4-2023 & APEAL-434-2024-J.doc
i.e. for assessing his mental condition and for submitting a report.
It appears that the trial Court allowed the said application and
sent the accused for medical check-up to the Department of
Psychiatry, J.J. Hospital. It appears from the document which is
at page 102 of the paper-book that the accused was examined by
a panel of three mental health experts and accordingly a report
was submitted by them dated 23 rd October 2021 to the Court.
According to the said mental health experts, the accused was
assessed on four days between 29 th September 2021 to 18th
October 2021. Accordingly the said Panel of three doctors
submitted their report to the Superintendent, J.J. Group of
Hospitals dated 23rd October 2021 with the psychiatric
evaluation of the accused. The same reads thus :
"MENTAL HEALTH REPORT
Mr. Deepak Birbhahadur Jath, age 32 years, Hindu by
religion, an Inmate in Mumbai Central Prison, was
referred by Superintendent, JJH for Psychiatric evaluation
and reporting.
He was assessed by Associate Professor, Assistant Professor
and Junior resident between 29/09/2021
CONF-4-2023 & APEAL-434-2024-J.doc
to 18/10/2021 for 4 days. On Mental Status Examination:
He is conscious, cooperative, communicative; Attention is
aroused and sustained; eye to eye contact initiated and
maintained; rapport established; oriented to time, place
and person; Speech and thought: continuous, coherent,
occasionally irrelevant, pressure of speech+, clang
association + Delusion of persecution+, Delusion of
grandiose identity and ability+He was advised treatment
but refused as he denied having any illness. Concept is
intact; no perceptional abnormality, Mood euthymic,
Affect- Hostile; Insight-Absent; Judgment- Impaired
IMPRESSION: 1. He is suffering from Psychosis which is
a severe Mental Illness.
2. He is of unsound Mind at present.
3. He requires treatment and admission
preferably in RMH Thane in view of
severity of mental illness and lack of
Insight. 4. His mental state long back (at
the time of crime) cannot be determined."
30 It is also a matter of record that the accused was
declared unfit for trial on 23 rd October 2021 and the trial was
not conducted for the said reason. The trial proceeded from 10 th
June 2022, only when he was declared fit for trial.
CONF-4-2023 & APEAL-434-2024-J.doc
31 Taking all the aforesaid factors into consideration, we
now proceed to consider whether the facts in hand warrant
confirmation of the death sentence of the accused i.e. whether
the case in hand can be termed as a 'rarest of rare case'.
32 Before we proceed to consider whether the case in
hand warrants confirmation of death sentence or not, or whether
the case falls in the category of 'rarest of rare case', it would be
apposite to consider the law on this subject.
33 In order to consider the same, we, vide order dated
8th July 2024, called for a report with respect to the conduct of
the accused as well as the psychiatric and psychological report
and all medical case papers with respect to his mental and
physical health/examination done, till that date, having regard to
the judgment of the Apex Court in Manoj & Ors. v. State of
Madhya Pradesh2. The said report and the relevant documents
were submitted to this Court on 11 th July 2024. The opinion
2 (2023) 2 SCC 353
CONF-4-2023 & APEAL-434-2024-J.doc
given by the Medical Officer, Kolhapur Central Prison in the
report dated 10th July 2024, is reproduced as under :
"As per opinion given today by Psychiatrician from
Govt. C.P.R. Hospital, Kolhapur the provision has been
kept by jail authority to sent the prisoner to Sassoon
Hospital, Pune for his ailments.
At present the health condition of the said prisoner is
clinically stable. He is conscious, Oriented, Ambulatory and
Hemodynamically stable."
34 As far as the conduct of the accused in jail is
concerned, the Superintendent of Kolhapur Central Prison, has
submitted the report dated 10th July 2024, which reads thus :
"कोल् ापूर मध्यवती+ कारागृ ातील मृ त्यु दं ड जि.क्षा बं दी
d.C/ ८०६२ जिदपक बीर ब ादुर जाट ा जिद.- २७.०१. २०२४ रोजी
मुं बई मध्यवती+ कारागृ ये थन ू दाखल झाले ला आ े . सदर बं दी
मृ त्यु दं डाची जि.क्षा भोगत असल्यामु ळे बं दीस सु रक्षा कारणास्तव
कारागृ ातील अजितसु रक्षा जिवभागात (अं डासे ल) ठे वण्यात आले ले
आ े . सदर बं दीने कारागृ ात दाखल झाले पासून कोणते ी
गै रवत+न केले ले नसून, बं दीची कारागृ ातील वतु +णक ू
समाधानकारक आ े . बं दी कारागृ ातील दै नंजिदन कामे स्वतः
करीत आ े . बं दीचे कारागृ ातील अजिधकारी व कम+चारी यांचे.ी
वागणूक चां गली आ े . कारागृ ीन जि.स्त व जिनयमांचे पालन
करतो. सदर बं दी मृ त्यु दं डाची जि.क्षा भोगत असल्यामु ळे त्यास
कारागृ ात काम दे ण्यात आले ले ना ी."
CONF-4-2023 & APEAL-434-2024-J.doc
English translation of the above report is as under :
"Kolhapur Central Jail Death Penalty Convict No.
C/8062 Deepak Bir Bahadur Jat has been admitted from
Mumbai Central Jail on 27.01.2024. As the said convict is
serving the death penalty, the convict has been kept in the
High Security Section (Andacell) of the prison for security
reasons. The said convict has not committed any
misbehaviour since his incarceration and the behaviour of
the convict in the prison is satisfactory. The convict is doing
the daily tasks in the prison by himself. Convict's behaviour
towards Prison Officials and Staff is good. Convict follows
discipline and rules of the prison. As the said convict is
serving the death penalty, he has not been given work in the
prison."
The law with respect to when death sentence can be
awarded and the factors to be borne in mind and to be taken into
consideration, is no longer res integra.
35 In Bachan Singh v. State of Punjab3, the Apex Court in
Paras 213, 214, 218 and 221 has observed thus :
"213. We will first notice some of the aggravating
circumstances which, in the absence of any mitigating
circumstance, have been regarded as an indication for
imposition of the extreme penalty.
3 (1982) 3 SCC 24
CONF-4-2023 & APEAL-434-2024-J.doc
214. Pre-planned, calculated, cold-blooded murder has
always been regarded as one of an aggravated kind. In
Jagmohan, it was reiterated by this Court that if a murder
is "diabolically conceived and cruelly executed", it would
justify the imposition of the death penalty on the
murderer. The same principle was substantially reiterated
by V.R. Krishna Iyer, J., speaking for the Bench, in Ediga
Anamma, in these terms: The weapons used and the
manner of their use, the horrendous features of the crime
and hapless, helpless state of the victim, and the like, steel
the heart of the law for a sterner sentence.....
Aggravating circumstances: A Court may, however, in the
following cases impose the penalty of death in its
discretion: (a) if the murder has been committed after
previous planning and involves extreme brutality; or (b) if
the murder involves exceptional depravity; ...........
218. Stated broadly, there can be no objection to the
acceptance of these indicators but as we have indicated
already, we would prefer not to fetter judicial discretion
by attempting to make an exhaustive enumeration one
way or the other.......
221. 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
CONF-4-2023 & APEAL-434-2024-J.doc
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. 222. We will do no more than to say that these
are undoubtedly relevant circumstances and must be given
great weight in the determination of sentence. Some of
these factors like extreme youth can instead be of
compelling importance. ......
Judges should never be blood-thirsty. Hedging of
murderers has never been too good for them. Facts and
figures, albeit incomplete, furnished by the Union of
India, show that in the past, Courts have inflicted the
extreme penalty with extreme infrequency-a fact which
attests to the caution and compassion which they have
always brought to bear on the exercise of their sentencing
discretion in so grave a matter. It is, therefore, imperative
to voice the concern that courts, aided by the broad
illustrative guidelines indicated by us, will discharge the
onerous function with evermore scrupulous care and
humane concern, directed along the highroad of
legislative policy outlined in Section 354(3), viz, that for
persons convicted of murder, life imprisonment is the rule
and death sentence an exception. A real and abiding
concern for the dignity of human life postulates resistance
to taking a life through law's instrumentality. That ought
not to be done save in the rarest of rare cases when the
alternative option is unquestionably foreclosed "
CONF-4-2023 & APEAL-434-2024-J.doc
36 In Swamy Shraddananda (2) v. State of Karnataka 4,
the Apex Court in paras 91 to 93 has observed as under :
"91. The legal position as enunciated in Pandit
Kishori Lal, Gopal Vinayak Godse-(2000) 7 SCC 626,
Mau Ram-(1981) 1 SCC 107, Ratan Singh-(1976) 3 SCC
470 and Shri Bhagwan-(2001) 6 SCC 296 and the
unsound way in which remission is actually allowed in
cases of life imprisonment make out a very strong case to
make a special category for the very few cases where the
death penalty might be substituted by the punishment of
imprisonment for life or imprisonment for a term in
excess of fourteen years and to put that category beyond
the application of remission.
92. The matter may be looked at from a slightly
different angle. The issue of sentencing has two aspects. A
sentence may be excessive and unduly harsh or it may be
highly disproportionately inadequate. When an accused
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
4 (2008) 13 SCC 767
CONF-4-2023 & APEAL-434-2024-J.doc
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,
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-(1980) 2 SCC 684 besides being in
accord with the modern trends in penology."
37 In Rajendra Pralhadrao v. State of Maharashtra 5, the
Apex Court held that while awarding death penalty, it is
mandatory to consider the probability that the convict can be
reformed and rehabilitated in the society and that the same must
be seriously and earnestly considered.
5 (2019) 12 SCC 460
CONF-4-2023 & APEAL-434-2024-J.doc
38 In Mohinder Singh v. State of Punjab 6, the Apex
Court in para 25 observed thus :
"25. It is well settled law that awarding of life sentence is
a rule and death is an exception. The application of the
"rarest of rare" case principle is dependent upon and
differs from case to case. However, the principles laid
down and reiterated in various decisions of this Court
show that in a deliberately planned crime, executed
meticulously in a diabolic manner, exhibiting inhuman
conduct in a ghastly manner, touching the conscience of
everyone and thereby disturbing the moral fiber of the
society, would call for imposition of capital punishment in
order to ensure that it acts as a deterrent. While we are
convinced that the case of the prosecution based on the
evidence adduced confirms the commission of offence by
the appellant, however, we are of the considered opinion
that still the case does not fall within the four corners of
the "rarest of rare" cases."
39 We have examined the facts and the evidence minutely as
well as the parameters laid down in various judgments by the Apex
Court. After examining the same, we do not find that this case, in any
way, falls in the category of 'rarest of rare case' warranting death
sentence to the accused. As noted above, the accused has infact
6 (2013) 3 SCC 294
CONF-4-2023 & APEAL-434-2024-J.doc
admitted to committing the offence. The reason according to the
accused was that he was being called Hijda and Chhakka by PW1-
Roshni and Amravati.
40 In the said incident, Amravati and an innocent young
girl-Angel, aged 2 years lost their lives and one Kanta (PW7)
sustained serious burn injuries. There is no past history as far as
the accused is concerned. We find that the intention of the
accused was clear i.e. to cause the death of Amravati and PW1-
Roshni. Of course, Roshni (PW1) survived as she ran away after
petrol was poured on her, however, Amravati sustained burn
injuries and succumbed to the same. Angel and Kanta, who were
sitting next to Amravati, also sustained burn injuries i.e. Angel
died and Kanta received serious burn injuries. Thus, the act of
the accused resulting in the death of Amravati and Angel, would
squarely fall under Section 302 of the IPC, and the act of causing
injuries to PW6-Kanta, under Section 307 of the IPC.
CONF-4-2023 & APEAL-434-2024-J.doc
41 If evidence of Kanta (PW7) is taken into
consideration, she has categorically in her evidence, stated that
the accused threw petrol on Amravati and since she and Angel
were sitting next to Amravati, a few drops of petrol fell on her
and Angel. Kanta (PW7) has further stated that the accused set
Amravati ablaze, however, since they were next to Amravati, they
also sustained burn injuries. As noted above in the said incident,
Kanta sustained grievous injuries i.e. 60% burn injuries and her
daughter Angel succumbed to death.
42 We find that the accused had come with the intent of
killing Amravati and PW1-Roshni and not Kanta and her
daughter Angel, however, in the process, both Amravati and
Angel sustained injuries and succumbed to the same, and Kanta
sustained injuries as stated aforesaid. Thus, the conviction
awarded to the accused for causing the death of Amravati and
Angel and injury to Kanta needs to be confirmed. We, in the
facts, do not find that imposition of death penalty is the only
CONF-4-2023 & APEAL-434-2024-J.doc
alternative, having regard to the evidence that has come on
record and we also do not find that the case falls in the category
of 'rarest of rare cases' warranting death sentence. Hence, the
death sentence awarded to the accused for causing the death of
Amravati and Angel requires to be commuted.
43 Accordingly, we pass the following order :
ORDER
(i) Confirmation Case No. 4/2023 is dismissed;
(ii) Appeal is partly allowed;
(iii) The impugned judgment and order dated 7 th
November 2023, passed by the learned Additional
Sessions Judge, Greater Bombay in Sessions Case
No.562/2017, insofar as, it convicts the accused for
the offence punishable under Section 302 of the IPC
for causing the death of Amravati and Angel, stands
confirmed, however, the sentence of death awarded to
CONF-4-2023 & APEAL-434-2024-J.doc
the accused is commuted to imprisonment of life. The
sentence of fine awarded is, however, maintained.
(iv) The conviction and sentence awarded to the
accused vide the said judgment and order for the
offence punishable under Section 307 of the IPC i.e.
for causing injuries to Kanta, stands confirmed. The
sentence of fine awarded is maintained.
44 In view of the above order, nothing survives for
consideration in the Interim Application. The same stands
disposed of accordingly.
45 All concerned to act on the authenticated copy of this
judgment.
SHYAM C. CHANDAK, J. REVATI MOHITE DERE, J.
